EHRLICH v. MCINERNEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JONATHAN EHRLICH, 1:17-cv-879 (NLH/KMW)

Plaintiff, OPINION

v.

DENNIS P. MCINERNEY, ESQ.,

THOMAS W. SASAKI, ERIC

SASAKI, RE/MAX WORLD CLASS

REALTY, O'HARA APPRAISALS,

AND MARTIN T. O'HARA,

Defendants.

APPEARANCES:

PETER A. OUDA

PETER A. OUDA, LLC

19 NORTH BRIDGE STREET

SOMERVILLE, NEW JERSEY 08876

On behalf of Plaintiff

JOHN L. SLIMM

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN

15000 MIDLANTIC DRIVE, SUITE 200

P.O. BOX 5429

MOUNT LAUREL, NEW JERSEY 08054

On behalf of Defendant Dennis P. McInerney

MICHAEL S. MIKULSKI II

PHILIP JOHN DEGNAN

CONNOR WEBER & OBERLIES, P.C.

304 HARPER DRIVE

SUITE 201

MOORESTOWN, NJ 08057

On behalf of Defendants Thomas W. Sasaki, Eric Sasaki, and

Re/Max World Class Realty

ANNE M. DALENA

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP

200 CAMPUS DRIVE

FLORHAM PARK, NJ 07932

On behalf of O'Hara Appraisals and Martin T. O'Hara

HILLMAN, District Judge

This matter arises from a decades’ worth of litigation

regarding the Estate of Richard D. Ehrlich, who died on

September 21, 2009.1 One of the claims lodged by Plaintiff,

Jonathan Ehrlich, the decedent’s nephew, in his original

complaint in this action was a breach of fiduciary duty claim

against Defendant Dennis P. McInerney, the temporary

administrator of the Estate. On December 13, 2017, this Court

dismissed Plaintiff’s claims against McInerney, finding that

Plaintiff’s claims were barred by New Jersey’s entire

controversy doctrine and N.J.S.A. 3B:17-8.2

1 This Court has diversity jurisdiction pursuant to 28 U.S.C. §

1332(d), as the parties are diverse and the amount in

controversy exceeds $75,000.

2 N.J.S.A 3B:17-8, Effect of judgment allowing account, provides:

A judgment allowing an account, including a guardian's

intermediate account, after due notice, shall be res

adjudicata as to all exceptions which could or might have

been taken to the account, and shall constitute an approval

of the correctness and propriety of the account, the

legality and propriety of the investments and other assets,

the legality and propriety of the changes in investments or

other assets, and the legality and propriety of other

matters, and also shall exonerate and discharge the

fiduciary from all claims of all interested parties and of

Currently pending before the Court is the motion of

Plaintiff pursuant to Fed. R. Civ. P. 60(b) to vacate the

Court’s dismissal of his claims against McInerney because of

evidence obtained from McInerney’s deposition as a fact witness

with regard to Plaintiff’s claims against the other defendants.

As to the other defendants, Plaintiff claims that Re/Max World

Class Realty, Thomas W. Sasaki, and Eric Sasaki (“Realtor

defendants”) acted negligently in the real estate listing of two

of the decedent’s properties. Plaintiff also claims that O’Hara

Appraisals and Martin T. O’Hara (“Appraisal defendants”)

negligently prepared appraisals for the two properties. Also

pending before the Court are the motions of these defendants for

summary judgment.

McInerney has opposed Plaintiff’s Rule 60(b) motion.

Plaintiff has partially opposed the Realtor defendants’ motion

for summary judgment. Plaintiff has not filed an opposition to

those in privity with or represented by interested parties

except:

a. For the investments and other assets in the

fiduciary's hands at the close of the period covered

by the account, and assets which may come into his

hands after the close of the account;

b. Insofar as exceptions to the account shall be taken

and sustained; and

c. As relief may be had from a judgment in any civil

action.

the Appraisal defendants’ summary judgment motion.

For the reasons expressed below, the Court will deny

Plaintiff’s motion, and grant Defendants’ motions.

BACKGROUND

The Court restates the relevant background from the Court’s

December 13, 2017 Opinion (Docket No. 31), which recounted the

June 29, 2012 decision by the New Jersey Superior Court,

Appellate Division, In re Estate of Ehrlich, 47 A.3d 12 (N.J.

Super. Ct. App. Div. 2012), certif. denied, 59 A.3d 602 (N.J.

2013), appeal dismissed, 64 A.3d 556 (N.J. 2013). Decedent was

a trust and estates attorney in Burlington County, New Jersey.

Id. at 13-14. He died on September 21, 2009, with his only next

of kin being his nephews, Todd Ehrlich and Plaintiff, and his

niece Pamela Venuto. Id. at 14. While Decedent had not had

contact with Todd or Pamela for over twenty years, he maintained

a close relationship with Plaintiff, who he had told friends was

the person to contact if he were to die and was the person to

whom he would leave his estate. Id.

Upon learning of Decedent’s death, a search for Decedent’s

will ensued. Id. Plaintiff located a copy of a purported will

in a drawer in Decedent’s home. Id. On December 17, 2009,

Plaintiff filed a complaint seeking to have the purported will

admitted to probate. Id. Todd and Pamela objected. Id.

McInerney, who had previously been named as Trustee of

Decedent’s law practice, was appointed as temporary

administrator. Id. While McInerney was ordered to inspect

Decedent’s home, no other document purporting to be Decedent’s

will was ever located. Id.

The purported will that was recovered provided a specific

bequest of $50,000 to Pamela, a specific bequest of $75,000 to

Todd, twenty-five percent of the residuary to pass through a

trust to a friend, and seventy-five percent of the residuary to

pass to Plaintiff. Id. On April 20, 2011, the proffered will

was admitted to probate. Id. at 13. The court then denied a

motion for reconsideration on June 20, 2011. Id. The Appellate

Division then affirmed, finding the will was properly admitted

to probate. Id. at 19. While the decision was appealed to the

New Jersey Supreme Court, Plaintiff’s complaint provides that

the matter was settled by the siblings.

On January 18, 2013, Judge Karen L. Suter of the Superior

Court of New Jersey, Chancery Division granted McInerney’s

motion for instructions3 and to allow a settlement with regard to

two actions pending against the Estate arising from Decedent’s

law practice: IMO Estate of Farias v. Estate of Ehrlich and

3 New Jersey Court Rule 4:95-2, Summary Action by Fiduciary for

Instructions, provides: “A summary action pursuant to R. 4:83

may be brought by executors, administrators, guardians or

trustees for instructions as to the exercise of any of their

statutory powers as well as for advice and directions in making

distributions from the estate.”

Farias v. Estate of Ehrlich. McInerney filed the motion for

instructions believing settling the matters was in the best

interest of the Estate, as he believed the Estate could

potentially be liable for more than the settlement amount.

Plaintiff opposed the motion, arguing “more information is

required before a determination of the propriety of the

settlement can be made.” Judge Suter determined McInerney was

“acting within his powers as temporary administrator” and thus

approved the settlement. The settlement was thereafter

consummated.

On July 15, 2011, Judge Michael J. Hogan of the Superior

Court of New Jersey, Chancery Division approved McInerney’s

first intermediate account on behalf of the Estate. By a May

23, 2012 Order, Judge Suter denied Plaintiff’s motion to vacate

the July 15, 2011 court order.4 Plaintiff appealed the denial of

his motion to vacate. In re Estate of Ehrlich, 2013 WL 2476490.

The Appellate Division affirmed, stating:

4 The Appellate Division provided the following background

information regarding the underlying motion. In re Estate of

Ehrlich, No. 4714-11, 2013 WL 2476490, at *1 (N.J. Super. Ct.

App. Div. June 11, 2013). Plaintiff did not file any exceptions

to the first intermediate accounting, but after an order was

entered approving it filed a motion to remove the temporary

administrator, sought the turnover of all papers and files, and

sought an audit and investigation of the administration of the

Estate. Id. After that motion and a motion for reconsideration

were denied, Plaintiff moved to vacate the order approving the

accounting, predominantly on the grounds that the accounting

failed to include certain assets of the Estate. Id.

The present case provides no basis for disturbing the

July 15, 2011 order approving respondent’s intermediate

accounting. Appellant, by his own admission, knew the

accounting to be incomplete upon his receipt of the

document yet neither filed any exceptions nor voiced any

objection to the accounting at the hearing on its

approval. Moreover, all acknowledged that the

accounting was interim in nature and that the final

accounting would include the assets belatedly brought to

the administrator’s attention by appellant.

Id. at *1.

In a July 25, 2014 decision, Judge Mary C. Jacobson of the

Superior Court of New Jersey, Chancery Division considered

exceptions to a final accounting filed for Decedent’s Estate, a

motion seeking removal of McInerney as temporary administrator

and appointment of Plaintiff as executor, and applications by

McInerney and two other attorneys for fees payable from the

Estate.

In the course of considering the exceptions to the

accounting, Judge Jacobson considered Plaintiff’s complaint that

the sale price of Decedent’s home was substantially less than

its value as set forth in prior appraisals. Judge Jacobson

found, while the property had originally been appraised around

$350,000 at Decedent’s death and for a couple years thereafter,

Defendant had only received offers well below the original

appraisal value. McInerney thus sought two updated appraisals,

which determined the appraisal value had dropped to somewhere

around $225,000 to $250,000, with necessary repairs

approximating over $107,000. McInerney thus sought instructions

from the court as to whether he should accept an offer of

$212,500 or make repairs to the property to try to rent it until

the market improved. After hearing Plaintiff’s opposition,

Judge Suter approved and authorized the proposed sale.

Judge Jacobson concluded:

The record reveals no action taken by Mr. Ehrlich

to stop the sale after Judge Suter’s ruling. Moreover,

Mr. Ehrlich has presented no evidence that would allow

this court to set aside Judge Suter’s Order . . . . To

allow Mr. Ehrlich to re-litigate this issue after the

property has been sold in an effort to obtain a surcharge

would be unjust and oppressive to the Temporary

Administrator. When a fiduciary has properly applied to

the probate court for advice and direction with respect

to a transaction involving the administration of the

estate and acts in accordance with the court’s

instructions, it would be inequitable to allow an

exceptant who had an opportunity to be heard at the time

of the application to the court for instructions to later

pursue the same objection through an exception to the

final accounting. By that time the Temporary

Administrator’s actions had been sanctioned by the court

and should be given res judicata effect. To allow

otherwise by an exceptant would create havoc in the

administration of estates, leaving none but the

foolhardy willing to serve as fiduciaries. Mr.

McInerney proceeded to sell the property only after

court approval and an opportunity for Mr. Ehrlich to be

heard. Mr. Ehrlich’s exception to the sale of the

property must therefore be denied.

The court also addressed Plaintiff’s allegation that

Defendant did not take adequate steps to locate Decedent’s will

on his computer:

Even if this claim is true, Mr. Ehrlich offers no

explanation as to how this failure caused any loss to

the Estate. The writing that was admitted to probate

pursuant to N.J.S.A. 3B:3-3 by Judge Hogan, who issued

a Judgment to this effect that was upheld by the

Appellate Division, was a paper copy of a will, unsigned

by the decedent and any witnesses, but which bore a

notation in the handwriting of the decedent stating,

“original mailed to H.W. Van Sciver 5/20/00.” . . .

Because this document was admitted to probate, any

failure to locate a draft of this document on the

decedent’s computer caused no loss to the Estate or to

Mr. Ehrlich. Whether the decedent had any other draft

of a different purported will on his computer and whether

that different draft would have benefited Mr. Ehrlich is

mere speculation. Moreover, any draft of an alleged

will retrieved from the decedent’s computer would lack

the handwritten notation that both the chancery court

and the Appellate Division relied upon in deciding that

the decedent intended to constitute his will.

Also in addressing the exceptions, the state court stated

Plaintiff’s “numerous allegations of duplicitous conduct” by

McInerney were “factually unsupportable in the record before the

court.” Rather, the court found McInerney “acted appropriately

in bringing issues to the attention of the court for direction

and presenting his accountings to the court for approval.”

Later in the opinion, in addressing the motion to remove

McInerney as temporary administrator, the court stated: “Mr.

Ehrlich has not demonstrated that there has been a flagrant

dereliction of duty by the Temporary Administrator . . . .”

Judge Jacobson ultimately approved the account in all respects.

In an October 30, 2015 Motion Hearing, Judge Jacobson

considered a motion by McInerney seeking an order awarding

attorneys’ fees and costs to him, providing direction as to

payment of an attorneys’ fee award, and seeking direction as to

the distribution of the balance of the Estate, among other

requests. Plaintiff opposed the motion, largely based on the

alleged failure of McInerney to pursue a particular asset of the

Estate – a condominium titled in Decedent’s name in the Harbour

House Towers of Freeport in the Grand Bahamas.

McInerney certified he was not made aware Decedent had an

interest in property in the Bahamas, and if he had been so

aware, he would have taken action to transfer the property to

the Estate. Judge Jacobson concluded:

The Court is not convinced that Mr. McInerney, on

the basis of the record before it, was ever informed

about the Bahamas property and . . . made aware that it

was something he should investigate. Jonathan Ehrlich

himself had access to the decedent’s files and

documents. It is throughout the record of this lengthy

estate litigation that he had removed documents and

files prior to Mr. McInerney’s appointment as

administrator. . . .

. . . .

N.J.S.A. 3B:17-8 provides that a judgment allowing

an account after due notice shall be res adjudicata as

to all exceptions which could or might have been taken

to the account and shall constitute, exonerate and

discharge the fiduciary from all claims of all

interested parties, and the statute was relied upon by

the Appellate Division in the earlier estate litigation

in refusing to allow Mr. Ehrlich to raise issues as to

Mr. McInerney’s performance that could have been raised

in the first accounting but were not . . . .

Since Mr. Ehrlich was aware of the claim that the

decedent owned a condominium in the Bahamas prior to the

first and second accountings and failed to file an

exception in this regard to either accounting the Court

finds that the judgments approving both accountings

constitute res adjudicata and eliminate any liability on

the part of Mr. McInerney with regard to the Bahamas

property.

Similarly, in addressing McInerney’s fee request, the court

noted Plaintiff “claim[ed] that the Estate ha[d] been mishandled

in many respects,” but the court found Plaintiff’s allegations

meritless.5

DISCUSSION

1. Plaintiff’s Motion for relief under Rule 60(b)

In his now-dismissed breach of fiduciary claim, Plaintiff

alleged that, as a court-appointed fiduciary, McInerney “owed a

common law and statutory duty of care to the beneficiaries and

to the estate.” The complaint claimed that McInerney breached

his fiduciary duty to Plaintiff and breached his duty, as an

attorney, to comply with the Rules of Professional Conduct –

specifically Rules 3.3 and 4.1.6 Relevant to Plaintiff’s Rule

60(b) motion, Plaintiff had claimed in his complaint:

•

“Mr. McInerney in contravention of his fiduciary role

also severely undersold estate assets such as the

decedent’s home in Delanco, New Jersey. The home was

appraised at $350,000.00 but it was undersold by over

$100,000.00.”

5 The Court notes that there were additional proceedings and

issues before the state court not addressed in this Opinion.

This Court recites only those proceedings, issues, and findings

it finds necessary for deciding this Opinion.

6 RPC 3.3 concerns a lawyer’s candor toward the tribunal, which

directs, among other things, that a lawyer should not knowingly

make a false statement about a material fact, or fail to

disclose a material fact, to the court. RPC 4.1 concerns a

lawyer’s obligation to make truthful statements to third

parties.

•

“[H]e had listed for sale the decedent’s law office [43

West Broad Street, Burlington, New Jersey] for $300,000

but as of 2014 he suggested in open court before Judge

Jacobson that the property should be donated because it

had little value.”

In his Rule 60(b) motion, Plaintiff contends that testimony

elicited from McInerney’s deposition as a fact witness relative

to Plaintiff’s claims against the Realtor defendants and the

Appraisal defendants revealed two new claims he could assert

against McInerney, both of which he was unaware until

McInerney’s deposition. Plaintiff claims he only recently

learned of the following:

(1) McInerney retained Defendant Thomas Sasaki of Haines &

Haines who advised him immediately in a letter dated September

9, 2011 that a $300,000 listing price for the West Broadway

property was too high and suggested a listing price of

$169,000.00, over a 40% reduction from the appraisal of the

$300,000.00. McInerney had previously sent a letter to Eric

Sasaki on July 11, 2011 directing that the property be listed

for $300,000 based on the appraisal that he sent to him. It

remained on the market until it was sold in 2015 by Plaintiff

for $64,000. Thomas Sasaki confirmed at his deposition that he

gave the September 2011 advice to McInerney.

(2) Pursuant to the subpoena served upon McInerney, he

provided a document dated May 2015 referencing a tax sale

certificate and an offer to redeem the tax sale certificate.

Plaintiff claims that he had no idea that McInerney was

advised as early as September 2011 that the West Broad Street

property was listed too high and that he was directed to reduce

it to $169,000. Plaintiff claims that the property remained on

the market from 2011 to 2015 at an inflated price despite

McInerney being advised by a professional that he retained in

2011 that the listing was way too high. Plaintiff claims that

he could not have known it prior to that time because that

letter was not produced until McInerney’s deposition. Plaintiff

argues that this new fact suggests a new cause of action for

breach of fiduciary duty that was not part of the December 2017

dismissal, and about which Plaintiff was unaware until the last

several months.

Plaintiff also argues that he never knew of the tax

certificate sale until it was produced in discovery in

preparation for depositions, and had this been known it would

have been brought up in the estate matter. Plaintiff claims

that he thereafter retained a searcher to perform a tax sale

search which revealed 57 properties with unresolved tax lien

certificates held by the decedent. Plaintiff claims there was

never an investigation into these tax sale certificates and one

should be undertaken into all of these properties to see if any

claims have been irretrievably lost.

The Court does not find that Plaintiff’s purported new

evidence warrants relief under Rule 60(b).

Rule 60(b) provides:

(b) Grounds for Relief from a Final Judgment, Order, or

Proceeding. On motion and just terms, the court may relieve

a party or its legal representative from a final judgment,

order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable

neglect;

(2) newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to

move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an

opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or

discharged; it is based on an earlier judgment that

has been reversed or vacated; or applying it

prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

As a primary matter, a Rule 60(b) motion only applies to a

final judgment, order, or proceeding. The Court’s December 13,

2017 dismissal of Plaintiff’s claims against McInerney does not

constitute a “final judgment” under Rule 60(b). See Penn West

Associates, Inc. v. Cohen, 371 F.3d 118, 124–25 (3d Cir. 2004)

(noting that Rule 60(b) allows a party to seek relief only from

a “final judgment, order, or proceeding . . .,” and the

application of the word “final” is clarified by the Advisory

Committee Notes, which explain that “the qualifying word ‘final’

emphasizes the character of the judgments, orders or proceedings

from which Rule 60(b) affords relief; and hence interlocutory

judgments are not brought within the restrictions of the rule,

but rather they are left subject to the complete power of the

court rendering them to afford such relief from them as justice

requires”); State National Insurance Company v. County of

Camden, 824 F.3d 399, 406 (3d Cir. 2016) (explaining that Rule

60(b) grants the district court the power to relieve a party

from a “final judgment, order, or proceeding,” and the district

court’s order dismissing one defendant - and not all of the

defendants - was not a final order, but rather an interlocutory

order, thus making the plaintiff’s Rule 60(b) motion not the

proper avenue by which to challenge the defendant’s dismissal).

Thus, Plaintiff’s motion for relief under Rule 60(b) is not

ripe until the Court resolves Plaintiff’s claims against all

defendants.7 The Court, however, will consider the arguments

advanced by Plaintiff in his motion pursuant to the Court’s

7 McInerney points out that Plaintiff’s motion for relief under

Rule 60(b)(2) is untimely. Rule 60(c)(1) provides that a Rule

60(b) motion “must be made within a reasonable time--and for

reasons (1), (2), and (3) no more than a year after the entry of

the judgment or order or the date of the proceeding.” Fed. R.

Civ. P. 60(c)(1). Plaintiff’s Rule 60(b)(2) motion cannot be

late because it is premature.

inherent authority to reconsider its prior orders. See State

National, 824 F.3d at 406 (“Apart from Rule 60(b), the District

Court has the inherent power to reconsider prior interlocutory

orders.”).

With regard to Plaintiff’s proffer of two pieces of

purported “new evidence,” “newly discovered evidence is ‘(1)

material and not merely cumulative, (2) could not have been

discovered prior to trial through the exercise of reasonable

diligence, and (3) would probably have changed the outcome of

the trial.’” MZM Construction Company, Inc. v. New Jersey

Building Laborers’ Statewide Benefit Funds, 2019 WL 3812889, at

*10 (D.N.J. Aug. 14, 2019) (quoting Bohus v. Beloff, 950 F.2d

919, 930 (3d Cir. 1991)) (other citations omitted). The “new

evidence” proffered by Plaintiff would not change the basis of

the Court’s dismissal of Plaintiff’s claims against McInerney.

First, the state court squarely addressed Plaintiff’s

concerns regarding the pricing of the West Broad Street

property. As this Court previously found, any claims based on

what the state court judge already considered are barred.

(Docket No. 31 at 21-23.)

Second, with regard to Plaintiff’s claim that McInerney

never conducted an investigation into the tax sale certificates

of the decedent, the state court also directly addressed

Plaintiff’s exceptions to McInerney’s accounting, and after the

surrogate audited it without exception, it approved his final

accounting. (Id. at 22-23.) It was therefore the province of

the state court to determine whether McInerney’s accounting was

incomplete. See N.J.S.A. 3B:7-8 (providing that a judgment

allowing an account shall be res judicata as to all parties who

received notice and as to all exceptions which could or might

have been taken to the account, and shall constitute an approval

of the correctness and propriety of the account . . . and the

legality and propriety of other matters and also shall exonerate

and discharge the fiduciary from all claims of interested

parties and of those in privity with or represented by

interested parties).

Even accepting as true Plaintiff’s claim that he could not

have advanced an exception in the state court action about the

tax sale certificates because he only discovered the issue now,

Plaintiff’s concern cannot be advanced here. The state court

approved of the accounting, and any challenge to that accounting

as sanctioned by the state court must be directed to that forum.8

8 See N.J. Ct. R. 4:50-1 (“On motion, with briefs, and upon

such terms as are just, the court may relieve a party or the

party's legal representative from a final judgment or order for

the following reasons: (a) mistake, inadvertence, surprise, or

excusable neglect; (b) newly discovered evidence which would

probably alter the judgment or order and which by due diligence

could not have been discovered in time to move for a new trial

under R. 4:49; (c) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or other misconduct

of an adverse party; (d) the judgment or order is void; (e) the

Finally, this case does not present the extraordinary

circumstances required to implicate Rule 60(b)(6) which the

Court considers in exercising its inherent authority. Cf., Buck

v. Davis, 137 S. Ct. 759, 777–78 (U.S. 2017) (“Rule 60(b) vests

wide discretion in courts, but we have held that relief under

Rule 60(b)(6) is available only in ‘extraordinary

circumstances.’ In determining whether extraordinary

circumstances are present, a court may consider a wide range of

factors. These may include, in an appropriate case, the risk of

injustice to the parties and the risk of undermining the

public's confidence in the judicial process.” (citations and

quotations omitted)).

The Court will therefore decline to vacate the Opinion

dismissing Plaintiff’s claims against McInerney.

2. Realtor defendants’ motion for summary judgment

Plaintiff alleges that Defendants Thomas Sasaki and Eric

Sasaki, “as professionals licensed to sell real property in New

Jersey, completely and utterly miscalculated the value” and

“failed to properly market” the decedent’s two properties -

decedent’s home in Delanco, New Jersey and decedent’s law office

judgment or order has been satisfied, released or discharged, or

a prior judgment or order upon which it is based has been

reversed or otherwise vacated, or it is no longer equitable that

the judgment or order should have prospective application; or

(f) any other reason justifying relief from the operation of the

judgment or order.”).

in Burlington, New Jersey (“West Broad Street property”) - “in a

manner than would produce the highest and best price.” (Third

Amended Complaint, Docket No. 44 at 8-9.) Plaintiff claims that

“these defendants neglected to ensure that these properties were

maintained while under their care,” and the “estate suffered

financially for these acts of negligence.” (Id. at 9.)

Plaintiff also alleges “Re/Max is liable for this negligence of

Thomas and Eric Sasaki under principles of respondeat superior

and agency.” (Id.)

The claims against the Realtor defendants are couched

somewhat differently in Plaintiff’s opposition to the Realtor

defendants’ motion for summary judgment than they are in the

Third Amended Complaint.9 Plaintiff relates:

The allegations asserted here are basic, clear and rather

uncomplicated. The Sasaki defendants knew of germane and

relevant information that they neglected to disclose on

their listing, namely that the residential units couldn't

be rented because of zoning changes and even if they could

be, the property was in such poor shape that a Certificate

of Occupancy could not be obtained. This was revealed by

defendants on December 27, 2018 at their depositions. The

condition of the property was clearly misrepresented in the

listing.

9 “‘It is one thing to set forth theories in a brief; it is quite

another to make proper allegations in a complaint. . . . [I]t is

axiomatic that the complaint may not be amended by the briefs in

opposition to a motion [].’” Hughes v. United Parcel Service,

Inc., 639 F. App’x 99, 104 (3d Cir. 2016) (quoting Com. of Pa.

ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.

1988)).

(Docket No. 70 at 4.) Plaintiff further relates that he relied

upon the appraisal of the West Broad Street property prepared by

the Appraisal defendants that showed a net rental income in

excess of $2,000 per month. Plaintiff claims that the

representation that the West Broad Street property would provide

him with $2,000 per month is the basis for his damages against

the Realtor defendants because he relied upon that figure when

he settled his dispute with his siblings. (Id. at 5.)

The Realtor defendants argue that Plaintiff’s professional

negligence claims against them as “professionals licensed to

sell real property in New Jersey” fail because without

proffering an expert as to how they deviated from a real estate

agent’s duty of care, Plaintiff cannot prove they breached that

duty. Plaintiff argues that he does not need an expert to prove

his claims, because under the common knowledge exception, he can

testify as to defendants’ breach and how that breach caused his

damages.

The Realtor defendants are correct that Plaintiff’s theory

against them requires the testimony of an expert. In order to

maintain a negligence claim against a licensed professional, a

plaintiff is ordinarily required to provide an affidavit of

merit from an expert - an “appropriate licensed person” - at the

outset of the case to make a threshold showing that their claim

is meritorious. See N.J.S.A. 2A:53A-27 (“In any action for

damages for personal injuries, wrongful death or property damage

resulting from an alleged act of malpractice or negligence by a

licensed person in his [or her] profession or occupation, the

plaintiff shall, ... provide each defendant with an affidavit of

an appropriate licensed person that there exists a reasonable

probability that the care, skill or knowledge exercised or

exhibited in the treatment, practice or work that is the subject

of the complaint, fell outside acceptable professional or

occupational standards or treatment practices.”); Meehan v.

Antonellis, 141 A.3d 1162, 1169 (N.J. 2016) (“The submission of

an appropriate affidavit of merit is considered an element of

the [professional negligence] claim. Failure to submit an

appropriate affidavit ordinarily requires dismissal of the

complaint with prejudice.”).

Plaintiff’s claim that the listing should have included

more information, or any information at all, about potential

impediments to lease income is precisely the kind of information

that calls for an assessment of industry practice beyond the

“ordinary understanding and experience” of lay persons.

Accordingly, it falls outside of the category of obvious errors

the common knowledge exception was meant to address. See Cowley

v. Virtua Health System, 193 A.3d 330, 337 (N.J. Super. Ct. App.

Div. 2018) (“Common knowledge cases involve obvious or extreme

error.”); Bender v. Walgreen Eastern Co., Inc., 945 A.2d 120,

123 (N.J. Super. Ct. App. Div. 2008) (explaining that the common

knowledge doctrine has been used in circumstances involving

obvious errors: a dentist's extraction of the wrong tooth, the

erroneous hookup of equipment that resulted in the pumping of

gas, rather than the fluid that ought to have been used, into

the patient's uterus, and the use of caustic solution, rather

than the soothing medication intended, to treat a patient’s nose

after surgery).

Plaintiff’s failure to proffer an expert to testify to a

factfinder how the alleged failure to provide such information

in a real estate listing deviates from the applicable standard

of care is therefore fatal to his claim. Cowley, 193 A.3d at 336

(“Expert testimony about an alleged deviation from a reasonable

standard of care [and to establish breach of that standard] is

required whenever a licensed person exercised professional

responsibilities and judgment before acting or failing to

act[].”) (citation omitted); see also Katz v. N.T. Callaway Real

Estate Broker, LLC, 2016 WL 6677897, at *7 (N.J. Super. Ct. App.

Div. 2016) (not finding fault with the trial court’s dismissal

of the plaintiff’s negligence claim against a real estate broker

because she failed to obtain an expert opinion on the

responsibilities and functions of real estate brokers).

It is true that under the common knowledge exception, a

plaintiff is not required to provide an expert to support his

negligence claims. See Buttacavoli v. Universal Dentistry, PA,

2019 WL 2184960, at *4 (N.J. Super. Ct. App. Div. 2019)

(explaining that “the New Jersey Supreme Court has recognized an

exception to the affidavit requirement in professional

negligence cases in which it is not necessary for plaintiff to

present an expert to establish the standard of care or a

deviation from that standard: the common knowledge exception.

In common knowledge cases, the alleged negligence is unrelated

to technical matters peculiarly within the knowledge of

practitioners within the defendant's field. Common knowledge

cases are thus treated as ordinary negligence actions in which

the jury can supply the applicable standard of care from its

fund of common knowledge and assess the feasibility of possible

precautions which the defendant might have taken to avoid injury

to the plaintiff.” (citations omitted)). But even if the Court

assessed Plaintiff’s claims against the Realtor defendants under

the ordinary negligence standard, the Court finds that Plaintiff

has not met his burden to defeat summary judgment.10

10 Summary judgment is appropriate where the Court is

satisfied that the materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations, admissions, or

interrogatory answers, demonstrate that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).

“In New Jersey, as elsewhere, it is widely accepted that a

negligence cause of action requires the establishment of four

elements: (1) a duty of care, (2) a breach of that duty, (3)

actual and proximate causation, and (4) damages.” Jersey Cent.

Power & Light Co. v. Melcar Utility Co., 59 A.3d 561, 571 (N.J.

2013).

As set forth above, the nature of Plaintiff’s claims

against the Realtor defendants is unclear. In his complaint,

Plaintiff alleges that Thomas Sasaki and Eric Sasaki were

negligent in the real estate listings for the Delanco property

and the West Broad Street property because they did not maximize

the highest selling price, and that their negligent listing

resulted in financial injury to the estate.

As noted above, Plaintiff improperly changes the nature of

his claim against the Realtor defendants asserting that they

were negligent in their listing of the West Broad Street

property because they failed to disclose that the residential

units could not be rented because of zoning changes and were in

such poor condition that a Certificate of Occupancy could not be

obtained. Plaintiff does not make any argument as to the

Delanco property.

Thus, on the one hand, Plaintiff alleges that the Realtor

defendants created a listing that would not garner the highest

possible sale price for the two properties, but on the other

hand, Plaintiff claims that the Realtor defendants created a

listing for the West Broad Street property that did not include

specifics about the disrepair of the property, which would

logically lead to a lower sale price.

Plaintiff’s contradictory claims are further confused by

the alleged nature of Plaintiff’s damages. Plaintiff claims

that he relied upon the appraisal for $2,000 per month in rental

income from the West Broad Street property when he settled his

dispute with his siblings, but he offers no evidence as to how

such reliance affected those negotiations and if so in what

amount. Even if the Court were to allow Plaintiff to proceed on

this new theory, and even assuming the Realtor defendants owed a

duty of care to a beneficiary of the estate rather than to the

estate that hired them, a factfinder would have to speculate on

what damages, if any, Plaintiff suffered. An inability to prove

damages regarding the statements concerning the condition of the

West Broad Street property is fatal to his negligence claim

against the Realtor defendants.

The same holds true for Plaintiff’s claims against the

Realtor defendants for not crafting listings for the Delanco

property and the West Broad Street property to maximize their

sale price. Again, accepting that the Realtor defendants had a

duty of care to Plaintiff and they breached that duty, Plaintiff

has not provided any proof with regard to his damages that were

caused by these listings. Plaintiff’s negligence claim against

the Realtor defendants for their alleged failure to maximize the

sale price in the listings of the two properties is

unsustainable as well.

Consequently, the Realtor defendants are entitled to

judgment in their favor on Plaintiff’s negligence claims.11

3. Appraisal defendants’ motion for summary judgment

Plaintiff claims the following against the Appraisal

defendants:

The defendant Sasaki employed appraisers to appraise

the subject properties. Those appraisers were Martin T.

O'Hara the owner /operator of O'Hara Appraisals. Three

appraisals were done on the Delanco property. A date of

death value of $350,000, 00 and a tax appraisal of

$340,000.00 and a third appraisal of $225,000.00, which

listed work that needed to be done on the home. If such

work needed to be done on the home, that existed when the

first two appraisals were completed.

The appraisal of the Delanco property was done

negligently, unprofessionally and carelessly so that the

estate incurred needless carrying charges and fees.

Likewise the appraisal of the law office of the

decedent in the amount of $300,000.00 was so high that it

clearly discouraged any real offers on the property and the

11 Plaintiff asserts claims under respondeat superior and agency

against Re/Max World Class Realty for the actions of Thomas

Sasaki and Eric Sasaki. Re/Max argues that Plaintiff’s claims

against it must be dismissed because it had no involvement in

this matter. Thomas Sasaki and Eric Sasaki were employed by

Haines & Haines during these events, and Re/Max did not come

into existence until after the properties had been sold (the

Delanco property in 2012, and the West Broad Street property in

March 2015). Plaintiff did not file any response to Re/Max’s

argument. Summary judgment is warranted in favor of Re/Max on

this basis as well.

estate incurred carrying charges needlessly. The office was

sold by Jonathan Ehrlich for a small fraction of what it

was appraised for.

As proximate cause of the negligence of Martin O'Hara

and O'Hara Appraisals, Plaintiff suffered damages.

(Docket No. 44 at 9-10.)

The Appraisal defendants have moved for summary judgment on

the same basis as the Realtor defendants - that Plaintiff cannot

establish liability and damages against them for their alleged

professional negligence because he has not produced an expert to

support the elements of his claims.

The Court first notes that Plaintiff did not file an

opposition to the Appraisal defendants’ motion. In an unopposed

motion, a movant who files a proper Local Civil Rule 56.1

statement of undisputed material facts (“SUMF”) receives the

benefit of the assumption that such facts are admitted for

purposes of the summary judgment motion. Lacroce v. M. Fortuna

Roofing, Inc., 2017 WL 431768, at *3 (D.N.J. 2017) (citing L.

Civ. R. 56.1 (providing that “any material fact not disputed

shall be deemed undisputed for the purposes of the summary

judgment motion”)). Thus, “where a properly filed and supported

summary judgment motion is unopposed, it would be an exceptional

case where the court concludes that summary judgment should

nonetheless be denied or withheld, although the Court has

discretion to do so if unsatisfied that the law and facts point

to judgment as a matter of law.” Id.

The Appraisal defendants appropriately complied with Local

Civil Rule 56.1, and the Court finds that they are entitled to

summary judgment in their favor on Plaintiff’s claims against

them for the same reasons as the Realtor defendants. Not only

has Plaintiff failed to proffer expert testimony to show that

the Appraisal defendants breached the duty of care for licensed

professional real estate appraisers, Plaintiff has not provided

any proof as to how the Appraisal defendants caused Plaintiff

damages, even if the Court were to construe his claim to be for

ordinary negligence rather than malpractice.

Plaintiff claims in his complaint that the appraisals of

the two properties were done negligently resulting in the estate

incurring unnecessary carrying charges and fees. Assuming the

Appraisal defendants had a duty of care to Plaintiff - despite

the fact that McInerney hired Haines and Haines, who then hired

the Appraisal defendants - and the Appraisal defendants breached

that duty, Plaintiff has provided no evidence to support his

claim that he or the estate has suffered damages. Consequently,

the Appraisal defendants are entitled to summary judgment in

their favor on Plaintiff’s claims against them.

CONCLUSION

The Court will deny Plaintiff’s motion to vacate the

December 13, 2017 Opinion. The Court will grant the Realtor

defendants’ and the Appraisal defendants’ motions for summary

judgment. An appropriate Order will be entered.

Date: September 30, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.