Eric Gerstmann v. Executive House Condominium Association, Inc.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0860-22

ERIC GERSTMANN, JANINE

LUPPINO, and RONALD LUPPINO,

Plaintiffs-Appellants,

and

ALI VEDARARZ, SHIRIN VEDARARZ,

ROSALINDA PALAD, CYNTHIA

AGNESE, ROEL PEREZ, YURIDIA

PENA, CAROL VILLAVICENCIO, and

MONICA TOGARU,

Plaintiffs,

v.

EXECUTIVE HOUSE CONDOMINIUM

ASSOCIATION, INC., EXECUTIVE

HOUSE CONDOMINIUM BOARD OF

DIRECTORS, MARLENE

COSTAGLIOLA, JIM O'CONNOR,

IRA GOODMAN, KAREN ANDERSON,

NANCY WYMER, ALTICE USA,

d/b/a CABLEVISION SYSTEMS

CORPORATION, and OPTIMUM,

Defendants-Respondents.

___________________________________

Submitted January 10, 2024 – Decided January 17, 2025

Before Judges Gummer and Walcott-Henderson.

On appeal from the Superior Court of New Jersey,

Chancery Division, Bergen County, Docket No.

C-000003-22.

Jared M. Lans & Associates, attorneys for appellants

(Jared M. Lans and Nicholas G. Gallinger, on the

briefs).

Kirmser, Lamastra, Cunningham & Skinner, attorneys

for respondents Executive House Condominium

Association, Inc., Executive House Condominium

Board of Directors, Marlene Costagliola, Jim

O'Connor, Ira Goodman, Karen Anderson and Nancy

Wymer (Timothy P. Malacrida, of counsel and on the

brief).

Lester Schwab Katz & Dwyer, LLP, attorneys for

respondent Altice USA d/b/a Cablevision Systems

Corporation and Optimum (Alfredo Javier Alvarado, on

the brief).

The opinion of the court was delivered by

GUMMER, J.A.D.

In this condominium-association dispute, plaintiffs Eric Gerstmann,

Janine Luppino, and Ronald Luppino challenged the authority of the

condominium's association and board of directors to enter into bulk-billing

agreements with a cable-television provider. They appeal from two summary-

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judgment orders entered in defendants' favor. Having conducted a de novo

review, we affirm.

I.

We draw these facts from the summary-judgment record, "view[ing] the

evidence in the light most favorable to [plaintiffs,] the non-moving part[ies]."

Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257 N.J. 33, 71 (2024)

(first alteration in original) (quoting Qian v. Toll Bros., Inc., 223 N.J. 124, 134-

35 (2015)).

The Executive House Condominium is a multi-unit building located at 301

Beech Street in Hackensack. It consists of 127 residential units and four

commercial units. The Executive House Condominium Association, Inc.

(Association) is governed by its Board of Directors. Defendants Marlene

Costagliola, James O'Connor, Ira Goodman, Nancy Wymer, and Karen

Anderson became Board members in 2007, 2015, 2011, 2017, and 2016,

respectively, and were Board members when plaintiffs filed this lawsuit. We

refer to the Association, the Board, and the Board members collectively as the

Executive House defendants.

Under the Association's Articles of Incorporation, the Association is

permitted to exercise powers and perform duties as set forth under the

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3

condominium Master Deed and the Association's By-Laws (collectively the

Governing Documents) and granted by statute. According to the By-Laws, the

Association was "formed to serve as means through which the condominium

unit owners . . . may take action with regard to the administration, management,

repair and operation of the Property, in accordance with the provision s of a

master deed . . . ."

Article IV, Section 2 of the By-Laws outlines the Board's powers and

duties and states:

The Board . . . shall have the powers and duties

necessary for the administration of the affairs of the

Association and may do all such acts and things, except

as by law or by the Master Deed or by these By-Laws,

may not be delegated to the Board . . . by Unit Owners.

Such powers and duties of the Board . . . shall include

but shall not be limited to the following:

(a) The operation, care, upkeep, repair and

replacement of the Common Elements and services and

personal property of the Association, if any, together

with the right to use all funds collected by the

Association to effectuate the foregoing.

(b) Determination of the Common Expenses

required for the affairs and duties of the Association

....

The Board . . . shall, prior to the beginning of

each fiscal year of the Association, prepare a budget

which shall determine the amount of common charges

payable by each Unit to meet the Common Expenses of

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the Association . . . . The Board . . . shall allocate and

assess such charges among the Unit Owners according

to and in the percentage of their respective ownership

of Common Elements as set forth in the Master Deed.

Unit Owner shall be advised of the amount of the

Common Expenses payable by each of them and these

charges shall be paid to the Association in twelve (12)

equal monthly installments on the 1st day of each

month of the fiscal year in advance at the office of the

Association. A statement of the aforesaid yearly

charges shall be mailed to each Unit Owner at the

commencement of each fiscal year and no further

billing by the Association shall be required.

....

(c) Collection of the Common Expenses and

assessments from the Unit Owners together with any

costs and expenses of collection thereof.

....

(s) To have and to exercise any and all powers,

rights and privileges which a corporation organized

under the nonprofit Corporation Law of the State of

New Jersey by law may now or hereafter have or

exercise.

Paragraph (b) of Section 2 includes the following limitation of the Board's

authority:

Anything in these By-Laws or elsewhere to the

contrary notwithstanding, the Board . . . shall not have

the authority, except in the case of an extreme

emergency, without the consent of the Unit Owners

holding majority of the shares in the Common Elements

to expend in excess of $5,000, on any item of expense

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5

in any year in which it is not specified or if specified,

over the amount indicated for such item in the aforesaid

budget for such year.

Under the Master Deed, the Association is "comprised exclusively of Unit

Owners to effect the management, maintenance, repair and replacement of the

Property pursuant to the [New Jersey Condominium] Act [(N.J.S.A. 46:8B-1 to

-38) (the Act)], this Master Deed and the 'By-Laws.'" Paragraph 27 of the

Master Deed, which is entitled "Ratification, Confirmation and Approval of

Agreements," provides, among other things, that:

The purchase of a Unit, and the acceptance of a deed

therefor by any party shall constitute the ratification,

confirmation and approval by such purchaser, his heir,

legal representative, successors and assigns of the

propriety and legality of said agreement or said

agreements, or any other agreements authorized and

permitted by the Act, this Master Deed and the By-

Laws.

The Master Deed defines "Common Elements" as "all parts of the Property

other than the Units, including the items set forth in the Condominium Act,

excluding the Unit or Units for janitor and/or superintendent." Pursuant to the

Master Deed, each unit owner is required to pay "Common Expenses," meaning

the owner's "proportionate share of all the expenses of maintenance, repair,

replacement, administration and operation of the Common Elements." A unit

owner's "proportionate share" of the Common Expenses is "the same as the

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proportionate, undivided interest of the Unit Owner in the Common Elements as

set forth in" the Master Deed. Regarding utilities, paragraph 15 of the Master

Deed provides: "Each Unit Owner shall pay for his own telephone and cable

television and other utilities which are separately metered or billed to each user

by the respective utility company. Utilities which are not separately metered or

billed shall be treated as part of the Common Expense charges."

On February 27, 2008, the Association held an open session. The minutes

of that meeting contained the following entry:

Bulk Cable TV

A survey was delivered to every unit requesting interest

in adding a service provider for Cable TV.

Management stated the survey had a positive response

and a representative will be in the lobby on Tuesday,

March 4, 2008 to answer any questions concerning the

Cable. Once a final tally is established the Building

will make a decision. Two options were discussed.

Several residents asked questions about Triple play.

Minutes from the April 23, 2008 open session stated the Board had "decided to

proceed with the Bulk Cable TV."

On May 22, 2008, defendant Costagliola, who was then the president of

the Board, signed an "Access Agreement" (Agreement) with a "Bulk Billing

Rider" (Rider) with Cablevision of Oakland, LLC (the Company). Under the

Agreement, the Company agreed to "provide broadband communications

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services . . . to the Premises by placing, maintaining, affixing, and attaching

cables, wires, equipment, molding and appurtenant devices . . . ."

Under the Rider, the Company agreed "to provide the cable television

services at the level currently known as iO Family, including one (1) box and

converter and remote, to one (1) outlet, in each unit at the Premises." In return,

the Association agreed to pay the Company "a monthly fee" of a certain amount

"per residential unit . . . based on distribution of cable television services,

including one (1) box and converter and remote to one (1) outlet in each of [the]

. . . units." The Association agreed it would "not separately bill any occupant

for the cable television services at the iO Family level, but [would] provide such

cable television services as part of the . . . common charges or rent." "Individual

occupants" could "obtain additional outlets or subscribe to certain additional

programming or services offered by" the Company. Those "additional purchases

[would] be billed by [the Company] directly to the occupant . . . ."

Pursuant to the Rider, the bulk-billing arrangement had an initial term of

five years, which began on June 1, 2008. The Company and the Association

renewed the Rider on April 3, 2012, for three additional years; on March 31,

2015, for five additional years; and on February 26, 2020, for five additional

years. Under the 2020 Rider, the Association was liable for 100% of the monthly

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fee multiplied by the number of months left on the five-year extension in the

event of an early termination of the Rider for any reason other than the

Company's breach. The substantive provisions of the 2020 Rider for the most

part tracked the provisions in previous Riders. Over time, the monthly fee has

increased, and the specific cable packages provided have changed.

According to the Executive House defendants, twenty-five units in 2008

"had either basic cable at a rate below the bulk billing rate or no cable at all.

Those units were not forced to get cable and were allowed to be exempt from

the charge. As those units were transferred, they became subject to the bulk

billing arrangement." The Executive House defendants assert unit purchasers

"are advised before closing of the mandatory cable charge."

According to a "May 1, 2020 - April 30, 2021 Approved Budget," the

Association included $75,866 for "Cable Service" in the 2020 to 2021 budget.

According to a "May 1, 2021 - April 30, 2021 Approved Budget," the

Association included $78,760 for "Cable Service" in the 2021 to 2022 budget.

According to the Executive House defendants, the Association "has not spent

more than $5,000 in unbudgeted funds on the Cable charge . . . ."

The Luppinos purchased Unit 12E in the Executive House Condominium

in 2016. Gerstmann purchased Unit 9G in 2021. Plaintiffs and the Executive

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House defendants disagree about whether plaintiffs were advised before they

purchased their units that unit owners were required to pay cable fees.

On January 3, 2022, Gerstmann and the Luppinos filed a verified

complaint against "Altice USA d/b/a Cablevision Systems Corporation and

Optimum" (Cablevision) and the Executive House defendants. Plaintiffs

asserted the Board had entered into the Agreement and Rider "without proper

authority" and sought a judgment declaring them "null and void," enjoining the

Association and Board from invoicing plaintiffs for the Cablevision service

charges, declaring those charges void, and requiring the Association and Board

to remove those charges from plaintiffs' accounts and refund plaintiffs the

Cablevision service charges they already had paid, if any. Plaintiffs also

claimed the Board and its members had breached their fiduciary duties to

plaintiffs by "violating the Association's Governing Documents, and New Jersey

law." In the complaint, plaintiffs stated "Cablevision is a party [d]efendant by

virtue of being a stakeholder as a party to the Agreement and a provider of cable

television services to Unit Owners." They also acknowledged that "[t]he subject

matter of the services provided pursuant to the Agreement are not Common

Elements as defined in the Governing Documents."

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Plaintiffs subsequently filed an amended complaint, naming eight

additional unit owners as plaintiffs. None of those additional plaintiffs

submitted a certification in opposition to defendants' summary-judgment

motions, and none joined in this appeal.

In a March 14, 2022 case management order, the court ordered the parties

to complete written discovery by June 1, 2022, depositions of parties and fact

witnesses by September 3, 2022, and depositions of all expert witnesses by

November 5, 2022, which was the discovery end date. The court later moved

the deadline to complete written discovery to June 15, 2022. Cablevision

provided responses to plaintiff's written discovery requests on June 24, 2022;

the Executive House defendants provided plaintiffs with their responses on June

27, 2022. During a June 27, 2022 case management conference, the court gave

plaintiffs additional to time to serve their discovery-request responses.

On July 29, 2022, the Executive House defendants moved for summary

judgment. On August 12, 2022, Cablevision moved for summary judgment,

arguing no party had asserted a cognizable claim against it. On August 24, 2022,

plaintiffs moved for an order compelling defendants to provide more specific

answers to their interrogatories and requests for production of documents.

Plaintiffs' counsel had sent letters to counsel for the Executive House defendants

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and Cablevision's counsel on July 25, 2022, and August 1, 2022, respectively,

seeking supplemental discovery responses.1 During an August 2, 2022 case

management conference, the only outstanding discovery issue raised by

plaintiffs' counsel was his access to discovery exchanged between defendants.

He nevertheless asserted in certifications he submitted later that month in

opposition to defendants' summary-judgment motions that "there remains

significant outstanding discovery in this matter . . . ." Weeks after the August

2, 2022 conference and after defendants had moved for summary judgment,

plaintiffs issued deposition notices, scheduling the depositions after the court-

imposed deadline of September 3, 2022.

The court heard argument and on October 6, 2022, issued a verbal decision

and written orders granting defendants' motions and dismissing the claims

against the Executive House defendants with prejudice and the complaint as to

Cablevision without prejudice. The court rejected plaintiffs' argument that the

motions were premature, finding additional discovery would not enable a

1

In those letters, plaintiffs' counsel requested documents regarding an

"accounting and analysis" of the "cost savings" obtained through the bulk-billing

agreements, any communications between the Association and unit owners

regarding the Agreement, the "Cable TV Survey" results, vote tallies of the

Association’s approval of the Agreement, any communications between

Cablevision and unit owners, and information on other buildings with bulk-

billing agreements with Cablevision.

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factfinder to resolve the dispute in plaintiffs' favor. The court granted

Cablevision's motion, finding there was "no cognizable cause of action" against

it and that no cause of action against Cablevision had been "pled or expressed ."

The court granted the Executive House defendants' motion, rejecting plaintiffs'

lack-of-authority arguments and finding that pursuant to paragraph 27 of the

Master Deed, plaintiffs' purchase of their units constituted their ratification of

the bulk-billing agreements. As for plaintiffs' breach-of-fiduciary-duty claim,

the court held it "ha[d] seen nothing in this case . . . to warrant trying the issue

as to whether this somehow is fraudulent, self-dealing, or unconscionable."

Having granted defendants' summary-judgment motions, the court denied

plaintiff's discovery motion in an order from which plaintiffs did not appeal.

Plaintiffs Eric Gerstmann, Janine Luppino, and Ronald Luppino appeal

from the summary-judgment orders. They argue material factual disputes exist,

summary judgment was premature, Cablevision is an indispensable party against

whom plaintiffs asserted a cognizable claim, the Executive House defendants

lacked authority to enter into the bulk-billing agreements pursuant to the

Governing Documents and statute, and the Board and its members breached their

fiduciary duties to plaintiffs. Having conducted our own review of the

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summary-judgment motions, we are unpersuaded by those arguments and

affirm.

II.

We review a grant of summary judgment de novo, using the same standard

that governed the trial court's decision. Samolyk v. Berthe, 251 N.J. 73, 78

(2022). Under that standard, summary judgment will be granted when "the

competent evidential materials submitted by the parties," viewed in the light

most favorable to the non-moving party, show that there are no "genuine issues

of material fact and . . . the moving party is entitled to summary judgment as a

matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 23-24 (2017)

(quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). "An issue of fact is genuine

only if, considering the burden of persuasion at trial, the evidence submitted by

the parties on the motion, together with all legitimate inferences therefrom

favoring the non-moving party, would require submission of the issue to the trier

of fact." R. 4:46-2(c); see also Grande, 230 N.J. at 24. "We accord no special

deference to the trial court's legal conclusions." Birmingham v. Travelers N.J.

Ins. Co., 475 N.J. Super. 246, 255, (App. Div. 2023).

Like the trial court, we perceive no genuine issues of material fact that

would call for the denial of defendants' motions and conclude the Executive

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House defendants were authorized to enter into the bulk-billing arrangements at

issue in this case. "Under the Condominium Act, the association 'shall be

responsible for the administration and management of the condominium . . .

including but not limited to the conduct of all activities of common interest to

the unit owners.'" Port Liberte Homeowners Ass’n, Inc. v. Sordoni Constr. Co.,

393 N.J. Super. 492, 503 (App. Div. 2007) (quoting N.J.S.A. 46:8B-12); see also

Siller v. Hartz Mountain Assocs., 93 N.J. 370, 375 (1983) ("The Act . . . provides

that the condominium will be administered and managed by [its] association").

"Whether or not incorporated, the association shall be an entity which shall act

through its officers and may enter into contracts, bring suit and be sued." Port

Liberte, 393 N.J. Super. at 503 (quoting N.J.S.A. 46:8B-15(a)).

Under Article IV, Section 2 of the By-Laws, the Association's Board was

given "the powers and duties necessary for the administration of the affairs of

the Association and may do all such acts and things, except as by law or by the

Master Deed or by these By-Laws, may not be delegated to the Board . . . by

Unit Owners." (Emphasis added). We see nothing in the Governing Documents

or the Act that prevents the Executive House defendants from entering into the

Cablevision agreements.

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Article IV, Section 2, paragraph (b) of the By-Laws requires the Board to

"allocate and assess [Common Expenses] among the Unit Owners according to

and in the percentage of their respective ownership of Common Elements." The

Master Deed defines Common Expenses as "expenses of maintenance, repair,

replacement, administration and operation of the Common Elements." As

plaintiffs acknowledged in their pleadings, "[t]he subject matter of the services

provided pursuant to the Agreement are not Common Elements as defined in the

Governing Documents." We agree. Thus, the Board was not required to allocate

the cost of the cable-television services based on the unit owner's percentage of

ownership and was not prevented from entering into an agreement with charges

incurred on a per-unit basis. And that's what happens under the agreements at

issue. Cablevision bills for its services a monthly fee calculated "per residential

unit." That arrangement is consistent with the utilities provision set forth in

paragraph 15 of the Master Deed.

Pursuant to paragraph (b) of Section 2 of Article IV of the By-Laws, the

Board cannot "except in the case of an extreme emergency, without the consent

of the [majority of] Unit Owners . . . expend in excess of $5,000, on any item of

expense in any year in which it is not specified or if specified, over the amount

indicated for such item in the aforesaid budget for such year." Nothing in the

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record indicates the Board violated that provision. In discovery, the Executive

House defendants produced budgets issued during the term of the latest renewal

period; they contained specific entries for cable expenses. And in interrogatory

responses, defendants advised the Association "has not spent more than $5,000

in unbudgeted funds on the Cable charge . . . ." Plaintiffs have not demonstrated

the existence of a genuine issue of material fact as to defendants' compliance

with that provision of the By-Laws.

Paragraph 27 of the Master Deed provides that plaintiffs' purchase of their

units and acceptance of their deeds "constitute[d] the ratification, confirmation

and approval by [them] . . . of the propriety and legality of . . . any other

agreements authorized and permitted by the Act, this Master Deed and the By -

Laws." When plaintiffs purchased their units, in 2016 and 2021 respectively,

the Association already had entered into the Agreement and the Rider. Thus,

pursuant to paragraph 27, plaintiffs' purchase of their units constituted their

approval of the propriety and legality of those agreements. Plaintiffs contend

the Executive House defendants acted in a discriminatory manner in not

applying the cable charges to every unit owner. But the only unit owners who

are not required to pay the cable charges had purchased their units before the

Association entered into the Agreement and Rider. Consequently, the

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ratification provision set forth in paragraph 27 does not apply to those unit

owners.

Plaintiffs fault the Executive House defendants for purportedly not

complying with Article V, Section 9 of the By-Laws, which provides: "All

agreements, contracts, deeds, leases, checks and other instruments of the

Association shall be executed by any two officers of the Association or by such

other person or persons as may be designated by the Board of Directors." Only

defendant Costagliola, as Board president, signed the Agreement and Rider and

subsequent extensions. The Executive House defendants assert she could be the

sole signatory as a "person . . . designated by the Board." Whether she was a

"person . . . designated by the Board" or whether another board member should

have signed the agreements is of no import. It is undisputed the Board had

decided to enter into those agreements.

Plaintiffs contend the Executive House defendants violated N.J.S.A.

46:8B-15(d) by entering into the Agreement and Rider. That statutory provision

describes the procedure a condominium association must follow when

"acquir[ing] or enter[ing] into agreements whereby it acquires leaseholds,

memberships or other possessory or use interests in lands or facilities including,

but not limited to country clubs, golf courses, marinas and other recreational

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facilities." N.J.S.A. 46:8B-15(d). Under its plain terms, that statute does not

apply to the agreements at issue in this case. Rivera v. Union Cnty. Prosecutor's

Off., 250 N.J. 124, 141 (2022) (finding that when interpreting a statute, courts

look to its actual language and give words their generally accepted meaning ).

"[T]o establish a claim for breach of fiduciary duty, a plaintiff must show:

(1) the defendant had a duty to the plaintiff; (2) the duty was breached; (3) injury

to the plaintiff occurred as a result of the breach; and (4) the defendant caused

that injury." Namerow v. PediatriCare Assocs., LLC, 461 N.J. Super. 133, 146

(Ch. Div. 2018); see also F.G. v. MacDonell, 150 N.J. 550, 563-64 (1997).

Plaintiffs based their breach-of-fiduciary-duty cause of action on their claim the

Board and its members had violated the Governing Documents and New Jersey

law by entering into the Agreement and Rider. Having agreed with the trial

court that defendants did not violate the Governing Documents or applicable

law, we also agree that defendants were entitled to summary judgment on

plaintiffs' breach-of-fiduciary-duty cause of action.

Plaintiffs assert the court acted prematurely in granting defendants'

motions, contending discovery was not complete. A summary-judgment motion

"is not premature merely because discovery has not been completed . . . ."

Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015). "Purely legal

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questions, such as the interpretation of . . . contracts, are questions of law

particularly suited for summary judgment." Ibid.; see also United Sav. Bank v.

N.J. Dep't of Env't Prot., 360 N.J. Super. 520, 525 (App. Div. 2003) ("if the

summary judgment turns on a question of law, or if further factual development

is unnecessary in light of the issues presented, then summary judgment need not

be delayed").

To defeat a summary-judgment motion based on a claim of outstanding

discovery, a plaintiff must be "able to 'demonstrate with some degree of

particularity the likelihood that further discovery will supply the missing

elements of the cause of action.'" Badiali, 220 N.J. at 555 (quoting Wellington

v. Est. of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003)) (internal

quotation marks omitted); see also Minoia v. Kushner, 365 N.J. Super. 304, 307

(App. Div. 2004) ("While we are aware that ordinarily decision on a summary

judgment should be withheld until completion of discovery, nevertheless,

discovery need not be undertaken or completed if it will patently not change the

outcome."). In a case that turns largely on the interpretation of the Governing

Documents, plaintiffs have failed to meet that standard and have failed to

demonstrate the discovery they suggest would supply any missing elements of

their cause of action or alter the outcome.

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Plaintiffs include in their merits brief an argument based on the Cable

Television Act, N.J.S.A. 48:5A-1 to -64. Plaintiffs did not cite or rely on that

statute in their pleadings, and their counsel did not make any argument based on

it during oral argument before the trial court. Because that issue was not

"properly presented to the trial court," we decline to consider it. J.K. v. N.J.

State Parole Bd., 247 N.J. 120, 138 n.6 (2021) (quoting State v. Robinson, 200

N.J. 1, 20 (2009)); see also Alloco v. Ocean Beach & Bay Club, 456 N.J. Super.

124, 145 (App. Div. 2018) (applying "well-settled" principle that appellate court

will not consider an issue that was not raised before the trial court).

In granting Cablevision's motion, the trial court correctly concluded

plaintiffs had not pleaded a cause of action against Cablevision. As plaintiffs

stated in their pleadings, "Cablevision is a party [d]efendant by virtue of being

a stakeholder as a party to the Agreement and a provider of cable television

services to Unit Owners." Plaintiffs do not allege Cablevision engaged in any

wrongdoing. They do not claim Cablevision breached any contracts with or

duties owed to them or in any way caused the alleged breaches and violations of

the Executive House defendants. They do not seek any damages from

Cablevision. "A pleading should be dismissed if it states no basis for relief and

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discovery would not provide one." Rezem Fam. Assocs., LP v. Borough of

Millstone, 423 N.J. Super. 103, 113 (App. Div. 2011).

Instead, plaintiffs argue Cablevision should remain in the case as an

indispensable party. "Whether a party is indispensable is fact sensitive." Int'l

Brotherhood of Elec. Workers Local 400 v. Borough of Tinton Falls, 468 N.J.

Super. 214, 225 (App. Div. 2021). "[A] party is not truly indispensable unless

he has an interest inevitably involved in the subject matter before the court and

a judgment cannot justly be made between the litigants without either adjudging

or necessarily affecting the absentee's interests." Ibid. (quoting Toll Bros., Inc.

v. Twp. of W. Windsor, 334 N.J. Super. 77, 90-91 (App. Div. 2000)).

"[A]bsence of an indispensable party does not deprive the court of

jurisdiction to adjudicate the issues among the parties who were joined." Toll

Bros., 334 N.J. Super. at 91. And this court will not remand a case based on the

absence of an indispensable party when doing so would be "fruitless." Int'l

Brotherhood, 468 N.J. Super. at 226. The trial court found a claim by

Cablevision "would only arise if [the] Executive House [defendants] were to

lose" and granted Cablevision's motion when it granted the Executive House

defendants' motion. Under those circumstances, we perceive no error in the

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court's decision to grant Cablevision's motion and, accordingly, affirm the

court's order.

Affirmed.

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