WILLIAM P. ST. CLAIR, et al. v. SANDRA ENGLISH, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0273-05T10273-05T1

WILLIAM P. ST. CLAIR,

Executor of the Estate of

Michael Mezzaroba, RITA MEZZAROBA,

3426 ATLANTIC AVENUE CORP., and

5700 ATLANTIC AVENUE CORP.,

Plaintiffs-Respondents,

v.

SANDRA ENGLISH t/a

ATLANTIS BAR AND GRILL,

a/k/a CLUB POLO,

Defendant-Appellant.

__________________________________

WILLIAM P. ST. CLAIR,

Executor of the Estate of

Michael Mezzaroba, RITA MEZZAROBA,

3426 ATLANTIC AVENUE CORP., and

5700 ATLANTIC AVENUE CORP.,

Plaintiffs-Respondents,

v.

GEORGE ROST and BRIAN ROST,

Defendants-Appellants,

and

ALBERT FOSCHINI and RONALD FANTE,

Defendants.

__________________________________________________________

 

Submitted November 14, 2006 - Decided December 13, 2006

Before Judges Coburn, R.B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Camden County, L-2823-02 and L-2175-04.

John D. Wilson, attorney for appellants.

Michael A. Ruggieri, attorney for respondents.

PER CURIAM

This appeal concerns actions for breach of a written commercial lease relating to the operation of a restaurant-bar. Initially, plaintiffs sued defendant Sandra English. In a later separate action they sued defendants Albert Foschini, Ronald Fante, George Rost, and Brian Rost. The second action arose when, during discovery in the first action, plaintiffs learned that English claimed that her signature on the lease had been forged by her brother, defendant Albert Foschini, and that he, Fante, and the two Rosts were occupying and conducting their business on the leased premises. Although plaintiffs' first motion to consolidate the actions was denied, consolidation was granted on their motion for reconsideration. The case was tried to a jury, and plaintiffs obtained a verdict against all defendants for $25,432.05 in unpaid rent and $80,898.30 for unpaid bills. Defendant's post-verdict motions for a new trial or a reduction of the damage award were denied, and this appeal ensued.

After carefully considering the record and briefs, we are satisfied that all of the defendants' arguments are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E). Nonetheless, we will comment briefly as follows.

Defendants' first point argues that consolidation was improperly granted. Defendants' reliance on Rule 4:49-2, in relation to the timing of plaintiffs' motion for reconsideration of the denial of consolidation, is misplaced. That rule only applies to final orders or judgments. Rather, the correct reference is Rule 4:42-2, which allows revision of interlocutory orders at any time before final judgment. Moreover, defendants have not indicated any manner in which they might have been prejudiced by the consolidation.

Defendants' second point argues that the lease was rendered void because there was no proof that they had provided plaintiffs with the liability insurance they were obligated to obtain. But the defendants treated the lease as if it was in effect and they are now estopped from claiming that it was not. Gregory Park Coop. Corp. v. Crown Parking Corp., 286 N.J. Super. 190, 196 (App. Div. 1995).

Defendants' third point argues that plaintiffs failed to take the steps necessary to qualify the tenant to operate the bar-restaurant during the term of the lease by failing to transfer ownership of the liquor license. As plaintiffs point out, the claim that the lease violated public policy is an affirmative defense that was not raised by defendants. Therefore, it was waived. Pressler, Current N.J. Court Rules, comment 31.1 to R. 4:5-4; comment 2 to R. 4:6-7 (2007). Moreover, a party's conduct can estop him or her from relying on an affirmative defense. Brown v. Brown, 208 N.J. Super. 372, 384 (App. Div. 1986). Since the defendants used the liquor license to their profit and treated the lease as valid, they cannot assert this defense now.

Defendants' fourth point argues that the verdict was against the weight of the evidence. On this point, we affirm substantially for the reasons stated by the trial judge.

In light of our disposition of the defendants' arguments, we need not address plaintiffs' argument that the appeal was untimely. However, we will note that the notice of appeal was filed within the extended time allowed by Rule 2:4-4(a), and that there appears to be both good cause and an absence of prejudice to plaintiffs.

 
Affirmed.

Only defendants Sandra English, George Rost and Brian Rost are appealing.

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A-0273-05T1

December 13, 2006