BROCK FARMS, INC. v. ANTHONY MARRAZZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2887-08T12887-08T1

BROCK FARMS, INC.,

Plaintiff-Respondent,

v.

ANTHONY MARRAZZO t/a

A. MARRAZZO LANDSCAPING CO.,

Defendant-Appellant.

_________________________________

 

Submitted: January 4, 2010 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2228-08.

Kamensky Cohen & Associates, attorneys for appellant (Philip Cohen and Kristin Teufel, on the brief).

Mehr, LaFrance & Williams, attorneys for respondent (Mark Williams, on the brief).

PER CURIAM

In this collection action, defendant appeals from an order for summary judgment in plaintiff's favor in the amount of $73,70l, and denial of his motion for reconsideration. We affirm.

In May of 2008, plaintiff Brock Farms, Inc. filed suit against defendant, Anthony Marrazzo t/a A. Marrazzo Landscaping Co., on a book account for trees and landscaping material sold and delivered in 2005 and 2006. An answer was filed on behalf of "[d]efendants, Anthony Marrazzo and Marrazzo Landscaping Co." Plaintiff then filed a motion for summary judgment, supported by a certification of its president, Edward Brock, which stated, in part, that "[f]or a number of years, Anthony Marrazzo of A. Marrazzo Landscaping purchased thousands of dollars of trees, and other landscape material at wholesale on credit" and attached invoices addressed to "A. Marrazzo Landscaping" or "A. Marrazzo Landscaping, Attn: Anthony Marrazzo."

The sole document presented in opposition was a "Response to Plaintiff's Motion for Summary Judgment" in which the attorney responded to plaintiff's statement of material facts, which, among other things, "admitted that A. Marrazzo [L]andscaping, purchased the alleged materials from [plaintiff]" and denied "that Anthony Marrazzo, individually had purchased the alleged materials"; and admitted "that A. Marrazzo Landscaping Co. obtained the materials on credit" and denied "that Anthony Marrazzo individually had purchased the alleged materials on credit." The opposition failed to allege or present any evidence that defendant company was a corporation and of the individual's relationship to the business and his dealings with plaintiff. Following oral argument, which transcript was not provided by appellant, the court granted summary judgment to plaintiff and against "Defendant, Anthony Marrazzo t/a A. Marrazzo Landscaping Co." by order of December l9, 2008.

Defendant filed a motion for reconsideration, which was supported solely by a certification of counsel stating, in pertinent part:

3. It is the contention of the Defendant that the Court erred when determining that Plaintiff was entitled to Summary Judgment against the stated Defendant Anthony Marrazzo t/a A. Marrazzo Landscaping Co. as Anthony Marrazzo is an individual, employed by A. Marrazzo Landscaping. (See Exhibit B)

4. At all times during the alleged relationship between Defendant A. Marrazzo Landscaping, Inc. and Plaintiff Brock Farms, Inc. any and all paperwork was signed by Anthony Marrazzo as an employee of A. Marrazzo Landscaping, Inc.

5. The Plaintiff has improperly ple[]d Anthony Marrazzo as a Defendant in this matter synonymous with A. Marrazzo Landscaping.

6. The Order of Summary Judgment granted against Defendant Anthony Marrazzo t/a A. Marrazzo Landscaping does a great injustice to Anthony Marrazzo, an individual, who cannot be held personally liable for the corporation's alleged wrongdoing.

7. It is respectfully requested that this Court reverse its previous Order of December l9, 2008 wherein the Plaintiff Brock Farms, Inc., was granted Summary Judgment.

Defendant presented no certification from Marrazzo or evidence that defendant company was a corporation.

At oral argument on February 6, 2009, defendant's attorney conceded that the company was indebted to plaintiff but disputed that Anthony Marrazzo should be held personally accountable, contending that "further discovery is needed to assess whether he should be in fact held personally liable." In denying reconsideration, Judge Cleary commented as to defendant's "bare allegation" that the company was a corporation, failure to present a certificate of incorporation in response to the summary judgment or on the reconsideration motion, and sole reliance at reconsideration on "a self-serving certification by counsel" that provided no new information. This appeal ensued.

On appeal, defendant challenges the grant of summary judgment, arguing no proof was submitted by plaintiff that justifies holding Anthony Marrazzo individually liable for the corporate debt, and the denial of reconsideration, arguing the court overlooked the fact that Anthony Marrazzo was separate and distinct from the corporate landscaping entity. Defendant also asserts, for the first time, that plaintiff was made aware that Anthony Marrazzo was acting as an agent on behalf of the corporate entity and there was no basis in law or equity to hold him individually responsible for the debt. We are not persuaded by defendant's arguments.

Suit was filed against a single defendant, a business entity known as "Anthony Marrazzo t/a A. Marrazzo Landscaping Co." based on statements of account issued to "A. Marrazzo Landscaping" and "A. Marrazzo Landscaping, Attn: Anthony Marrazzo." In support of its summary judgment motion, plaintiff's principal certified about an ongoing relationship in which "Anthony Marrazzo of A. Marrazo Landscaping" purchased the trees and other landscaping material on credit and as to the outstanding balance. Thus, plaintiff presented a sufficient basis for a judgment in its collection action against the named defendant as a matter of law. R. 4:46-2(a).

An answer was filed by "Defendants, Anthony Marrazzo and Marrazzo Landscaping Co." that asserted a general denial and affirmative defenses, none of which informed that the landscaping entity was a corporation. In its opposition to the summary judgment motion, the onus was on defendant to "respond by affidavits . . . setting forth specific facts showing that there is a genuine issue for trial." R. 4:46-5(a). Defendant's submission was woefully inadequate. Ibid.; R. 4:46-2(b), (c). In his responding statement, defendant's counsel acknowledges liability of the business entity that he interchangeably refers to as "A. Marrazzo [L]andscaping," "A. Marrazzo Landscaping Co." and "A. Marrazzo Landscape" and in general terms disclaims liability as to the individual. Defendant's attorney never states that the business is a corporate entity and provides no evidence to that effect, such as a certificate of incorporation or a copy of the cancelled check for the $35,000 payment on account made on or after April l3, 2007, referenced in Brock's certification, that presumably was drawn on the corporate account. Nor is there any certification by Anthony Marrazzo attesting to the corporate status of the business and his relationship to the landscape business and to plaintiff, which would provide a debatable defense. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Accordingly, summary judgment was properly granted in plaintiff's favor.

Furthermore, as noted by Judge Cleary, the only submission presented on defendant's motion for reconsideration was a certification by counsel that, for the first time, identified the landscape business as a corporation and asserted the defense that the individual was "improperly ple[]d as a Defendant in this matter synonymous with A. Marrazzo Landscaping" and that the individual was acting solely as its "employee" in his dealings with plaintiff. These unsubstantiated allegations in what the court properly characterized as a "self-serving certification by counsel" would have been insufficient to defeat plaintiff's summary judgment motion, let alone provide grounds for relief from the summary judgment order. R. 4:50-1.

Defendant's brief on appeal continues to assert unsubstantiated statements such as "[t]hroughout litigation, it has been undisputed that A. Marrazzo Landscaping Co. is a corporation," "Anthony Marrazzo fully disclosed he was acting on behalf of A. Marrazzo Landscaping Co." and "Brock Farms[] knew that Anthony Marrazzo was acting on behalf of the corporation." Defendant also attaches an internet search that indicates that A. Marrazzo Landscaping Co. is a domestic corporation, which is an improper supplementation of the record on appeal, R. 2:5-4(a), and, incidentally, is not competent evidence as it only indicates "[t]hese results are current through 02/06/2009" with no reference to the date of incorporation.

Affirmed.

 

The appellate appendix does not include this attachment.

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A-2887-08T1

January 13, 2010