PETER A. RILEY v. EDWARD E. MAZER

(NOTE: The status of this decision is published.)
 

ORDER ON EMERGENT APPLICATION

 
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SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2931-07T3

MOTION NO. M-3540-07

BEFORE PART: B

JUDGE(S): CUFF

SIMONELLI

 

EMERGENT APPLICATION

FILED: January 24, 2008 BY: Appellants

ANSWER(S) FILED: January 30, 2008 BY: Plaintiffs

ORDER

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THIS MATTER HAVING THE COURT, IT IS ON THIS 6th DAY OF , , HEREBY ORDERED AS FOLLOWS:

EMERGENT APPLICATION

FOR

 
GRANTED DENIED OTHER

 
() () ()

SUPPLEMENTAL:

The January 18, 2008 order is summarily reversed and the matter is remanded to the Law Division in accordance with the Opinion attached to this Order. The stay is vacated.

FOR THE COURT:

[signed]

 

 
MARIE SIMONELLI, J.S.C. t/a

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2931-07T32931-07T3

PETER A. RILEY, RILEY'S

SERVICE STATION, INC.,

and EAST CEDAR SERVICE CENTER, INC.,

Plaintiffs-Respondents,

v.

EDWARD E. MAZER, EDWARD W. RAPKE,

RE & EM ENTERPRISES, L.L.C., and

LIVINGSTON SERVICE CENTER EAST, L.L.C.,

Defendants-Appellants.

___________________________________________

 

Argued March 5, 2008 - Decided

Before Judges Cuff and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8226-07.

Charles R. Cohen argued the cause for appellants (Cohn Lifland Pearlman Herrmann & Knopf, L.L.P., attorneys; Mr. Cohen, of counsel and on the brief).

Bruce C. LiCausi argued the cause for respondents.

PER CURIAM

On January 24, 2008, defendants filed an emergent application for a stay of the January 23, 2008 order denying their application for a stay of the January 18, 2008 order granting summary judgment to plaintiffs. On about January 28, defendants filed a motion for leave to appeal from the January 18, 2008 summary judgment order. On January 29, 2008, we granted the stay pending disposition of the motion for leave to appeal. On February 1, 2008, we granted the motion for leave to appeal and continued the stay. We reverse, remand for further proceedings, and vacate the stay.

This matter involves plaintiffs' sale of two Exxon gasoline stations in 2000 and 2001. It is clear the agreements governing these sales are asset purchase agreements. The parties dispute whether an Exxon Class Action award, made pursuant to a settlement in 2005, was an asset included in the sale.

Plaintiffs moved for summary judgment prior to the completion of discovery contending the award was not included in the sale. The buyer, defendant Edward W. Rapke, submitted a certification contending the award was included in the sale. The motion judge granted summary judgment without making findings of fact or conclusions of law. This was error. Rule 1:7-4(a).

Also, in determining whether there is a genuine issue of material fact for summary judgment purposes, the motion judge was required to accept as true the evidence in Rapke's certification and "'accord [defendants] the benefit of all legitimate inferences which can be deduced therefrom.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535 (1995) (quoting Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2007)). It is clear from Rapke's certification there is a genuine issue of material fact as to whether the award was included in the sale. Resolution of this issue requires further discovery.

However, it is not so clear that defendants are entitled to a stay of the release of the award to plaintiffs. Defendants have failed to show they will suffer irreparable injury with no adequate remedy at law; the legal right to their claim is settled; all material facts are uncontroverted; there is a reasonable probability of success on the merits; or the balancing of equities, taking into account the relative hardship to the parties, favors the entry of injunctive relief. Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982). Thus, the stay must be vacated.

Reversed and remanded for further proceedings in accordance with this opinion. The stay is vacated. The trial court shall afford the parties a reasonable extension of the discovery
period. We do not retain jurisdiction.

4

A-2931-07T3

PETER A. RILEY, RILEY'S SERVICE STATION, INC.; AND EAST CEDAR SERVICE CENTER, INC.

Plaintiffs-Respondents,

v.

EDWARD E. MAZER, EDWARD W. RAPKE, RE & EM ENTERS., LLC and LIVINGSTON SERVICE CENTER EAST, LLC.,

Defendants-Appellants.

 

FILED

March 13, 2008

APPELLATE DIVISION

MOTION FOR LEAVE TO APPEAL AND FOR A STAY OF THE JANUARY 18, 2008 ORDER GRANTING SUMMARY JUDGMENT TO PLAINTIFFS

March 13, 2008