SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1641-19T2

LESZEK ZAJAC,

Plaintiff-Appellant,

v.

RAMSEY OFFICE COURT, LLC,

d/b/a RAMSEY OFFICE COURT,

BHN REALTY ASSOCIATES,

INC., d/b/a/ BHN ASSOCIATES,

ROBYN DOUCETTE and

BARUCH ROSENFELD,

Defendants-Respondents.

_____________________________

Argued October 20, 2020 – Decided

Before Judges Yannotti, Haas and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-8531-18.

Christine E. Burke argued the cause for appellant 

(Karpf, Karpf & Cerutti, PC, attorneys; Christine E. 

Burke and Ari R. Karpf, on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.

November 19, 2020
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Randi A. Wolf argued the cause for respondents 

(Spector Gadon Rosen Vinci, PC, attorneys; Randi A. 

Wolf, on the brief).

PER CURIAM

Plaintiff appeals from orders entered by the Law Division on November 

22, 2019, which denied his motion for attorney's fees and costs, and granted 

defendants' cross-motion to enforce a settlement between the parties. We affirm.

I.

This appeal arises from the following facts. For about thirty years, 

plaintiff has provided handyman, painting, and maintenance services at a 

commercial office park/complex called The Office Court of Ramsey. According 

to defendants, plaintiff provided the services at the complex through and on 

behalf of ABS Pajac Construction and Painting, LLC (ABS), an entity owned 

by plaintiff's wife. 

Defendants assert that in June 2018, Baruch Rosenfeld purchased the 

property, and thereafter Ramsey Office Court, LLC (ROC) was created to 

provide administrative management for the property. Plaintiff claims BHN 

Realty Associates, Inc. (BHN) acquired the property in June 2018, but 

defendants assert BHN never owned, operated, managed, or had any relationship 

to the property. 
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Plaintiff alleged that when the new owners began to operate and manage 

the complex in 2018, he experienced discrimination based on his age, health 

problems, and national ancestry. Defendants assert that between June 2018 and 

October 2018, the owners decided to cancel the contracts with vendors who had 

been providing services at the complex to save money. In November 2018,

ABS's contract was terminated.

Following the termination of his contract, plaintiff filed a complaint 

naming ROC, BHN, and Robyn Doucette as defendants. He later filed an 

amended complaint, adding Rosenfeld as a defendant. Plaintiff alleged that 

from June 2018 to November 2018, Doucette was his immediate manager, and 

Rosenfeld supervised Doucette. Plaintiff claimed he was subjected to unlawful 

discrimination on the basis of his age, disabilities, and national origin, in 

violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-

1 to -49. 

Plaintiff also claimed defendants failed to pay him for regular work and 

overtime in violation of the federal Fair Labor Standards Act (FLSA), 29 U.S.C. 

§§ 201 to 219. In addition, he claimed defendants did not pay him in accordance 

with the requirements of New Jersey's Wage and Hours Law (NJWHL), N.J.S.A. 

34:11-56a1 to -56a41. 
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Plaintiff sought an injunction prohibiting defendants from continuing their 

alleged unlawful policies and practices; reimbursement for all pay and benefits 

he should have received, including increases, bonuses, and promotions; punitive 

damages; other equitable and legal relief the court deems just and proper; and 

the award of attorney's fees, costs, and expenses. 

Defendants filed an answer denying liability, and thereafter, the parties 

exchanged discovery. Among other things, defendants produced its insurance 

policy, which provided $100,000 in coverage, inclusive of counsel fees and 

costs. In December 2018, plaintiff sent defendants a letter demanding one 

million dollars to settle plaintiff's claims. The demand included all attorney's

fees and costs. In response to plaintiff's demand, defendants offered $25,000 to 

settle the matter, which was based on plaintiff's tax returns from 2014 to 2018. 

Plaintiff rejected the offer. 

In September 2019, the parties participated in mediation, which was not 

successful. Thereafter, the attorneys for the parties discussed the matter.

Plaintiff's attorney said she might be able to settle the case for $125,000 and she 

would not settle for less. On October 9, 2019, defendants filed with the court a 

written offer of judgment pursuant to Rule 4:58-1(a). The offer stated in part, 

"[defendants] hereby offer judgment to the [p]laintiff . . . in full and final 
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satisfaction of all claims asserted within [p]laintiff's [c]omplaint directed to 

[d]efendants, in the sum of [$100,000] without admission and without prejudice

. . . ."

On October 16, 2019, plaintiff filed a notice of acceptance of defendants'

offer with the court. In this acceptance, plaintiff "request[ed] entry of judgment 

by the Clerk in the amount of $100,000.00 against [d]efendants." The 

acceptance included a footnote stating, "[p]laintiff's [p]etition for counsel fees 

and for costs will be submitted separately subsequent to this acceptance." 

On the same day, the Clerk's Office issued a deficiency notice, which 

stated that the court could not enter judgment based upon the filing, and that 

either a motion or consent judgment was required. Later that day, plaintiff filed 

an amended notice of acceptance. It stated that plaintiff accepted defendants'

offer of judgment. The footnote regarding the petition for counsel fees and costs 

remained. The court's docket indicates that the case was dismissed "without 

prejudice" and "closed."

The following day, plaintiff filed a motion for the award of attorney's fees 

and costs. Plaintiff sought fees and costs in the amount of $55,959.59. 

Defendants opposed the motion and filed a cross-motion to enforce the 

settlement and compel plaintiff to execute a settlement agreement. On 
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November 22, 2019, the judge heard oral argument and entered orders which 

denied plaintiff's motion and granted defendants' cross-motion for reasons stated 

in an attached rider. This appeal followed. 

II.

On appeal, plaintiff argues that the trial court erred by denying his motion 

for attorney's fees and costs. He contends that he was the prevailing party in the 

litigation and therefore is entitled to the award of such fees and costs. Plaintiff 

contends that in the notice of acceptance of the offer of judgment, he did not 

expressly waive his right to seek attorney's fees and costs and instead expressly 

reserved the right to petition the court for an award of such fees and costs. He 

further argues that the motion judge erred by finding his agreement to settle the 

dispute for $100,000 was for full satisfaction of plaintiff's claims, including his 

claim for attorney's fees and costs incurred in the litigation. 

Here, plaintiff sought the award of attorney's fees and costs pursuant to a 

provision of the LAD. The statute provides in pertinent part that "[i]n any action 

or proceeding . . . the prevailing party may be awarded a reasonable attorney's 

fee as part of the cost, provided however, that no attorney's fee shall be awarded 

to the respondent unless there is a determination that the complainant brought 

the charge in bad faith." N.J.S.A. 10:5-27.1. 
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Plaintiff also sought counsel fees and costs pursuant the FLSA, which 

provides, in relevant part:

An action to recover the liability prescribed in the 

preceding sentences may be maintained against any 

employer . . . in any Federal or State court of competent 

jurisdiction by any one or more employees for and in 

behalf of himself or themselves and other employees 

similarly situated. No employee shall be a party 

plaintiff to any such action unless he gives his consent 

in writing to become such a party and such consent is 

filed in the court in which such action is brought. The 

court in such action shall, in addition to any judgment 

awarded to the plaintiff . . . allow a reasonable 

attorney's fee to be paid by the defendant, and costs of 

the action.

[29 U.S.C. § 216(b).]

In addition, plaintiff sought counsel fees and costs pursuant to the 

NJWHL. The statute states that if an employer pays an employee less than the 

minimum fair wage to which they are entitled under the NJWHL, "the employee 

may recover in a civil action the full amount of such minimum wage less any 

amount actually paid to him or her by the employer," together with costs and 

such reasonable attorney's fees as determined by the court. N.J.S.A. 34:11-

56a25. 

Initially, we reject plaintiff's contention that he is entitled to attorney's

fees and costs under the FLSA and the NJWHL. A judgment was never entered 
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in this matter granting plaintiff any relief pursuant to the FLSA. Therefore, he 

was not entitled to attorney's fees and costs under 29 U.S.C. § 216(b). Moreover, 

the court did not enter a judgment awarding plaintiff the "full amount" of wages 

due pursuant to the NJWHL. Consequently, he was not entitled to an award of 

attorney's fees under N.J.S.A. 34:11-56a25. 

We conclude, however, that plaintiff was a "prevailing party" under the 

LAD. Our Supreme Court has held that "a plaintiff who is awarded some 

affirmative relief by way of an enforceable judgment against defendant or other 

comparable relief through a settlement or consent decree is a prevailing party 

under N.J.S.A. 10:5-27.1 of the LAD." Tarr v. Ciasulli, 181 N.J. 70, 86-87

(2004). 

Here, defendants filed an offer of judgment in which they offered to pay 

plaintiff $100,000 "in full and final satisfaction of all claims asserted" in his 

complaint. Plaintiff accepted the offer. Under the agreement, plaintiff obtained 

relief comparable to an enforceable judgment on his LAD claims. Therefore, he

was a "prevailing party" under N.J.S.A. 10:5-27.1. Tarr, 181 N.J. at 86-87. 

Plaintiff argues that as a prevailing party, he was entitled to an award of 

counsel fees and costs. He contends the trial court erred by holding he waived 

his right to seek such fees and costs. Plaintiff argues that when an offer of
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judgment does not expressly provide for the waiver of counsel fees and costs, 

acceptance of the offer does not preclude the award of such fees and costs. 

In support of this argument, plaintiff cites decisions of the federal courts 

interpreting the federal offer of judgment rule, Fed. R. Civ. P. 68. See, e.g., 

Lima v. Newark Police Dept., 658 F.3d 324, 331 (3d Cir. 2011) (holding that 

when an offer of judgment is silent as to fees and costs, they must be fixed by 

the court after the offer is accepted); Torres v. Metropolitan Life Ins. Co., 189 

F.3d 331, 333-35 (3d Cir. 1999) (concluding that the release of all claims or 

demands asserted in the litigation did not preclude the filing of an application 

for counsel fees and costs). However, our courts have not applied this brightline rule in all matters where a litigant has a statutory right to attorney's fees and 

costs. 

In Coleman v. Fiore Bros., Inc., the plaintiffs asserted claims under the 

Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, arising from the installation and 

financing of certain home improvements. 113 N.J. 594, 607 (1989). During the 

litigation, the plaintiffs were represented by a public interest law firm. Id. at 

596. The claims were settled and thereafter the plaintiffs' attorney filed an 

application for attorney's fees. Id. at 608. Plaintiff's counsel took the position 

that she could not negotiate damages and counsel fees simultaneously. Ibid.
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The Court held that private counsel could insist, without ethical conflict, 

on a fee allowance as part of a settlement of an action in which a statute provides 

for the award of counsel fees to the prevailing party. Id. at 603. However, where 

the plaintiffs are represented by public-interest counsel, defense counsel may 

not insist upon waiver of fees as a condition of settlement. Id. at 606. 

The Court then considered whether, under the facts of the case, the 

statutory claims for attorney's fees were encompassed within the negotiated 

settlement and stipulation dismissing the claims. Id. at 607-11. The Court 

refused to hold, based on the federal case law, that a settlement agreement 

should not be interpreted as waiving an award of attorney's fees in the absence 

of a specific and expressed waiver. Id. at 609 (citing Ashley v. Atlantic 

Richfield Co., 794 F.2d 128, 130 (3d Cir. 1986); El Club del Barrio, Inc. v. 

United Cmty. Corps., 735 F.2d 98 (3d Cir. 1984); Folsom v. Butte Cty. Ass'n of 

Gov'ts, 652 P.2d 437 (Cal. 1982); Tallon v. Liberty Hose Co. No. 1, 485 A.2d 

1209 (Pa. Super. Ct. 1984)). 

The Coleman Court pointed out that, "there has been no attempt to reserve 

the issue" and the parties' agreement stated only that "[a]ll claims for damages" 

were settled. Id. at 610. The Court held the claims for counsel fees were 

encompassed by the settlement, noting that "it would run counter to the fair 
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expectations of counsel . . . to have surmised" that New Jersey's public policy 

would not permit such a settlement. Id. at 610-11. 

Thus, Coleman expressly refused to adopt the principle that a settlement 

agreement will not be interpreted as waiving attorney's fees and costs unless the 

agreement expressly waives such fees and costs. Under Coleman, the question 

of whether the parties agreed that a settlement would encompass a statutory 

claim for attorney's fees must be decided based on the facts and circumstances

of a particular matter. 

The Court addressed these issues again in Pinto v. Spectrum Chemical & 

Laboratory Products Corp., 200 N.J. 580 (2010). In that matter, the plaintiffs 

asserted claims under the LAD and the Conscientious Employee Protection Act 

(CEPA), N.J.S.A. 34:19-1 to -14. Id. at 585. The plaintiffs were represented by 

a public interest law firm. Ibid. 

The parties participated in court-ordered mediation, and the mediator

believed they had settled the case. Id. at 586. The parties, however, had 

different understandings of the terms of the agreement, which had not been put 

in writing. Ibid. The plaintiffs' attorney asserted that the parties had only

reached an agreement on the dollar amount of the substantive claims, and noted 
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that under Coleman, he could not negotiate fees until a settlement was reached 

on the underlying claims. Id. at 587.

The defendant's attorney asserted that the parties had settled all financial 

issues, including attorney's fees. Id. at 586-87. The defendant's attorney also

stated that she told the plaintiffs' attorney that adding attorney's fees was a "deal 

breaker" and her client would not agree to a settlement that did not encompass 

or address attorney's fees. The trial court found the agreement was 

unenforceable because there had been no meeting of the minds. Id. at 587. 

The Court noted that the central issue was whether the holding of Coleman

should be extended to LAD and CEPA claims. Id. at 588. The Court held that 

Coleman's ban on the simultaneous negotiation of substantive claims and 

attorney's fees no longer had "continuing vitality." Id. at 598. 

The Court determined that giving public interest attorneys and defendants 

the authority to simultaneously negotiate these issues was consistent with the 

Legislative aims of the CFA, LAD, and CEPA. Id. at 599. However, the Court 

continued the prohibition of defendants conditioning settlement on the waiver 

of attorney's fees in fee-shifting cases involving public interest law firms. Ibid.

The Court also upheld the trial court's determination that there was no 

settlement in the matter "because the parties never had a meeting of the minds 
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on the precise terms of the agreement." Id. at 600. The Court noted that had the 

parties reduced the agreement to writing, the differences in their positions would 

have been apparent. Ibid. The Court observed that the plaintiff believed the 

settlement only applied to the merits claims and did not preclude them from 

seeking statutory attorney's fees, while defendant believed the parties had reach 

a global resolution of all claims. Ibid.

Significantly, the Court in Pinto did not adopt the federal case law 

pertaining to the waiver of attorney's fees. Rather, the Court determined whether 

the parties had reached an agreement on attorney's fees based on the relevant 

facts and circumstances. 

Plaintiff argues, however, that Warrington v. Village Supermarket, Inc., 

supports his contention that the trial court erred by finding he waived his right 

to seek attorney's fees and costs. 328 N.J. Super. 410, 418-19 (App. Div. 2000). 

In Warrington, the plaintiff brought a lawsuit against a supermarket claiming 

that its facilities did not provide handicapped individuals with access as required 

by law. Id. at 415. 

The plaintiff in Warrington asserted claims under New Jersey’s 

Handicapped Access Law, N.J.S.A. 52:32-4 to -10; the LAD; and the Americans 

with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213. Id. at 414-15. She 
14 A-1641-19T2

sought compensatory and punitive damages, as well as various types of 

injunctive relief. Id. at 415. She also sought attorney's fees and costs under the 

ADA and LAD. Ibid.

Prior to the scheduled trial date, the parties settled the substantive issues, 

and a consent judgment was filed. Ibid. The consent order was silent on the 

issue of attorney's fees and costs. Id. at 416. We noted that in Coleman, the 

Court had examined the course of negotiations, the parties' settlement 

documents, and conduct of counsel "to determine if a plaintiff has waived a right 

to a statutory fee." Id. at 418 (discussing Coleman, 113 N.J. at 610-11). 

We also noted that the federal courts had developed a different rule for 

cases in which a plaintiff successfully pursues claims under statutes that allow 

for the award of counsel fees, and have held that the prevailing party will be 

entitled to attorney's fees "unless the settlement agreement expressly and 

specifically waives that right." Ibid. (citing Torres, 189 F.3d at 333-34; El Club 

Del Barrio, 735 F.2d at 99). We applied the federal rule because plaintiff based 

her claims in part on federal law, and the consent judgment "vindicate[d] the 

rights expressly secured by the ADA." Id. at 419 (footnote omitted). 

However, plaintiff's reliance upon Warrington is misplaced. Here, the 

record shows that plaintiff sought relief under state and federal law. He claims 
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the settlement vindicates his rights under the FLSA, but the settlement merely 

calls for payment of $100,000, and does not expressly vindicate any rights under 

the FLSA. In Warrington, by contrast, part of the relief obtained under the 

settlement was equitable relief addressing the handicap access issues that were 

the basis for the federal ADA claims. Ibid.

We conclude the trial court correctly determined that the issue of whether 

a party waives a statutory right to the award of attorney's fees and costs must be 

decided based on the relevant facts and circumstances. The court correctly 

found that under New Jersey law, there is no bright-line test for determining if 

a party to a settlement has waived a claim for attorney's fees and costs when the 

agreement is silent on the issue. 

III.

Plaintiff further argues the trial court erred by finding that defendants'

offer of judgment was intended to include his claim for attorney's fees and costs, 

and plaintiff's acceptance of that offer constituted a waiver of the claims for fees 

and costs. We disagree.

Here, the trial court found based on the relevant facts and circumstances, 

that plaintiff's acceptance of defendants' offer of judgment resolved all claims, 

including plaintiff's claims for counsel fees. In his written statement of reasons, 
16 A-1641-19T2

the judge noted that the parties settled the matter after conducting limited 

discovery, and they disputed the value of the case from the inception of the 

litigation. Initially, plaintiff was firm in his demand for $1 million, and 

defendants were not willing to offer more than $25,000 since that offer had been 

based on plaintiff's tax return and his disputed employment status. 

Moreover, defendants' insurance coverage was limited to $100,000, with 

an erosion for defense costs. Defendants offered plaintiff the maximum amount 

under the policy to resolve the litigation quickly. The judge noted that the offer 

was "largely driven" by the policy's limits and erosion provision. 

The judge further noted that the record showed plaintiff's claims "were 

subject to significant defenses." The judge found that in making the offer, 

defendants understood that it was inclusive of attorney's fees. The judge stated:

While [the] better practice may have been to 

specifically delineate the matter of attorney's fees, both 

sides had an ability to clarify the issue. Adopting the 

[p]laintiff's position would mean that the defense made 

the offer recognizing that it would be subject to further 

significant exposure. This is highly unlikely. It is 

apparent that [d]efendant[s'] Offer of Judgment was 

inclusive of attorney's fees. Counsel for [p]laintiff, 

although seeking to utilize federal law to obtain 

attorney's fees, cannot have understood [d]efendant[s'] 

counsel to have intended otherwise. No reasonable 

interpretation of the course of dealings between counsel 

would indicate otherwise. 
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We are convinced there is sufficient credible evidence in the record to 

support the trial court's findings. The record supports the court's determination 

that by accepting defendants' offer of judgment, plaintiff waived his right to 

petition the court for an award of attorney's fees and costs. 

IV.

Plaintiff further argues that the motion judge misapplied the offer of 

judgment rule by entering an order enforcing the settlement and requiring that 

he execute a written settlement agreement. He contends he accepted an offer of 

judgment; he did not enter into a settlement agreement. Plaintiff argues that the 

motion judge misapplied his discretion by making him execute documents with 

terms he never negotiated or agreed to. 

The record shows that after plaintiff's attorney filed the notice accepting 

the offer of judgment, defendants provided plaintiff's attorney with a written 

settlement agreement and asked that it be executed. The proposed agreement: 

(1) states there is no admission of liability or wrongdoing of any kind with 

respect to the claims raised in the lawsuit; (2) requires defendants to pay plaintiff 

$100,000 "in full and final compromise and satisfaction of all claims asserted in 

the [l]awsuit . . ."; (3) requires execution of a stipulation of dismissal, Internal 

Revenue Service Form W-9, and a child support judgment search; (4) states that 
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payment is a full and fair settlement of the litigation; (5) indicates that the parties 

agree defendants have no obligation to pay plaintiff or his attorney any 

payments, benefits, or consideration other than those provided in the agreement; 

(6) provides for dismissal of the lawsuit; (7) states that New Jersey law controls 

the interpretation and enforcement of the agreement; (8) includes a 

representation that plaintiff has consulted with counsel before entering the 

agreement; (9) provides that the terms of the agreement cannot be modified 

except by a written agreement signed by the party against whom enforcement of 

such modification may be sought; (10) states that plaintiff represents he is not 

enrolled in certain Medicare programs; (11) includes an agreement that N.J.S.A. 

2A:17-56.23b requires a search of child support judgments before distribution 

of any settlement proceeds to plaintiff; (12) states that the parties have had 

ample opportunity to review the agreement; and (13) provides for the execution 

of the agreement in counterparts and delivery by facsimile or electronic mail. 

We reject plaintiff's contention that the parties did not reach a settlement 

agreement. As noted previously, his acceptance of the offer of judgment 

provides him with relief comparable to a settlement or consent decree. 

Moreover, the proposed agreement includes provisions that are intended to

facilitate payment of the $100,000 defendants agreed to pay to resolve the 
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dispute. The proposed agreement includes general terms of the sort typically 

included in agreements of this kind. The motion judge did not err by enforcing 

the parties' agreement and requiring plaintiff to execute the proposed written 

agreement. 

On appeal, plaintiff also contends the judge erred by stating that if plaintiff 

did not waive his right to seek counsel fees and costs, the court had the discretion 

to deny his application for such fees and costs. In view of our decision, we need 

not address this issue.

Affirmed.