SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2690-19

THEODORE IMFELD and

W&F PROPERTIES, LLC,

Plaintiffs-Respondents,

v.

THOMAS BUTTERY and

LENORE BUTTERY,

Defendants-Appellants.

________________________

Submitted May 3, 2021 – Decided July 29, 2021

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. DC-015679-

19.

Lawrence M. Centanni, attorney for appellants.

The Law Office of Piro, Zinna, Cifelli, Paris & 

Genitempo, attorneys for respondents (Richard A. 

Grodeck, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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A-2690-19

Defendants Thomas Buttery and Lenore Buttery appeal from two orders 

of the Special Civil Part: (1) a January 30, 2020 order for possession of the house 

in which they reside; and (2) a January 30, 2020 order denying their motion to 

dismiss this ejectment action for lack of subject matter jurisdiction. Having 

concluded that the Special Civil Part lacked jurisdiction to hear the matter, we 

vacate both orders and remand for entry of an order dismissing the complaint.

I.

The following facts are derived from the record. In 1985, plaintiff 

Theodore Imfeld and Buttery1acquired title to a parcel in South Plainfield. 

Although the property is zoned for commercial use, a house situated on the 

parcel was a non-conforming use at the time of the purchase. After the transfer 

of title, Buttery resided in the house. He was later married and his wife moved 

into the residence. Imfeld and Buttery were also co-owners of Ted's 

Landscaping & Paving, Inc., which operated at the property.

The parties intended to further develop the property for their business 

operations. On July 16, 1985, the municipal planning board approved the 

parties' site plan application for a commercial development, subject to the 

condition that the residence be demolished within five years. Buttery thereafter 

1

 Defendants are married. We refer to Thomas Buttery as "Buttery."
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obtained from the planning board a series of extensions of the demolition based

on hardships caused by his poor health. The last extension expired in January 

1993. The residence was never demolished and the Butterys continued to live 

in the house.

In December 2001, Imfeld acquired Buttery's interest in the property. In 

the contract of sale, Imfeld granted Buttery a life estate entitling him to live in 

the house rent free. The agreement provides that Imfeld is to pay Buttery an 

additional $100,000 in the event Buttery elects to terminate his life estate and 

vacate the property.

In May 2019, Imfeld formed plaintiff W&F Properties, LLC (W&F), to 

which he transferred his interest in the property. The transfer of title appears to 

have alerted the municipality to the fact that the home had not been demolished.

On August 5, 2019, a municipal official served Imfeld and W&F a 

summons for violating the demolition requirement in the 1985 resolution. In 

addition, the municipality demanded that the home be demolished. Imfeld 

appeared in municipal court on the summons and secured a continuance to 

explore the possibility of obtaining a use variance for the house. After 

determining that obtaining a use variance would be impossible, Imfeld 
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demanded possession of the home from the Butterys. They refused to vacate the 

property.2

On November 26, 2019, Imfeld and W&F filed a verified complaint for 

ejectment against the Butterys in the Special Civil Part. They sought resolution 

of the matter in a summary proceeding. The trial court subsequently issued an 

order to show cause why the Butterys should not be ejected from the property.

The Butterys opposed the order to show cause and objected to resolution 

of the matter in a summary fashion, given the complexity and nature of the facts 

surrounding their occupancy of the home. In addition, they argued that the life 

estate granted to Buttery in the December 2001 contract was a colorable claim 

of right to possess the property pursuant to Rule 6:1-2(a)(4) outside the 

jurisdiction of the Special Civil Part. The Butterys requested that the matter be 

transferred to the Law Division or Chancery Division.

At about the same time, the Butterys filed a complaint in the Chancery 

Division alleging Imfeld breached various provisions of the December 2001 

contract for the transfer of Buttery's interest in the property. The Butterys 

2

 Ultimately, Imfeld entered a guilty plea to the charge of failing to comply with 

the resolution requiring demolition of the home. The court imposed a $1000 

fine. Imfeld argues that he faces daily fines and further enforcement action, 

including incarceration, as long as the home is not demolished.
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alleged, among other claims, that Imfeld's formation of W&F and his transfer of 

title to the property to that entity were intended to defeat and subvert Buttery's 

life estate. They also alleged that Imfeld's filing of the ejectment action in the 

Special Civil Part constituted malicious prosecution and abuse of civil process. 

The Butterys demanded: (1) specific performance of various provisions of the 

December 2001 contract, including recognition of Buttery's life estate in the 

property; (2) application of promissory estoppel to prevent their removal from 

the property; (3) partition of the life estate and the compelled purchase of the 

life estate by Imfeld; (4) reformation of the contract; and (5) damages.

The Butterys moved in the Special Civil Part to dismiss the ejectment 

action for want of subject matter jurisdiction because Buttery asserted a 

colorable claim to a possessory interest in the property. They argued that 

Buttery's claim to a life estate, if proven, would provide a complete defense to 

the ejectment action. In the alternative, the Butterys requested: (1) that the 

matter not proceed in a summary fashion; (2) that they be allowed to file an 

answer and counterclaim; or (3) that the matter be transferred to the Chancery 

Division for consolidation with their breach of contract and malicious 

prosecution action, which, they alleged, involved claims arising out of 
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ownership of the same parcel and intertwined issues that should be resolved 

together.

3

During the summary proceeding on the ejection action, Imfeld and W&F

argued that the life estate granted in the December 2001 agreement was invalid 

because it is contrary to the 1985 resolution and subsequent extensions, which 

require demolition of the home. Buttery countered that he had at the very least 

a colorable claim to possession of the home, which deprived the Special Civil 

Part of jurisdiction to hear the ejectment action.

On January 30, 2020, the trial court issued an oral opinion. The court 

denied Butterys' motion to dismiss the ejectment action for want of subject 

matter jurisdiction. The court concluded the Butterys did not have a colorable 

claim to possession of the property because the provision of the December 2001 

contract granting him a life estate was void as contrary to law and public policy. 

The court severed that provision from the remainder of the contract. As a result, 

the court granted Imfeld and W&F's request for an order for possession.

3

 The Butterys also moved in the Chancery Division to transfer the ejectment 

action to the Chancery Division for consolidation with their pending breach of 

contract and malicious prosecution action. On March 9, 2020, the Chancery 

Division denied the motion to transfer as moot, given the January 30, 2020 

orders of the Special Civil Part.
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On January 30, 2020, the court entered an order denying the Butterys'

motion to dismiss the ejectment action. In addition, on that date the court 

entered an order for possession in favor of Imfeld and W&F. The court stayed 

the January 30, 2020 order for possession until March 16, 2020 and directed that 

the order "may be stayed or otherwise modified by the judge handling" the 

Butterys' Chancery Division action. The record does not indicate whether the 

stay of the order for possession was subsequently extended.

This appeal follows. The Butterys make the following arguments.

POINT ONE

THE TRIAL COURT LACKED SUBJECT MATTER 

JURISDICTION TO HEAR AND CONSIDER [THE] 

COMPLAINT. PURSUANT TO RULE 6:2-3(4)(a)[, 

THE] ACTION, GIVEN ISSUES RELATED TO 

[BUTTERY'S] CLAIMS OF RIGHT PURSUANT TO 

A LIFE ESTATE, WAS NOT COGNIZABLE IN THE 

SPECIAL CIVIL PART.

POINT TWO

THE TRIAL COURT COMMITTED REVERSIBLE 

ERROR IN HANDLING THE INSTANT MATTER IN 

A SUMMARY FASHION, RATHER THAN 

ORDERING A FULL PLENARY TRIAL.

POINT THREE

THE TRIAL COURT ABUSED ITS DISCRETION IN 

NOT DEFERRING ADJUDICATION OF THIS 

MATTER UNTIL SUCH TIME AS THE CHANCERY 
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DIVISION HAD AN OPPORTUNITY TO RULE 

UPON [THE BUTTERYS'] NOTICE OF MOTION TO 

TRANSFER AND CONSOLIDATE.

POINT FOUR

THE TRIAL COURT COMMITTED REVERSIBLE 

ERROR IN DENYING [THE BUTTERYS'] MOTION 

TO DISMISS [THE] COMPLAINT. 

II.

"A trial court's interpretation of the law and the legal consequences that 

flow from established facts are not entitled to any special deference." 

Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 

366, 378 (1995); accord Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Pursuant to N.J.S.A. 2A:35-1, "[a]ny person claiming the right of 

possession of real property in the possession of another, or claiming title to such 

real property, shall be entitled to have his rights determined in an action in the 

Superior Court." The Butterys do not contest the right of Imfeld and W&F to 

file an ejectment action against them pursuant to this provision. They argue, 

however, that the Special Civil Part lacked jurisdiction to adjudicate Imfeld and 

W&F's claims and to decide those claims in a summary proceeding. We agree.

The jurisdiction of the Special Civil Part is limited. Rule 6:1-2(a)(4) 

expressly provides that
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[t]he following matters shall be cognizable in the 

Special Civil Part . . . .

. . . .

(4) Summary actions for the possession of real 

property pursuant to N.J.S.A. 2A:35-1, et seq., where 

the defendant has no colorable claim of title or 

possession . . . .

A colorable claim is "[a] plausible claim that may reasonably be asserted, given 

the facts presented and the current law." Black's Law Dictionary 312 (11th ed. 

2019). "The Legislature did not intend for the Special Civil Part . . . to determine 

disputed land titles and complex equitable issues in the context" of a summary 

proceeding, in which discovery is not permitted. Carr v. Johnson, 211 N.J. 

Super. 341, 347 (App. Div. 1986).

In response to Imfeld and W&F's ejection action, Buttery asserted a 

colorable claim of a possessory interest in the property through a life estate. 

While Imfeld and W&F argued that the contract provision purporting to grant 

the life estate to Buttery was unenforceable because of the demolition 

requirement in the conditional site plan approval, that contention did not render 

Buttery's claim of a possessory interest facially invalid. The validity of Imfeld 

and W&F's position was not readily apparent, particularly in light of the 
10 A-2690-19

undisputed inaction by the municipality to enforce the demolition requirement 

over a period of nearly twenty-seven years.

The facts alleged in response to the ejection action raised questions of 

estoppel and reliance, as well as the validity of the December 2001 sale of 

Buttery's interest in the property if Imfeld's transfer of a life estate was invalid. 

The severability of the life-estate provision from the remainder of the contract 

is disputed by the parties. If the life-estate provision is invalid and not severable 

from the remainder of the contract, Buttery would have an ownership interest in 

the property and an obvious colorable claim of a possessory interest.

The Butterys asserted various contract and equitable claims in their 

Chancery Division action, which was pending at the time that the Special Civil 

Part held its summary proceeding on the ejectment action. The Butterys' 

Chancery Division claims are inextricable from the claims asserted in the 

ejectment action. It was error for the Special Civil Part to resolve the summary 

ejectment action rather than dismiss the complaint and allow the parties to 

pursue their claims in the Chancery Division.

In light of our conclusion with respect to subject matter jurisdiction, we 

need not resolve the remaining claims raised by the Butterys.
11 A-2690-19

The January 30, 2020 orders are vacated and the matter is remanded for 

entry of an order dismissing the complaint. We do not retain jurisdiction.