SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0893-20

CARMEL REALTY, INC.,

Plaintiff-Respondent/

Cross-Appellant,

v.

FAIRVIEW BERGEN 

ASSOCIATES, LLC, and 

JP MANAGEMENT, LLC,

Defendants-Appellants/

Cross-Respondents.

___________________________

Submitted February 17, 2022 – Decided February 28, 2022

Before Judges Haas and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Bergen County, Docket No. 

C-000173-19.

Brach Eichler, LLC, attorneys for appellants/crossrespondents (Bob Kasolas, of counsel and on the 

briefs).

Barto & Barto, LLC, attorneys for respondent/crossappellant (Raymond Barto, 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NOT FOR PUBLICATION WITHOUT THE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.
2

A-0893-20

PER CURIAM

In this dispute over a lease involving twenty-eight parking spaces in an 

apartment complex garage, defendants Fairview Bergen Associates, LLC (FBA) 

and J.P. Management, LLC appeal from the Chancery Division's (1) April 17, 

2020 order granting plaintiff Carmel Realty, Inc.'s cross-motion for partial 

summary judgment and dismissing defendants' affirmative defenses; (2) June 9, 

2020 order denying defendants' motion for reconsideration; and (3) October 22, 

2020 final judgment in favor of plaintiff following a bench trial. Plaintiff crossappeals from the portion of the October 22, 2020 judgment that denied its 

request for access to the parking spaces through all three doors of the garage. 

After reviewing the record in light of the contentions the parties raise on appeal, 

we affirm the three orders substantially for the reasons set forth in Judge James 

J. DeLuca's comprehensive written decisions supporting each of his rulings.

The judge extensively detailed the underlying procedural history and facts 

of this case in his three opinions. Therefore, we need only briefly summarize 

this material here.

Joseph Berardo and Oded Aboodi were equal partners in two companies, 

Crystal Lake, Inc. and Aras Properties, Inc. (Aras). Crystal Lake owned 

commercial real property at 371 Bergen Boulevard in Fairview (the 371 
3

A-0893-20

Property). Aras owned the property next door at 361 Bergen Boulevard (361 

Property). Aras had retail space on the first floor of its building and three 

residential apartments on the second floor. 

On April 1, 1994, Crystal Lake agreed to lease Aras twenty-eight parking 

spaces in a garage it was constructing, along with an apartment building, at the 

371 Property. Aboodi signed the written lease as the president of both 

companies. The lease term was ninety-nine years, and the annual rent was $1 

per year. Aras also agreed to secure insurance for the parking spaces. The 

companies filed a Memorandum of Lease documenting this arrangement with 

the county clerk's office.

On July 21, 1994, Crystal Lake sold the 371 Property to a third party, 

Fairview Associates 94 LP (Fairview 94). That company completed 

construction of the apartment building and garage. At the beginning of the lease 

term, Aras paid Fairview 94 the annual rent each year, but later simply paid the 

rest of the rent for the lease term in a lump sum. Aras also obtained the required 

insurance coverage each year. 

Plaintiff asserted Aras used the parking spaces after Fairview 94 finished

the garage. Aras' employees parked in the garage and the company also stored 

equipment and other materials in the leased area.
4

A-0893-20

The parking garage had three entrance doors. The lease did not designate 

which entrance Aras was to use to access its spaces. The garage's main point of 

ingress was through the "northern entrance." There was also a "southern 

entrance," which was primarily used to admit vendors, and a side-street access 

door known as the "Morningside Avenue entrance." Plaintiff claimed Aras had

a key permitting it to use the southern entrance, which was nearer to its 

designated parking spaces than the northern entrance.

On May 31, 2001, Aboodi executed an "Assignment & Assumption 

Agreement" on behalf of Aras that assigned the parking lease to plaintiff, a real 

estate property company. Berardo was plaintiff’s president. On August 11, 

2004, Aras conveyed the 361 Property to plaintiff.

After plaintiff obtained title to the 361 Property, it stored construction 

materials and other items on the first floor and rented the three second-floor 

apartments. Plaintiff continued to use some of the twenty-eight parking spaces 

in the parking garage on the 371 Property and maintained the required insurance.

On November 1, 2018, Fairview 94 sold the 371 Property to defendant 

FBA. According to FBA's managing member, John Pjeternikaj, defendants were 

aware there was a lease in effect for the twenty-eight parking spaces when FBA 

purchased the 371 Property. The Agreement of Sale had a copy of the April 1, 
5

A-0893-20

1994 lease attached to it as an exhibit, and Fairview 94 "represent[ed] that the 

Crystal/Aras Lease is currently in full force and effect, and there have been no 

defaults by the Landlord under the Crystal/Aras Lease."

On behalf of plaintiff, Berardo also provided defendants and Fairview 94 

with a Tenant Estoppel Certificate attesting that the lease was "in full force and 

effect"; did not expire until March 31, 2093; and that the rent had already been 

paid through that date. In addition, FBA stated it was "satisfied with the Parking 

Lease Estoppel and layout of parking spaces subject thereto" in the First 

Amendment to Agreement of Sale relating to its purchase.

After FBA became the landlord under the parking lease, plaintiff noticed 

that unauthorized vehicles were parking in its spaces. It notified Pjeternikaj of 

the problem, and FBA took immediate steps to correct it. Thereafter, plaintiff 

asserted it continued to use the parking spaces and to enter the garage through 

the southern entrance.

In March 2019, however, plaintiff claimed defendants changed the lock 

on the southern entrance and its key no longer worked. Defendants denied 

changing the lock but denied plaintiff's request to permit it to enter the garage 

through the southern entrance. Plaintiff also discovered that defendants had 

fenced off two of its parking spots and were using the spaces for storage.
6

A-0893-20

On July 3, 2019, plaintiff filed a complaint and order to show cause 

against defendants seeking an order permitting it access to the garage and its 

parking spaces through the southern entrance. Defendants responded by filing 

a counterclaim for a declaratory judgment that the lease was void and 

unenforceable and that plaintiff had surrendered or abandoned its rights under 

it.1

Both parties subsequently filed motions for summary judgment. In his 

April 17, 2020 decision, Judge DeLuca denied defendants' motion in its entirety 

and plaintiff's motion to the extent it sought a final judgment against defendants 

because a trial was needed to resolve the factual disputes raised by the parties. 

However, the judge considered the merits of defendants' counterclaims and 

affirmative defenses because these issues involved questions of law.

Defendants asserted the lease was not valid because it was not "the result 

of arm's length transactions between Aras and Crystal Lake" and was not 

"entered into for legal consideration." Defendants also argued the terms of the 

lease were unconscionable and violated the statute of frauds and best evidence 

rule. Judge DeLuca rejected each of these contentions.

1

 Judge DeLuca ordered defendants to permit plaintiff to access the garage 

through the northern entrance during the pendency of the trial court litigation.
7

A-0893-20

Addressing the propriety of the April 1, 1994 lease agreement between 

Crystal Lake and Aras, the judge found that although the partners in each were 

the same, the companies were separate legal entities. The judge stated:

The fact that such entities may have been owned . . . by 

the same individuals does not make the Parking Lease 

any more or less enforceable than if it had been entered 

into by entities controlled by different members or 

shareholders. Thus, this court rejects [d]efendants' 

argument that this was anything other than an arm's 

length transaction between two separate entities. 

Defendants provide no evidence, and only speculation, 

as to the bona fides of these entities.

Judge DeLuca also found the lease was supported by adequate 

consideration. "Consideration is the price bargained for and paid for a promise." 

Friedman v. Tappan Dev. Corp., 22 N.J. 523, 535 (1956). "Consideration may 

take many forms and may be based upon either 'a detriment incurred by the 

promisee or a benefit received by the promisor.'" Seaview Orthopaedics ex rel. 

Fleming v. Nat'l Healthcare Res., Inc., 366 N.J. Super. 501, 508 (App. Div. 

2004) (quoting Cont'l Bank of Pa. v. Barclay Riding Acad., Inc., 93 N.J. 153, 

170 (1983)). In determining whether a contract should be enforced, the court 

is not responsible for questioning the "adequacy of consideration" because 

consideration is not dependent "upon the comparative value of the 'things' 

exchanged." Id. at 508-09 (internal quotations omitted). Consideration "must 
8

A-0893-20

merely be valuable in the sense that it is something that is bargained for in fact." 

Id. at 509 (quoting Borbely v. Nationwide Mut. Ins. Co., 547 F. Supp. 959, 980 

(D.N.J. 1981)).

Consistent with these principles, Judge DeLuca determined that Aras, and 

later plaintiff, paid the required rent and provided the necessary insurance under 

the lease. In return, Fairview 94 and defendants, as that company's successor,

provided the twenty-eight parking spaces to plaintiff.

While the annual rental fee was nominal, Judge DeLuca found the contract 

was not unconscionable. The judge noted that defendants were fully aware of 

the existence of the lease when FBA purchased the 371 Property from Fairview 

94. The lease was a matter of public record because it was filed with the county 

clerk. In addition, plaintiff provided defendants with a Tenant Estoppel 

Certificate attesting to the fact that the agreement was in full force and effect. 

FBA and Fairview 94 even attached the lease to their contract of sale, and FBA 

stated in the first amendment to the contract that it was satisfied with the 

estoppel document and the layout of the parking spaces. Based upon these 

undisputed facts, the judge found no basis for defendants' claim that the terms 

of the lease were unconscionable.
9

A-0893-20

Judge DeLuca also rejected defendants' argument that the lease should be 

declared void under the statute of frauds and barred from evidence by the best 

evidence rule because plaintiff could only produce a copy of it rather than the 

original. The judge found the terms of the lease were well known to the parties 

and had been in effect since 1994. As noted above, the lease was recorded with 

the county clerk and Pjeternikaj admitted he was aware of the lease at the time 

FBA bought the 371 Property. There was therefore no genuine question raised 

as to the authenticity of the lease agreement that would require it to be voided 

or barred from evidence.

Defendants thereafter filed a motion for reconsideration, raising the exact 

same arguments Judge DeLuca addressed in his April 17, 2020 decision. The 

judge denied this motion because defendants did not show the prior rulings were 

palpably incorrect or that the court failed to consider or appreciate the 

significance of defendants' arguments or the evidence they presented in the prior 

proceeding.

Judge DeLuca then conducted a trial on the remaining issues in dispute 

and heard testimony from six witnesses, including Berardo and Pjeternikaj. 

Based upon his review of that testimony and the documentary evidence, the 

judge found no evidence that plaintiff ever intended to abandon or surrender its 
10 A-0893-20

right to the twenty-eight parking spaces under the lease. Plaintiff paid the rent 

due on the lease in full and maintained the required insurance. It prepared a 

Tenant Estoppel Certificate, provided defendants with a list of the cars 

authorized to park in the spaces, objected when defendants permitted other 

individuals to use the spaces, and filed a lawsuit to enforce the terms of the lease 

when the dispute could not be resolved.

Finally, Judge DeLuca rejected plaintiff's claim that it was entitled to 

access the garage through the southern entrance. The judge found the lease 

agreement was silent on the question of the appropriate way to enter the garage. 

The judge determined the northern entrance was the main means of ingress for 

the garage and served as a security checkpoint. On the other hand, the southern 

entrance was at the end of a one-lane alley and could only accommodate one car 

at a time. Defendants used the Morningside Avenue entrance almost exclusively 

to move trash containers to the street for collection. Under these circumstances, 

the judge concluded plaintiff could continue to enter the garage only through the 

northern entrance.

On appeal, defendants raise the same contentions Judge DeLuca 

painstakingly considered and resolved in his lengthy written decisions. 

Defendants again assert "the parking lease is invalid and unenforceable" and that 
11 A-0893-20

plaintiff's claim to the parking spaces "is barred by the statute of frauds [and 

the] best evidence rule." Defendants also argue plaintiff "abandoned and 

surrendered the parking spaces" and that the judge did not consider all of the 

evidence it presented on these issues. In its cross-appeal, plaintiff repeats its 

contention that its access to the garage should not be limited to the northern 

entrance. We discern no basis for disturbing Judge DeLuca's rejection of these 

claims.

With regard to Judge DeLuca's April 17, 2020 order, our review of a ruling 

on summary judgment is de novo, applying the same legal standard as the trial 

court, namely, the standard set forth in Rule 4:46-2(c). Conley v. Guerrero, 228 

N.J. 339, 346 (2017). Thus, we consider, as Judge DeLuca did, whether "the 

competent evidential materials presented, when viewed in the light most 

favorable to the non-moving party, are sufficient to permit a rational factfinder 

to resolve the alleged disputed issue in favor of the non-moving party." Town 

of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill v. Guardian Life Ins. 

Co. of Am., 142 N.J. 520, 540 (1995)).

If, as here, there is no genuine issue of material fact, we must then "decide 

whether the trial court correctly interpreted the law." Dickson v. Cmty. Bus 

Lines, 458 N.J. Super. 522, 530 (App. Div. 2019) (citing Prudential Prop. & Cas. 
12 A-0893-20

Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)). We accord no 

deference to the trial judge's conclusions of law and review these issues de novo. 

Nicholas v. Mynster, 213 N.J. 463, 478 (2013). However, this court should 

affirm the judgment if it concludes that the trial court's conclusions of law were 

correct. Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010).

We review Judge DeLuca's June 9, 2020 order denying defendants' motion 

for reconsideration to determine whether the judge abused his discretionary 

authority. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). 

Reconsideration should only be used "for those cases which fall into that narrow 

corridor in which either 1) the [c]ourt has expressed its decision based upon a 

palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either 

did not consider, or failed to appreciate the significance of probative, competent 

evidence . . . .” Id. at 384 (quoting D’Atria v. D’Atria, 242 N.J. Super. 392, 401 

(Ch. Div. 1990)).

Finally, our review of Judge DeLuca's fact-finding following the bench 

trial on the issues of whether plaintiff abandoned or surrendered its right to the 

parking spaces and whether plaintiff could access the garage through the 

southern or Morningside Avenue entrances is limited. Seidman v. Clifton Sav. 

Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general rule is that findings by 
13 A-0893-20

the trial court are binding on appeal when supported by adequate, substantial, 

credible evidence." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 

(1998)). However, we owe no deference to a trial court's interpretation of the 

law, and review issues of law de novo. Mountain Hill, L.L.C. v. Twp. Comm. 

of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008). 

Applying these standards, we conclude that Judge DeLuca's factual 

findings are fully supported by the record and, in light of those findings, his 

legal conclusions are unassailable. We therefore affirm substantially for the 

reasons that the judge expressed in his well-reasoned opinions.

Affirmed.