SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3620-19

LEONARD KESSELMAN,

Plaintiff-Appellant,

v.

SIDNEY KESSELMAN, 

individually and as Trustee of

Kesselman Living Trust, and

TERRI ZIMMERMAN,

individually and as Trustee of 

Kesselman Living Trust,

Defendants-Respondents.

__________________________

Argued November 30, 2021 – Decided March 2, 2022

Before Judges Rothstadt and Natali.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Essex County, Docket No. C000184-18.

Robert J. Donaher argued the cause for appellant 

(Herold Law, PA, attorneys; Robert J. Donaher, of 

counsel and 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NOT FOR PUBLICATION WITHOUT THE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.
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Christine F. Marks argued the cause for respondents 

(Fox Rothschild, LLP, attorneys; Christine F. Marks, of 

counsel and on the brief).

PER CURIAM

In this ongoing intrafamily dispute, plaintiff Leonard Kesselman appeals 

from the Chancery Division's February 10, 2020 order granting summary 

judgment to the late Sidney Kesselman and his daughter, plaintiff's sister, Terri 

Zimmerman, in their individual capacities and as trustees of the Kesselman 

Living Trust (Family Trust). The Chancery judge granted the motion and 

dismissed the complaint based on the doctrines of res judicata and collateral 

estoppel, after the judge concluded plaintiff's claims in this case had been 

disposed of in an earlier New York litigation. Plaintiff also appeals from the 

same judge's May 5, 2020 denial of his motion for reconsideration. 

On appeal, plaintiff argues his claims were not barred by res judicata or 

collateral estoppel, "preclusion" was not applicable under the United States 

Constitution's "Full Faith and Credit" clause, and the New York court's 

determination should not be given "preclusive effect under the doctrine of 

fraudulent concealment." 

We affirm the two orders under appeal, except as to one specific claim 

made by plaintiff in his complaint in this action. We do so because we conclude 
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the New York judgment precludes plaintiff from re-litigating his claims about 

his sister's alleged undue influence and its impact on the validity of 2002 and 

2014 amendments to the Family Trust and about the enforceability of an alleged 

intrafamily agreement. However, it did not preclude plaintiff from pursuing 

claims relating to the validity of a 2015 amendment to the Family Trust, 

including his claims of undue influence regarding that amendment. 

I.

To give context to our decision, we begin with a detailed discussion of the 

origins of the Family Trust and the parties' litigations, all viewed in a light most 

favorable to plaintiff as the party opposing summary judgment.

The Family, the Business, and the Chelsea Building

As already noted, Leonard and Terri1are the only children of the late 

Sidney Kesselman and his late wife Evelyn Kesselman. In the early 1950s, 

Sidney opened a paint and hardware store in New York, known as London Paint. 

In the mid-1960s, Sidney purchased a building on Nineth Avenue in Manhattan 

(the Chelsea building) and began operating London Paint from its premises. 

1

 We refer to the parties by their first names to avoid any confusion caused by 

their common last name. No disrespect is intended. 
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Leonard began working at London Paint as a child and continued to work 

in the business as an adult. In 1983, upon Sidney's retirement and Sidney and 

Evelyn's purchase of a home in Florida, Leonard took control of the business, 

although it was disputed what Leonard paid to acquire the business, if anything. 

It was undisputed, however, that over the years London Paint paid a rent 

that was significantly below the market rate. Between 1983 and 2003, London 

Paint paid rent of $1,000 per month. In 2003, there were two rent increases, one 

to $2,000 per month and a second to $3000 per month.

Leonard claimed a written ten-year lease covered the period from 1984 to 

1994, but the record does not contain any written lease for any period. At most, 

the record contains a letter dated October 13, 1997, three years after the alleged 

written lease ended, addressed from Sidney and Evelyn to Leonard and Terri 

and executed by all four individuals, which stated the following:

This letter will acknowledge the agreement between 

[Sidney], [Evelyn], [Leonard] and [Terri] regarding the 

[Chelsea] building owned by Sidney and Evelyn . . . . 

Should Sidney or Evelyn be in possession of the 

[Chelsea] Building . . . or as an entity owned by the 

survivor at the time of the survivor's demise, it is agreed 

that London Paint Company, Inc. or any other company 

or business occupying the store or any other rental 

space in the Building, will pay the "fair rental value" in 

exchange for occupying such space. The fair rental 

value shall be determined by a licensed real estate agent 
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knowledgeable in rentals for that area of Manhattan. If 

Leonard and Terri cannot agree on a real estate agent, 

each of Leonard and Terri shall select one and if they 

cannot agree on the fair rental value, both real estate 

agents shall select a third licensed real estate agent who 

shall determine the fair rental value. Also, the Building 

shall be managed by both Leonard and Terri. 

According to Leonard, after his father's stroke in 2012, a dispute arose 

between Leonard and Sidney about Leonard's interest in the building and the 

rent to be paid by London Paint. Leonard contended he continued to operate 

London Paint out of the Chelsea building pursuant to a family agreement, and, 

in reliance upon that agreement, he maintained and improved the building to the 

benefit of the entire family, with building profits paid to Sidney and Evelyn. 

Leonard claimed among the alleged terms of the family agreement were: an 

understanding that London Paint could continue as a tenant of the Chelsea 

building, paying an agreed-upon, below-market-rate rent until the deaths of 

Sidney and Evelyn; during which Leonard would be paid $450 per month to 

manage and maintain the property; and, upon the deaths of Sidney and Evelyn, 

the building would be bequeathed in equal shares to Leonard and Terri, at which 

time the siblings would agree upon a fair market rent for the business. 

However, Sidney rejected Leonard's allegations about a family agreement. 

He denied Leonard had any right to continued occupancy of the Chelsea 
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building, and stated Leonard refused to pay an increased rental amount despite 

repeated requests that he do so. He claimed Leonard was "a liar," who over the 

years had "gone to great lengths to try to cheat and manipulate my wife and me 

out of our money for his financial benefit." And, he stated that he retained full 

control over how he would bequeath his estate and that there were no promises 

of a specific inheritance amount or percentage to be given to Leonard. 

Thereafter, the record reflects that in 2015, three years later, Sidney and 

Leonard attempted to negotiate London Paint's rent, with Sidney demanding 

$11,000 per month, which was still well below the market rate. When Leonard 

refused to pay that amount, Sidney commenced summary proceedings in a New 

York action to terminate London Paint's tenancy and change management of the 

building. In response, as more fully discussed infra, Leonard commenced his 

own lawsuit in New York. 

The Trust, and Evelyn and Sidney's Deaths

A week prior to the October 13, 1997 letter discussed above, Sidney and 

Evelyn established the Family Trust. Later, Sidney and Evelyn transferred 

ownership of the Chelsea building to the trust.

The record does not include a copy of the 1997 version of the revocable 

trust, however it contains a copy of the May 21, 2002 amendment (2002 
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Amendment). Under the 2002 Amendment, upon the deaths of Sidney and 

Evelyn, the Chelsea building was to be distributed sixty percent to Terri and 

forty percent to Leonard, as tenants in common. Also, upon the death of either 

spouse and based upon the consent of the surviving trustor, Leonard and Terri 

were to share management responsibilities for the building. Finally, upon the 

deaths of both Sidney and Evelyn, all tenants, including London Paint, would 

be required to pay rent at a minimum of fair market value if they were not 

already doing so.

In 2012, Sidney suffered a stroke at the age of ninety-one. Two years 

later, on November 5, 2014, Sidney and Evelyn amended the trust for a second 

time through a First Restatement of the Family Trust (2014 Amendment). 

Among other things, the 2014 Amendment provided that: Sidney could act 

independently, making decisions and binding the trust without the consent of 

Evelyn; Sidney was named as Evelyn's successor trustee and Terri as Sidney's 

successor trustee; and upon the deaths of Sidney and Evelyn, the Chelsea 

building was to be distributed eighty percent to Terri and twenty percent to 

Leonard, with London Paint's rent being increased to fair market rental value,

Terri would receive Sidney and Evelyn's property in Florida, and any remainder 

of the trust would be shared equally by Leonard and Terri.
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In August 2015, while the Sidney's tenancy action and Leonard's New 

York actions were pending, the trust was amended for a third time (2015 

Amendment), such that Leonard's interest in the building was decreased to zero, 

and Terri's interest was increased to 100 percent. However, no copy of the 2015 

Amendment is included in the record, and Leonard did not learn about the 

amendment until after he filed this action in New Jersey in 2018.

While the New York litigations were pending, in September 2017, Evelyn 

died; and while this action was pending, in 2019, Sidney died.

The New York Litigation

Prior to Sidney and Evelyn's passing, as already noted, in early 2015, they 

filed an action in New York to terminate London Paint's tenancy in the Chelsea 

building and Leonard filed a complaint on his behalf and on behalf of London 

Paint. Leonard named Sidney and Evelyn as defendants in their capacity as 

trustees of the Family Trust, and, along with Terri, individually. 

Leonard's New York complaint asserted causes of action for: (1) specific 

performance of the alleged family agreements; (2) declaratory judgment that the 

alleged family agreements are valid and enforceable; (3) equitable estoppel; (4) 

preliminary and permanent injunction; and (5) breach of contract. Essentially,

Leonard demanded enforcement of alleged family agreements and 
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understandings that, during Sidney's and Evelyn's lifetimes, London Paint would 

be permitted to operate from the Chelsea building at an affordable, below market 

rent and Leonard would be paid $450 per month to manage the building on his 

parents' behalf, and that, upon Sidney and Evelyn's death, Leonard and Terri 

each would receive fifty percent shares of the Chelsea building.

Leonard further alleged Terri instigated Sidney's breaches of the alleged 

family agreements. In particular, he asserted that, after Sidney's stroke in 2012, 

Terri exerted undue influence over Sidney and caused him to: alter the trust 

such that Terri would receive more than fifty percent of Sidney and Evelyn's 

estate upon their deaths; demand that plaintiffs pay unaffordable, market-rate 

rent for occupancy of the Chelsea building; commence eviction proceedings to 

remove plaintiffs from the building; and change the management of the building. 

Finally, Leonard asserted these changes were made without notice to or consent 

from Evelyn, who served as co-trustee of the trust and who had equal authority 

with respect to ownership and control of the building.

All three defendants filed answers and affirmative defenses, denying that

the plaintiffs had a right to the relief sought, with Sidney and Terri represented 

by separate counsel from Evelyn.
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In addition to the complaint, Leonard filed a motion in the New York 

action for a preliminary injunction, to enjoin and restrain any landlord-tenant 

proceedings commenced by Sidney. On July 28, 2015, the New York court 

granted Leonard a preliminary injunction and stayed the summary tenancy 

proceeding. The court did so, because "the issues [were] complex and the parties 

intensely contest[ed] the facts." That is, the litigation involved "heavily 

contested familial issues" and was "not a simple landlord-tenant matter as it 

involve[s] issues of undue influence and mental capacity." To resolve the 

matter, the court determined it "must examine the relationship between Terri and 

her parents in order to assess whether Terri has unduly influenced her parents." 

Afterward, Sidney and Terri filed an unsuccessful appeal from the stay order. 2

In the meantime, in September 2015, Leonard filed a motion for leave to 

file an amended complaint to assert a claim for declaratory judgment that the 

2014 Amendment was invalid and unenforceable due to Sidney and Evelyn's 

lack of mental capacity and Terri's undue influence. Terri and her parents 

opposed the motion and they filed a cross-motion for summary judgment, which 

2

 On April 28, 2016, a New York appellate court upheld the preliminary 

injunction order, but remanded for the court to re-set the amount of the plaintiffs' 

undertaking upon receipt of competent evidence of the fair market rent for the 

commercial space.
11 A-3620-19

Leonard opposed. At that time, no discovery was taken in the New York 

litigation, although Leonard had served discovery requests, but his family did 

not respond.

Despite there being no discovery, Terri and her parents nevertheless 

argued that summary judgment was appropriate because the discovery requests 

were not related to the real estate claims asserted in the complaint, which were 

premised upon the alleged family agreements and were barred by the statute of 

frauds. Rather, the discovery requests related to Leonard's proposed amended 

complaint, that is, "Sidney and Evelyn['s] mental capacity and Terri['s] alleged 

influence over them," and the fact that Leonard was not being bequeathed an 

equal share of his parents' assets upon their death. 

On June 24, 2016, the New York trial court granted the summary judgment 

motion and denied Leonard's motion for leave to amend the complaint. In its 

decision, the court noted the parties did not complete discovery. Nevertheless, 

the court found summary judgment was appropriate because: the alleged family 

agreements were neither valid nor enforceable; London Paint's month-to-month 

tenancy could be terminated by the landlord, the Family Trust; and Leonard did 

not have a vested fifty percent interest in the Chelsea building.
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More specifically, the court found the alleged family agreement was 

unenforceable because it was indefinite, vague, ambiguous, and uncertain as to 

the amount of rent to be charged and constituted "nothing more than an 

unenforceable agreement to agree." Moreover, the alleged oral agreements on 

rent and the distribution of the building upon Sidney and Evelyn's deaths were 

barred by the statute of frauds.

Rejecting Leonard's equitable claim of partial performance, the court 

noted the improvements Leonard made to the building were made in 1973, 

before he acquired London Paint, and in 1989, during the existence of a written 

lease. Therefore, they were not related to an alleged oral agreement, and were 

"as likely explainable" by the benefit London Paint received from the 

improvements. Similarly, Leonard's decision to operate London Paint in the 

Chelsea building was not unequivocally related to an alleged oral agreement that 

Leonard would receive fifty percent of the building upon his parents' demise, as 

it was equally explainable by the below-market rent paid by London Paint and 

the payment Leonard received to manage the building.

The court also considered Leonard's claims of undue influence by Terri, 

and lack of capacity on the part of Sidney and Evelyn and rejected them. The 

court stated:
13 A-3620-19

This case can be resolved by answering one question: 

is there a valid, enforceable agreement between the 

family members as to London Paint's commercial 

tenancy and Leonard's interest in the [Chelsea] 

Building upon his parents' demise? The answer, as the 

record reveals, is no. 

Thus: 

In the absence of an enforceable agreement as to 

London Paint's tenancy, there is no evidence that Terri 

had a motive to unduly influence Sidney and Evelyn to 

change such agreement, and Leonard cannot meet the 

burden of proof he has on this issue. Indeed, under the 

[2014 Amendment], Sidney may act unilaterally on 

behalf of the [Family] Trust in matters affecting Trust 

property, and he did so. The record is devoid of 

evidence that Sidney lacked capacity when, during rent 

negotiations in winter 2015, he demanded an increase 

in London Paint's rent to $11,000 per month, and, upon 

not reaching an agreement, served the [t]hirty-[d]ay 

[n]otice. Leonard's advanced age, ipso facto, does not 

render him incapacitated, and, to this [c]ourt's 

knowledge, there is no authority to support such 

conclusion. 

Moreover, on this record, as a whole and as to the 

precise circumstances surrounding the Trust 

amendments pursuant to which Terri received a greater 

future interest in the Building, there is no evidence from 

which an inference of undue influence reasonably could 

be drawn. Sidney and Evelyn were, and are, well within 

their rights to revoke, partially or completely, any 

bequests to Leonard in the Trust, and to increase Terri's 

future interest in the Building, as they have done. 

People may freely dispose of their property as they see 

fit and disinherit their children for any or no reason. On 

this record, there is no evidence (or even an allegation) 
14 A-3620-19

that Sidney and Evelyn lacked capacity in May of 

2002[,] when they entered into the First Amended 

Trust, reducing Leonard's future interest in the Building 

to [forty percent]. Similarly, the record is devoid of 

evidence substantiating Leonard's claim that Sidney 

and Evelyn lacked capacity in November of 2014 when 

they entered into the [2014 Amendment], further 

reducing Leonard's interest to [twenty percent]. Rather, 

the record shows that Sidney and Evelyn knowingly, 

and of their own free will, amended the Trust in May of 

2002 and again in November of 2014. Contrary to 

Leonard's argument, Sidney's change of mind, in and of 

itself, does not constitute undue influence by Terri. 

Equally unavailing is Leonard's reliance on Evelyn's 

January 29, 2015 affidavit to challenge her capacity in 

mid-November 2014. The affidavit, notarized outside 

of New York State, is inadmissible as it lacks a 

certificate of conformity pursuant to CPLR 2309(c), 

and the submission of such certificate on reply does not 

cure the defect. Additionally, the record demonstrates 

that Evelyn was not removed as Co-Trustee of the Trust 

and that Sidney is authorized to act unilaterally on 

behalf of the Trust to increase London Paint's rent. 

Indeed, by affidavit dated May 14, 2015, Evelyn 

disavowed the contents of her January 29, 2015 

affidavit. 

The Court rejects Leonard's contention that the 

"drastic" change in his future interest in the Building 

and Sidney's demand for increased monthly rent is 

"alarming" and raises the specter of undue influence. 

The record demonstrates that the changes to Leonard's 

interest in the Building have been occurring over time, 

not drastically or all of a sudden. Rather, Leonard's 

insistence that London Paint should pay only $3,000 

per month rent in a market which commands something 

in the order of $17,500 per month rent, at a time when 

his elderly parents claim financial distress, and after he 
15 A-3620-19

enjoyed $2.3 million dollars in rent savings, is 

unavailing. Accordingly, this [c]ourt finds that 

Leonard's claims of undue influence and incapacity are 

without merit as a matter of law, which provides an 

additional ground for dismissal of plaintiffs' specific 

performance, and other, causes of action.

Finally, as for the plaintiffs' motion for leave to amend the complaint, the 

court stated: 

Plaintiff's motion to amend the complaint is denied as 

the original complaint has been dismissed, and the 

causes of action in the proposed amended complaint are 

the same as those pleaded in the original complaint, 

except for the new cause of action respecting the [2014 

Amendment]. On the merits, the new allegations 

relating to the [2014 Amendment] and Terri's undue 

influence are conclusory and without merit, for the 

reasons set forth above. 

Leonard appealed from the grant of summary judgment and the denial of 

the motion for leave to amend the complaint.3 On February 1, 2018, the New 

3

 Leonard argued the trial court erred in making findings of fact regarding 

Sidney and Evelyn's mental capacity and Terri's undue influence because no 

discovery had been taken, and at the risk of future claims about the validity and 

enforceability of the trust amendments being barred under the doctrines of res 

judicata and collateral estoppel. Terri and her parents responded that the issues 

of undue influence and incapacity were irrelevant to whether the complaint was 

properly dismissed because the alleged family agreements and rental agreements 

were neither valid nor enforceable. Alternatively, they argued Leonard's 

allegations of lack of capacity, and undue influence were unfounded, based upon 

conjecture, and contradicted by evidence in the record. They also contended 
16 A-3620-19

York appellate court affirmed. London Paint & Wallpaper Co. v. Kesselman, 

70 N.Y.S.3d 476 (App. Div. 2018). In its opinion, that court concluded, in 

pertinent part: Terri and her parents "demonstrated as a matter of law that 

[Leonard] cannot prove that . . . Terri . . . unduly influenced her parents to 

revoke, breach, or otherwise fail to perform under these unenforceable [family] 

agreements." Id. at 477. With respect to the denial of Leonard's proposed 

amendment to the complaint, the court stated his "proposed amendment to the 

complaint, which alleges Terri's undue influence with respect to the 2014 

[Amendment], is 'palpably insufficient' given [his] inability to allege facts 

showing her actual exercise of such influence." Ibid. (citations omitted).

The New Jersey Litigation

After the New York appeal, on October 18, 2018, Leonard filed this 

action. As noted, by that time, Evelyn had been gone for about a year. 

In this action, Leonard reiterated and expounded upon the claims he made 

in the New York litigation about the alleged family agreements and Terri's undue 

influence upon Sidney after his stroke in 2012. Also, he made new allegations, 

including that Sidney promised to transfer to Leonard a majority, sixty percent 

Leonard's motion to amend the complaint was properly denied as moot upon the 

granting of summary judgment and because the proposed cause of action was 

without merit.
17 A-3620-19

interest in the Chelsea building, upon the deaths of his parents, in exchange for 

Leonard's lifelong personal and professional commitment to continue operating 

London Paint out of the Chelsea building. Additionally, while his undue 

influence allegations focused primarily upon the 2014 Amendment, he also 

asserted the "purported" 2002 Amendment was "fraudulent or fictitious or 

otherwise legally insufficient and invalid," and "manufactured, created or 

undertaken without Evelyn's knowledge or informed consent, and . . . the 

product of Terri's fraudulent actions or undue influence." 

Based upon his factual allegations, Leonard asserted causes of action for: 

(1) declaratory judgment affirming his right to fifty percent of the trust proceeds 

in accordance with the 1997 version of the trust; (2) reformation or rescission of 

the trust such that he receives fifty percent of the trust proceeds; (3) undue 

influence on the part of Terri over Sidney and/or Evelyn, and Sidney over 

Evelyn, rendering the trust amendments null and void; (4) breach of the original 

trust agreement through the nature and effect of the modifications to the original 

trust; (5) equitable fraud; and (6) breach of fiduciary duty.

Sidney and Terri filed an answer, denying liability and asserting defenses, 

including res judicata and collateral estoppel. Also, they moved to quash a 

subpoena Leonard served upon Sidney and Evelyn's New Jersey estate counsel.
18 A-3620-19

In July 2019, Sidney and Terri moved for summary judgment, arguing that 

this action was precluded by the judgment in the New York litigation, under the 

doctrines of res judicata and collateral estoppel. Leonard opposed the motion. 

While the motions were pending, Sidney passed away. 

The Chancery judge heard arguments on the motions on October 15, 2019, 

at which time he requested additional documents, including the pleadings and 

briefs from the New York action, and further briefing. After submissions were 

made, he resumed oral argument on February 6, 2020. Four days later, the judge 

issued his order granting summary judgment and dismissing the complaint, 

supported by a comprehensive twenty-nine-page written decision. 

In his decision, the judge applied New York law and held the New Jersey 

litigation was precluded by the judgment in the previous New York litigation, 

wherein both the trial and appellate courts rejected as being without merit and 

an evidential basis Leonard's claims that Terri had exerted undue influence over 

Sidney and Evelyn and that Sidney and Evelyn lacked capacity when they 

amended the trust and in 2015 when Sidney engaged in rent negotiations and 

commenced the eviction proceedings. The judge identified, from numerous 

specific paragraphs in the New York pleadings and the appellate court's opinion,
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multiple assertions made by Leonard in the earlier litigation about Terri's undue 

influence and the 2002 and 2004 Amendments. The judge found:

The New Jersey litigation, including timeframes, 

issues, claims, pleadings and arguments are identical, 

i.e., Evelyn and Sidney's mental capacity and Terri's 

undue influence to the allegations in the New York 

litigation. Moreover, the New York trial and Appellate 

Division determinations are decisive of the present 

action. This court undertook a review of the New York 

Litigation pleadings, motions, brief, and opinions and 

compared them with those in the New Jersey Litigation 

and finds this determination inescapable. 

The judge further found "Leonard had a full and fair opportunity to contest 

the prior determinations," on both the summary judgment motion and the motion 

to amend the pleadings, and the case was dismissed on the merits.

Leonard moved for reconsideration, and the judge heard argument on 

April 24, 2020. By opinion and order dated May 5, 2020, the judge agreed to 

reconsider his prior ruling, but, upon reconsideration, denied Leonard's 

requested relief to vacate the February 10, 2020 order. The judge reiterated his 

reasons for granting summary judgment and rejected Leonard's claim that Terri 

committed a fraud on the New York court by not revealing the 2015 

Amendment. This appeal followed. 

II.

A.
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We review a trial court's grant of summary judgment de novo, "applying 

the same standard as the trial court." State v. Anderson, 248 N.J. 53, 67 (2021) 

(quoting Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511 (2019)). 

"By that standard, summary judgment should be granted 'when "the pleadings,

depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment or order as a

matter of law."'" Woytas, 237 N.J. at 511 (quoting Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 528-29 (1995)). 

The questions presented in this appeal implicate only a question of law:

whether issue preclusion under res judicata and collateral estoppel were 

applicable to Leonard's complaint. See Walker v. Choudhary, 425 N.J. Super. 

135, 151 (App. Div. 2012). Therefore, our review of the court's rulings on that 

issue here is de novo, giving no deference to the trial court's legal conclusions. 

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

B.

Here, we are asked to determine the preclusive effect of a foreign 

judgment, thereby implicating the Constitution's full faith and credit clause, 

which states that: "Full Faith and Credit shall be given in each State to the . . . 
21 A-3620-19

Judicial Proceedings of every other State. And the Congress may by general 

Laws prescribe the Manner in which such . . . Proceedings shall be proved, and 

the Effect thereof." U.S. Const. art. IV, § 1; see also 28 U.S.C. § 1738 (providing 

that properly authenticated judicial proceedings of any state court "shall have 

the same full faith and credit in every court within the United States . . . as they 

have by law or usage in the courts of such State . . . from which they are taken"). 

"The full faith and credit doctrine is essential to our system of federalism, 

a system comprised of fifty different states, each equal to the other and each 

with its own distinctive judicial system." Simmermon v. Dryvit Sys., Inc., 196 

N.J. 316, 329 (2008). "Because the doctrine recognizes that we are one nation, 

not fifty principalities, respect for the judgments entered by the court of a sister 

state is critical to avoid the type of divisive parochialism that breeds duplicative 

litigation and waste of judicial resources." Id. at 329-30. "Thus, any judgment 

properly executed in a foreign state, which complies with the requirements of 

the due process clause is entitled to full faith and credit in New Jersey." Ewing 

Oil, Inc. v. John T. Burnett, Inc., 441 N.J. Super. 251, 259 (App. Div. 2015); see 

also Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998) ("A final judgment 

in one State, if rendered by a court with adjudicatory authority over the subject 

matter and persons governed by the judgment, qualifies for recognition 
22 A-3620-19

throughout the land."); Kremer v. Chem. Constr. Corp., 456 U.S. 461, 480-83 

(1982) (recognizing that the due process condition requires only minimal due 

process be provided and that full faith and credit is not required when there has 

been a denial of due process in the foreign state's proceedings). Where due 

process considerations are not challenged, we may not deny preclusive effect to 

a foreign judgment simply because we believe the foreign court erred in its 

rulings. See Velasquez v. Franz, 123 N.J. 498, 511-12 (1991). However, a 

foreign judgment procured by fraud or misrepresentation is not entitled to 

preclusive effect. Simmermon, 196 N.J. at 331. 

As to defenses raised in a foreign action, the full faith and credit clause 

requires we give the New York judgment the same respect it would receive in a 

New York court. 28 U.S.C. § 1738; Durfee v. Duke, 375 U.S. 106, 109 (1963); 

Simmermon, 196 N.J. at 330. We must apply New York's law on res judicata 

and collateral estoppel because "the binding effect of a judgment is determined 

by the law of the jurisdiction that rendered it." Watkins v. Resorts Int'l Hotel & 

Casino, Inc., 124 N.J. 398, 411 (1991); Restatement (Second) of Conflict of 

Laws § 95 (Am. Law Inst. 1971). 

That being said, the full faith and credit clause is less exacting with respect 

to laws than it is with respect to judgments. Baker, 522 U.S. at 232. Thus, the 
23 A-3620-19

full faith and credit clause does not govern a choice of law analysis or require a 

state court to apply the statutes or common law of another state where to do so 

would violate the public policy of the forum state. Id. at 232-33; e.g., 

McDonnell v. Illinois, 163 N.J. 298, 299 (2000).

New York and New Jersey law are consistent on the issues of res judicata 

and collateral estoppel. Therefore, the result would be the same regardless of 

which law is applied. Under both states' law, the doctrine of res judicata bars 

future actions between the same parties on the same cause of action. Simmons 

v. Trans Express, Inc., 37 N.Y.3d 107, 111 (2021); Velasquez, 123 N.J. at 505. 

The party seeking to apply the doctrine bears the burden of proof. Watts v. 

Swiss Bank Corp., 27 N.Y.2d 270, 275 (1970); Sweeney v. Sweeney, 405 N.J. 

Super. 586, 598 (App. Div. 2009).

Both states follow a transactional analysis approach in deciding res 

judicata issues. Simmons, 37 N.Y.3d at 111; see Wadeer v. N.J. Mfrs. Ins. Co., 

220 N.J. 591, 606 (2015). Under this approach, "once a claim is brought to a 

final conclusion, all other claims arising out of the same transaction or series of 

transactions are barred, even if based upon different theories or if seeking a 

different remedy." Simmons, 37 N.Y.3d at 311 (emphasis omitted) (quoting 

O'Brien v. Syracuse, 54 N.Y.2d 353, 357 (1981)); Wadeer, 220 N.J. at 606 
24 A-3620-19

(2015). However, the New York Court of Appeals has cautioned that the 

doctrine of res judicata should not be applied so rigidly that it works an injustice 

and deprives a litigant of their day in court. Simmons, 37 N.Y.3d at 111-12.

Similarly, both states' application of the doctrine of collateral estoppel is 

narrower than res judicata. It prevents a party from relitigating any issue clearly 

raised in a prior action and decided against that party, whether the tribunals or 

the causes of action are the same. Simmons, 37 N.Y.3d at 112; Winters v. N. 

Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85 (2012). Like res judicata, it is 

grounded in concepts of fairness and should not be rigidly applied if to do so 

would work an injustice. Simmons, 37 N.Y.3d at 112; Allen v. V & A Bros., 

Inc., 208 N.J. 114, 138 (2011). 

The essential ingredients necessary to apply the doctrine include: (1) the 

issue in the second action is identical to an issue raised in the first action; (2) 

the issue was necessarily decided and material in the first action; and (3) the 

party to be precluded from relitigating the issue must have had a full and fair 

opportunity to litigate the issue in the first action. Simmons, 37 N.Y.3d at 112; 

Winters, 212 N.J. at 85; Restatement (Second) of Judgments § 27 (Am. Law 

Inst. 1982). 
25 A-3620-19

Under New York law, the proponent of collateral estoppel bears the 

burden of demonstrating that the issues in the two proceedings are identical, and 

the issues were decided by the prior tribunal, whereas the opponent bears the 

burden of establishing the absence of a full and fair opportunity to litigate the 

issue in the prior action or proceeding. Parker v. Blauvelt Volunteer Fire Co., 

93 N.Y.2d 343, 349 (1999).

A determination whether the first action or proceeding 

genuinely provided a full and fair opportunity requires 

consideration of "the 'realities of the [prior] litigation', 

including the context and other circumstances 

which . . . may have had the practical effect of 

discouraging or deterring a party from fully litigating 

the determination which is now asserted against him." 

Among the specific factors to be considered are the 

nature of the forum and the importance of the claim in 

the prior litigation, the incentive and initiative to 

litigate and the actual extent of litigation, the 

competence and expertise of counsel, the availability of 

new evidence, the differences in the applicable law and 

the foreseeability of future litigation. 

[Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 501 (1984)

(alteration and omission in original) (quoting New 

York v. Plevy, 52 N.Y.2d 58, 65 (1980)).]

New Jersey law is similar. For the doctrine of collateral estoppel to apply, 

the party asserting the doctrine must show: 

(1) the issue to be precluded is identical to the issue 

decided in the prior proceeding; (2) the issue was 

actually litigated in the prior proceeding; (3) the court 
26 A-3620-19

in the prior proceeding issued a final judgment on the 

merits; (4) the determination of the issue was essential 

to the prior judgment; and (5) the party against whom 

the doctrine is asserted was a party to or in privity with 

a party to the earlier proceeding. 

[Winters, 212 N.J. at 85 (quoting Olivieri v. Y.M.F. 

Carpet, Inc., 186 N.J. 511, 521 (2006)).]

Finally, under both New York and New Jersey law, rulings on both 

summary judgment motions and motions for leave to amend can have a 

preclusive effect on future litigation. See, e.g., Syncora Guar. Inc. v J.P. Morgan 

Sec., LLC, 970 N.Y.S.2d 526, 529-30 (App. Div. 2013); Velasquez, 123 N.J. at 

506-08. 

C.

Applying the doctrines of res judicata and collateral estoppel to the 

present case, the record reflects that in the New York litigation, Leonard sought 

enforcement of the alleged family agreement, which, according to Leonard,

included Sidney and Evelyn's promise to bequest the Chelsea building equally 

to Leonard and Terri along with London Paint's tenancy in the Chelsea building.

Leonard refers to the Family Trust, but not any amendments to it, although he 

alluded to rumored changes to "Sidney's estate plan." 

Nevertheless, the validity of the 2014 Amendment was addressed in the 

New York litigation because, upon learning about the amendment, Leonard 
27 A-3620-19

moved for leave to amend the complaint to include a cause of action for 

declaratory judgment, seeking a declaration that the 2014 Amendment was void 

and unenforceable due to Sidney and Evelyn's lack of mental capacity and due 

to the undue influence exerted by Terri over them.

The validity of the 2002 and 2014 Amendments were addressed in the 

New York litigation also because Terri and her parents raised those amendments 

in opposition to Leonard's motion for leave to amend the complaint, and in 

support of their motion for summary judgment. Specifically, they relied, in part, 

on the two amendments to oppose Leonard's claim of an enforceable family 

agreement relating to the Chelsea building. They also used the 2002 

Amendment to oppose Leonard's allegations that, after Sidney's stroke in 2012,

Terri unduly influenced Sidney to breach the family agreement and that Sidney 

lacked the authority to terminate London Paint's tenancy because he did not have 

the approval of Evelyn, who had equal control over the building.

In granting summary judgment, the New York court declared the alleged 

family agreement and rental agreement were invalid and unenforceable under 

the statute of frauds, and rejected Leonard's claim of partial performance . In so 

doing, the court found no motive on Terri's part to unduly influence Sidney and 

Evelyn with respect to the alleged family and rental agreements because those 
28 A-3620-19

agreements were unenforceable. The court also noted that, under the 2014 

Amendment, Sidney had authority to act unilaterally on behalf of the trust. And, 

the court found no evidence in the record that Sidney lacked capacity when he 

demanded an increase in London Paint's rent or that Sidney and Evelyn lacked 

capacity or were unduly influenced by Terri in connection with the 2002 and 

2014 Amendments.

In denying Leonard's motion for leave to amend the complaint, the court 

noted the original complaint had been dismissed and, "[o]n the merits, the new 

allegations relating to the [2014 Amendment] and Terri's undue influence are 

conclusory and without merit" for the reasons stated in connection with the 

ruling on summary judgment.

Leonard appealed from that judgment, and the New York appellate court 

affirmed both the grant of summary judgment and the denial of the motion for 

leave to amend. The court found the plaintiffs could not prove that Terri unduly 

influenced Sidney and Evelyn in connection with the unenforceable family 

agreements, and no evidence to support Leonard's proposed claim that Terri 

unduly influenced Sidney and Evelyn in connection with the 2014 Amendment. 

London Paint, 70 N.Y.S.3d at 477.
29 A-3620-19

On this record, the doctrines of res judicata and collateral estoppel 

precluded Leonard's New Jersey claims to void the 2002 Amendment and the 

2014 Amendment. The New York and New Jersey litigations involved an 

identity of parties, as well as an identity of claims, issues, and relief sought. In 

addition, the New York litigation resulted in a final judgment in which the 

courts, as matter of necessity to resolve the summary judgment motion and the 

motion for leave to amend the complaint, determined the merits of those claims 

and issues. 

Even if the New York courts erred in their rulings,4those errors do not 

warrant the denial of res judicata effect to the New York judgment. Simmons, 

37 N.Y.3d at 111-12. Leonard chose to pursue his claims in New York, and he 

framed the issues to be resolved by the court, including his parents' promise to 

bequeath a fifty percent interest in the Chelsea building to him, their alleged 

mental incapacity, and Terri's alleged undue influence. Moreover, the New 

York court had jurisdiction over the parties and the claims pursued, which 

4

 Given the fact sensitive inquiries relating to Sidney and Evelyn's mental 

capacities and Terri's alleged undue influence over her parents, and the lack of 

discovery on those issues, Leonard contends summary judgment in New York 

was not warranted. However, a subsequent suit in New Jersey is not a proper 

means for correcting an allegedly erroneous ruling from a foreign jurisdiction. 

Velasquez, 123 N.J. at 511-12. 
30 A-3620-19

related to a New York

5 property and Leonard received due process. He argued 

about the lack of discovery in both the trial and appellate courts and, on appeal 

in New York, he contended that affirmance of the trial court's judgment could 

result in future litigation about the trust amendments being barred under the 

doctrines of res judicata and collateral estoppel. The courts thoroughly heard 

and considered his arguments and ultimately rejected them, ruling against him 

on the merits. 

That being said, it is undisputed the New York judgment did not address 

anything related to the Family Trust's 2015 Amendment. The 2015 Amendment 

was never raised by any party in the context of the New York litigation, and its 

validity was not ruled upon by the New York courts. At most, in the context of 

Leonard's leasehold claims, the New York trial court found no evidence that 

Sidney lacked capacity when he negotiated London Paint's rent in the winter of 

2015, which did not result in an agreement.

5 Leonard argues that, after the leasehold claims were dismissed, New York no 

longer had jurisdiction over claims relating to the validity of trust amendments

because New York did not have "inherent jurisdiction" over such claims as New 

Jersey had a greater interest in the trust dispute than New York where all parties 

maintained residences in New Jersey, and the Family Trust was allegedly 

prepared by counsel in New Jersey.
31 A-3620-19

The New York judgment therefore cannot bar Leonard from pursuing his 

New Jersey claims to void the 2015 Amendment. The New York court's rulings 

as to the 2002 and 2014 Amendments are not dispositive of Sidney's mental 

capacity to amend the trust in 2015, or whether Terri exercised undue influence 

over Sidney with respect to the 2015 Amendment, because the amendment 

occurred at a different time and in a different context. See, e.g., In re Swertlow, 

168 N.J. Super. 89, 93-95 (App. Div. 1979) (noting New Jersey hearing officer 

had authority to inquire into whether decedent's mental condition had improved 

since New York conservatorship proceeding, such that decedent was mentally 

competent to change his domicile).

The record reflects that in the New York litigation Sidney, Evelyn, and 

Terri were not forthcoming with information about the trust: they did not 

respond to Leonard's discovery requests; they made Leonard aware of the 2002 

and 2014 trust amendments only in the context of their submission on motions; 

and they did not disclose any information about the 2015 Amendment. The 

record also reflects that Leonard first learned of the 2015 Amendment after he 

filed his October 2018 complaint in New Jersey. Therefore, Leonard could not 

have contested the validity of the 2015 Amendment in the context of the New 

York litigation, which ended with the appellate ruling on February 1, 2018; the 
32 A-3620-19

New York courts could not have ruled on that issue; and it would be unjust to 

deny Leonard an opportunity to contest that amendment in the present litigation. 

The doctrines of res judicata and collateral estoppel should not be applied to 

achieve such an unjust result.

Finally, we consider Leonard's claim that Sidney, Evelyn, and Terri's

conduct in the New York litigation gave rise to their committing a fraud on the 

New York court based upon their failure to disclose the 2015 Amendment in the 

New York proceedings, which Leonard argues now that his disinheritance is 

material. To demonstrate fraud on court, "the nonoffending party must establish 

by clear and convincing evidence that the offending 'party acted knowingly in 

an attempt to hinder the factfinder's fair adjudication of case and his adversary's 

defense of the action'" and that the conduct concerns issues "central" to the case. 

CDR Créances S.A.S. v. Cohen, 23 N.Y.3d 307, 318, 320 (2014) (quoting 

McMunn v. Mem'l Sloan-Kettering Cancer Ctr., 191 F. Supp. 2d 440, 445 

(S.D.N.Y. 2002)); Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 

237, 251 (App. Div. 2007) (stating that fraud on court occurs when it is proven 

by clear and convincing evidence that party intentionally interfered with judicial 

system's ability to impartially adjudicate case by improperly influencing trier or
33 A-3620-19

unfairly hampering opponent's presentation of claim or defense). We find no 

clear and convincing evidence of same in the record.

Under these circumstances, we affirm the order and judgments under 

appeal here, except regarding Leonard's claims relating to the 2015 Amendment, 

including allegations that Terri's undue influence, if any, caused Sidney to 

modify the Family Trust to Leonard's detriment. All other issues were correctly 

determined to be precluded by the New York judgment. 

Affirmed in part; reversed and remanded in part for further proceedings 

consistent with this opinion. We do not retain jurisdiction.