SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-0732-20

 A-0760-20

1530 OWNERS CORP., GARNIK

AZARNIA, JO ANN CROSS, and 

MOE MARSHALL,

Plaintiffs-Appellants,

v.

AMERICANA ASSOCIATES,

THE OLNICK ORGANIZATION,

INC., ROBERT OLNICK 

ASSOCIATES OF NEW JERSEY,

d/b/a ROBERT OLNICK 

CORPORATION,

Defendants-Respondents.

______________________________

1530 OWNERS CORP., GARNIK

AZARNIA, JO ANN CROSS, and 

MOE MARSHALL,

Plaintiffs-Respondents,

v.

AMERICANA ASSOCIATES,

THE OLNICK ORGANIZATION,

NOT FOR PUBLICATION WITHOUT THE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-0732-20

INC., ROBERT OLNICK 

ASSOCIATES OF NEW JERSEY,

d/b/a ROBERT OLNICK 

CORPORATION,

Defendants-Appellants.

______________________________

Argued September 23, 2021 – Decided October 14, 2021

Before Judges Alvarez and Mawla.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Bergen County, Docket Nos. 

C-000181-19 and C-000281-19.

John Randy Sawyer argued the cause for appellants in 

A-0732-20 and respondents in A-0760-20 (Stark & 

Stark, PC, attorneys; John Randy Sawyer, of counsel 

and on the briefs).

Michael B. Kramer (Michael B. Kramer & Associates) 

of the New York bar, admitted pro hac vice, argued the 

cause for respondents in A-0732-20 and appellants in 

A-0760-20 (Michael B. Kramer and Richard A. 

Medina, attorneys; Michael B. Kramer, of counsel and 

on the briefs; Richard A. Medina, on the briefs).

PER CURIAM

In A-0732-20, plaintiffs 1530 Owners Corp. (the corporation), Garnik 

Azarnia, Jo Ann Cross, and Moe Marshall appeal from an August 28, 2020 order 

dismissing their complaint and granting summary judgment in favor of 

defendants Americana Associates (Americana), The Olnick Organization, Inc. 
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A-0732-20

(Olnick), and Robert Olnick Associates of New Jersey (d/b/a/ Robert Olnick 

Corporation) (Olnick Associates). In A-0760-20, defendants challenge a 

November 13, 2020 order denying their request for counsel fees. We affirm in 

both matters. 

Plaintiffs represent owners of units and shareholders of a cooperative in 

The Colony, an apartment building in Fort Lee. On July 25, 1985, Americana 

conveyed the building and corresponding land to the corporation. Americana 

formed the corporation, which owns and manages the building. It also created 

an offering plan, which outlined conversion of the property to a cooperative and 

contained by-laws for governance of the cooperative. According to the plan,

Americana as the sponsor-seller would sell apartments with corresponding 

shares in the corporation to tenants residing in the building. Olnick operates as 

Americana's management, sales, and leasing agent. Olnick Associates is the 

selling agent. 

Pursuant to the plan, tenants were entitled to purchase the shares allocated 

to their apartments, which conferred certain rights and benefits on the owner. 

The plan provided as follows: 

The [u]nsold [s]hares shall retain their character as 

such, regardless of subsequent transfer, until they are 

purchased and the apartment to which the same relate 

is occupied by a purchaser for bona-fide occupancy for 
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A-0732-20

himself or a member of his family or the holder of 

[u]nsold [s]hares (or a member of his family) becomes 

a bona-fide occupant of the [a]partment. 

Under a section titled "Shares Unsold Prior to Closing", the plan stated:

At closing, title to [u]nsold [s]hares shall remain 

in the name of [Americana] or shall be transferred to 

one or more financially responsible natural persons 

procured by [Americana]. [Americana] represents and 

agrees to sell or transfer to one or more financially 

responsible natural persons, by no later than the third 

anniversary of the [c]losing [d]ate, all then remaining 

[u]nsold [s]hares held by it. 

The persons owning the [u]nsold [s]hares, 

whether they be [Americana] or persons produced by 

[Americana], are herein collectively called "holders of 

[u]nsold [s]hares" or "purchasers of [u]nsold [s]hares."

. . . .

Each holder of a block of [u]nsold [s]hares shall 

enter into a [p]roprietary [l]ease[1]covering the [u]nsold 

[a]partment to which such block of [u]nsold [s]hares is 

allocated. In addition, except for [Americana], all other 

holders of [u]nsold [s]hares will represent in writing to 

. . . [the corporation] at closing that they are purchasing 

the same for their own account (beneficial and of 

record) and not as nominee of [Americana] or any 

corporation, joint venture, partnership, trust or estate. 

. . . The [u]nsold [s]hares include shares subscribed to, 

but not fully paid, at closing.

. . . . 

1 The proprietary lease defined the rights and obligations of each shareholder in 

their apartment and to the cooperative. 
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A-0732-20

Each holder of [u]nsold [s]hares shall have the 

right, freely and without charge, to sublet his [u]nsold 

[a]partments to such person and on such terms and 

conditions as he deems desirable and shall also have the 

right, freely and without charge, to sell such [u]nsold 

[s]hares and transfer the appurtenant [p]roprietary 

[l]ease to any individual third party, provided the 

consent only of the then managing agent of the 

[b]uilding is first obtained with respect to said 

subletting or sale and transfer, which consent shall not 

be unreasonably withheld and must be given in the case 

of a sublease or sale to a financially responsible 

individual. The consent of . . . [the corporation] or its 

shareholders shall not be required with respect to any 

such subletting, sale or transfer. . . . At closing, . . . [the 

corporation] will enter into an agreement with each 

holder of [u]nsold [s]hares confirming the foregoing 

rights and benefits.

The plan also contained the following provisions:

Subletting Apartment and Sale of Shares

b) Neither the subletting of the [a]partment nor the 

assignment of this [l]ease, by the [l]essee who is the 

holder of the block of [u]nsold [s]hares allocated 

thereto, shall require the consents of the [d]irectors or 

[s]hareholders . . . .

Change in Form of Lease

c) Without the consent of the [l]essee, no change in 

the form, terms or conditions of this [p]roprietary 

[l]ease . . . shall (1) affect the rights of the [l]essee who 

is the holder of the [u]nsold [s]hares accompanying this 

[l]ease to sublet the [a]partment or to assign this [l]ease, 

. . . or (2) eliminate or modify any rights, privileges or 

obligations of such [l]essee.
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A-0732-20

When plaintiffs commenced this litigation in October 2019, fifty-two out 

of 481 apartments, or 25,475 shares, were held by Americana and remained 

unsold. Plaintiffs filed a Chancery Division complaint alleging the following 

causes of action: breach of contract; breach of the implied covenant of good 

faith and fair dealing; breach of implied promise; fraud; negligent 

misrepresentation; violation of the New Jersey Consumer Fraud Act, N.J.S.A. 

56:8-2; and continuing nuisance. 

Plaintiffs alleged "[t]he [u]nsold [s]hares were never intended to be held 

by Americana in perpetuity" and Americana "expressly represented and 

promised" to sell or transfer the shares "no later than the third anniversary of the 

[c]losing [d]ate." They also contended "[i]t was always contemplated, and 

represented to . . . Azarnia, Cross, and Marshall, and the other individual 

shareholders of [T]he Colony cooperative, that Americana would sell its shares 

to individual shareholders for bona fide occupancy, and would not . . . hold on 

to the [u]nsold [s]hares forever." 

Plaintiffs claimed Americana and Olnick rejected offers to purchase the 

unsold apartments and instead sublet them "rather than market them for sale 

. . . as . . . represented . . . in the . . . [p]lan." They asserted the non-owneroccupied apartments caused the corporation to sustain "increased wear and tear 
7

A-0732-20

to its building." Plaintiffs alleged defendants refused to provide copies of the 

subleases and the names and photo identification for the tenants residing in the 

unsold apartments, which created a safety risk because the corporation could not

monitor "violation of [the building's] [a]rticles of [i]ncorporation and [h]ouse 

[r]ules and [r]egulations." They contended this hampered "management and 

staff [in] assist[ing] first responders who are called to the building, or to identify 

residents who would require assistance in an emergency evacuation of the 

building." Plaintiffs also alleged the New Jersey Department of Community 

Affairs (DCA) inspected and "found multiple violations in the [u]nits owned by 

the defendants." They claimed defendants caused the corporation to "expend 

additional resources, such as administrative time and legal fees, to address these 

and other issues with the defendants." 

The complaint sought the following relief:

(a) Declaring that the defendants' actions constitute an 

ongoing nuisance against the plaintiffs; 

(b) Declaring that the [u]nsold [s]hares are no longer 

entitled to the "special rights" set forth in the [o]ffering 

[p]lan, and shall be subject to the same restrictions as 

are all issued shares of stock in the [c]orporation; 

(c) Compelling the sale of all [u]nsold [s]hares within 

a period of time to be designated by the [c]ourt; 
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A-0732-20

(d) Prohibiting the defendants from entering into any 

new sub-leases for "[u]nsold [a]partments" once 

vacated by the current sub-tenants; 

(e) Requiring the defendants to provide . . . [the 

corporation], on an annual basis, with copies of all subleases for occupied "[u]nsold [a]partments," as well as 

the full names of all tenants, and photographs of the 

adult tenants, and to update this information as [u]nsold 

[a]partments are vacated; . . . 

(f) Awarding compensatory damages; [and]

(g) Awarding pre-judgment interest, post-judgment 

interest, costs of suit and reasonable attorney's 

fees; . . .

Defendants filed a motion to dismiss the complaint for failure to state a 

claim, "and to the extent necessary converting the motion to a motion for 

summary judgment pursuant to R[ule] 4:6-2(e)" and sought counsel fees and 

costs. They argued the claims were barred by the statute of limitations. 

Furthermore, they contended the plan, by-laws, and proprietary lease did not 

impose an obligation on them to sell the unsold shares and did not bar them from 

subletting. Defendants asserted plaintiffs failed "to allege how . . . [plaintiffs] 

have been damaged in any way by Americana's alleged breaches" because 

Americana owned a minority of the shares, had no representation on the 

corporation's board, and did not control the corporation, which was "fully viable 

and functioning." 
9

A-0732-20

Plaintiffs' opposition to the motion consisted of a three-page certification 

from their counsel2attaching an unpublished Chancery Division case they

argued established defendants could not hold the unsold shares in perpetuity.

Plaintiffs did not respond to defendants' argument the complaint lacked evidence 

of damaging conduct, except that defense counsel certified that claims against 

the Olnick defendants should not be dismissed stating:

While the full scope and precise details of each of the 

. . . defendants' respective involvement in the 

marketing and sale of [u]nsold [s]hares and rentals of 

apartments at [the building] will be more fully 

established in discovery, there is ample evidence that 

the Olnicks play a significant role in these operations, 

and the claims against them should not be dismissed.

Following oral argument, the motion judge issued a written opinion, in 

which he primarily concluded plaintiffs' claims were barred by the statute of 

limitations. He found as follows:

Here, unlike cases that require a Lopez[3] hearing, the 

date in which [p]laintiffs' claims accrued are clear[ly]

and expressly stated in the governing documents, and 

is, in fact, the date advanced by [p]laintiffs in the 

[c]omplaint. There is no difficulty in discerning 

[p]laintiffs' claims in this action. It is clear from the 

. . . [p]lan that the date [p]laintiffs' claims accrued was 

three years after the [c]losing [d]ate. As noted above, 

2 Plaintiffs had different counsel in the trial court.

3 Lopez v. Swyer, 62 N.J. 267, 275 (1973).
10 A-0732-20

the . . . [p]lan, in reference to the amount of time . . . 

Americana had to transfer the [u]nsold [s]hares, states 

the following: 

[Americana] represents and agrees to sell 

or transfer to one or more financially 

responsible natural persons, by no later 

than the third anniversary of the [c]losing 

[d]ate, all then remaining [u]nsold [s]hares 

held by it. . . .

Based on this clear language . . . , to the extent that 

[p]laintiffs believed they had a claim against . . . 

Americana for failing to transfer all [u]nsold [s]hares 

within three years of the [c]losing [d]ate, there is no 

question that these claims would have arose on July 25, 

1988. Thus, [p]laintiffs are not entitled to discovery to 

discern this unambiguous accrual date of their claims. 

To the extent that [p]laintiffs were deterred from 

bringing claims against [d]efendants because of . . . 

Americana's alleged ongoing contractual breaches, . . . 

the [c]ourt does not find any merit in this additional 

argument for tolling the statute of limitations. . . . 

Americana possesses a mere 8.57% of the 

[c]orporation's shares. The [c]ourt is unable to see how 

an entity with less than [nine percent] of an ownership 

stake in a corporation could exert the necessary 

influence on a corporation's board to not bring claims 

that they felt were warranted. Here, there was no such 

influence or continuing breach that impacted the 

[c]orporation in such a way as to not bring their claims 

in a timely manner. 

Ultimately, this [c]ourt would not need to decide 

whether the six-year or twenty-year statute of 

limitations applies, because regardless of which 
11 A-0732-20

controls, the timeframe to bring these claims has 

expired. 

Notwithstanding the statute of limitations bar, the judge rejected plaintiffs' 

argument Americana was required to sell all its shares. Declining to follow the 

unpublished case plaintiffs provided, the motion judge cited 511 W. 232nd 

Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144 (N.Y. 2002). He noted "the 

New York Court of Appeals found that . . . once viability for a cooperative is 

reached, then there is no longer a duty to sell the unsold shares still held by the 

sponsor." He concluded 

it is clear that . . . Americana's actions, or inactions, 

have left the . . . cooperative viable. First, . . . 

Americana only maintains 8.57% of the shares and 

10.81% of the apartment units. Second, it was 

ultimately discovered by the tenant-owners in Jennifer 

Realty that the sponsor had rejected offers to purchase 

unsold shares/unsold apartments; no such allegations 

have been made here. 

In addition, [p]laintiffs have failed to plead any 

facts that would demonstrate not only that the 

[cooperative] is less-than-viable as a cooperative, but 

also that there is any frustration in shareholders' ability 

to resell their units or to obtain favorable financing, or 

that the [u]nsold [s]hares have caused damage or wear 

and tear to the [b]uilding causing an increase in 

maintenance payments. There is simply nothing here 

convincing the [c]ourt that the [u]nsold [s]hares have:

(1) created an unviable existence for this cooperative; 

(2) caused an untenable situation for the unit holders 

regarding the selling, marketing, or financing of their 
12 A-0732-20

apartment ownership; or (3) induced additional damage 

to the building with increased maintenance costs

The judge found the plan, the proprietary lease, and the by-laws did not 

impose a

deadline for . . . Americana to have sold or transferred 

their shares to individuals for occupancy.

. . . . 

. . . Rather, the only obligation on . . . Americana was 

to transfer or sell its [u]nsold [s]hares to natural 

persons. 

. . . .

. . . [T]hese documents emanate an intention of the 

parties to create a clear status of [u]nsold [s]hares, with 

all their rights and obligations, and an intention to dive 

deeply into the characteristics of these units and how 

they operate, all the while expressly utilizing the key 

"for occupancy" language when describing the 

characteristics of the [u]nsold [s]hares, but not for the 

obligations of the sponsor. Thus, the governing 

documents create a partnership in which the sponsor 

retains the [u]nsold [s]hares, must transfer them to 

natural persons, but is not obligated to sell them to 

purchasers for occupancy within any set timeframe. 

The August 2020 order also denied defendants' request for counsel fees. 

Defendants moved for reconsideration of the counsel fee issue citing the 

proprietary lease, which reads as follows:
13 A-0732-20

If the [l]essee shall at any time be in default hereunder 

and the [l]essor shall incur any expense (whether paid 

or not) in performing acts which the [l]essee is required 

to perform, or in instituting any action or proceeding 

based on such default, or defending, or asserting a 

counterclaim in, any action or proceeding brought by 

the [l]essee, the expense thereof to the [l]essor, 

including reasonable attorney's lees and disbursements 

shall be paid by the [l]essee to the [l]essor, on demand, 

as additional rent.

Pursuant to this provision, defendants argued counsel fees were compensable 

under the Tenant Protection Act, N.J.S.A. 2A:18-61.66. 

The judge denied the request for counsel fees. He concluded: "This was, 

in essence, a corporate action by the . . . [corporation] against the entities . . . 

that initially did the conversion . . . , not some specific tenant . . . that . . . 

[N.J.S.A. 2A:18-61.66] . . . [seeks] to protect." 

A-0732-20

We review a grant of summary judgment under the same standard as the 

motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must 

determine whether there are any genuine issues of material fact when the 

evidence is viewed in the light most favorable to the non-moving party. Id. at 

38, 41. A genuine factual issue exists "if, considering the burden of persuasion 

at trial, the evidence submitted by the parties on the motion, together with all 

legitimate inferences therefrom favoring the non-moving party, would require 
14 A-0732-20

submission of the issue to the trier of fact." R. 4:46-2(c). "[T]he legal 

conclusions undergirding the summary judgment motion itself [are reviewed] on 

a plenary de novo basis." Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 

N.J. 369, 385 (2010). 

A motion for summary judgment will not be defeated by bare conclusions 

lacking factual support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 

(App. Div. 2011), self-serving statements unsupported by legally competent 

evidence, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or 

disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J. 

Court Rules, cmt. 2.1 on R. 4:46-2 (2022). Rather, "it is evidence that must be 

relied upon to establish a genuine issue of fact. 'Competent opposition requires 

"competent evidential material" beyond mere "speculation" and "fanciful 

arguments."'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) 

(emphasis omitted) (quoting Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 

415, 425-26 (App. Div. 2009)). "The practical effect of this rule is that neither 

the motion court nor an appellate court can ignore the elements of the cause of 

action or the evidential standard governing the cause of action." Bhagat v. 

Bhagat, 217 N.J. 22, 38 (2014).
15 A-0732-20

Statute of Limitations and Tolling

N.J.S.A. 2A:14-1 states: "Every action at law for . . . any tortious injury 

to real . . . property . . . shall be commenced within [six] years next after the 

cause of any such action shall have accrued." N.J.S.A 2A:14-7 states: "Every 

action at law for real estate shall be commenced within [twenty] years next after 

the right or title thereto, or cause of such action shall have accrued." 

We have stated:

Equitable tolling has generally been 

applied in three circumstances:

(1) [where] "the complainant has been 

induced or tricked by his adversary's 

misconduct into allowing the filing 

deadline to pass" . . .

(2) where a plaintiff has "in some 

extraordinary way" been prevented from 

asserting his rights [and] . . .

(3) where a plaintiff has timely asserted his 

rights mistakenly by either defective 

pleading or in the wrong forum.

[Freeman v. State, 347 N.J. Super. 11, 31 

(App. Div.), certif. denied, 172 N.J. 178 

(2002) (quoting Dunn v. Borough of 

Mountainside, 301 N.J. Super. 262, 2[80]

(App. Div. 1997), certif. denied, 153 N.J. 

402 (1998)).]
16 A-0732-20

"[A]bsent a showing of intentional inducement or 

trickery by a defendant, the doctrine . . . should be 

applied sparingly and only in the rare situation where it 

is demanded by sound legal principles and in the 

interest of justice." Ibid. As required by the doctrine 

of substantial compliance, equitable tolling requires 

plaintiffs to "diligently pursue their claims" because 

although it "'affords relief from inflexible, harsh or 

unfair application of a statute of limitations,' [it] does 

not excuse claimants from exercising the reasonable 

insight and diligence required to pursue their claims." 

Id. at 31-32 (quoting Villalobos v. Fava, 342 N.J. 

Super. 38, 52 (App. Div.), certif. denied, 170 N.J. 210 

(2001)).

[Binder v. Price Waterhouse & Co., 393 N.J. Super. 

304, 312-13 (App. Div. 2007) (first and second 

alteration in original) (emphasis added).]

Plaintiffs assert the judge granted summary judgment based on disputed 

assertions and discovery was necessary before he could determine when their 

claims accrued because not every claim "depend[ed] on the date Americana 

represented it would sell or transfer all [u]nsold [s]hares to natural persons." 

Plaintiffs argue the plan and the articles of incorporation, which contemplated 

Americana would sell the apartments in its control and the attendant shares rebut 

the finding Americana was not required to sell its shares. They also contend the 

allegation defendants rejected offers to purchase unsold shares and apartments, 

which therefore tolled the statute of limitations, constituted a material factual 

dispute. They argue the judge did not resolve whether the applicable statute of 
17 A-0732-20

limitations was six years, under N.J.S.A. 2A:14-1, or twenty years, pursuant to 

N.J.S.A. 2A:14-7. 

Having considered plaintiffs' arguments and reviewed the record, we 

affirm the grant of summary judgment on counts one through six as barred under 

the statute of limitations for the reasons expressed by the motion judge. The 

plan demarcates a date for the transfer of the unsold shares. Apart from the 

continuing nuisance count, which was an alleged ongoing harm, plaintiffs' other 

claims accrued on July 25, 1988, which is the third anniversary of the closing 

date and the date plaintiffs allege the sales of the unsold shares must have been 

concluded. No discovery was required to determine the accrual date. 

We are unconvinced the statute of limitations should have been equitably 

tolled, or discovery was necessary to determine the accrual date. The record 

lacks any evidence defendants rebuffed offers to purchase the unsold units. 

Moreover, the record is devoid of evidence showing plaintiffs were deprived of 

asserting their rights by defendants in an "extraordinary way" and the expanse 

of time that has passed since plaintiffs' claims accrued in 1988 impels us to 

conclude they did not timely assert their rights. Plaintiffs' claims exceeded the 

statute of limitations under N.J.S.A. 2A:14-1 and N.J.S.A 2A:14-7. 
18 A-0732-20

Continuing Nuisance

Our Supreme Court has defined nuisance as follows:

The essence of a private nuisance is an unreasonable 

interference with the use and enjoyment of [property]. 

The elements are myriad. . . . Litigation of this type 

usually deals with the conflicting interests of property 

owners and the question of the reasonableness of the 

defendant's mode of use of his [or her property]. The 

process of adjudication requires recognition of the 

reciprocal right of each owner to reasonable use, and a 

balancing of the conflicting interests. The utility of the 

defendant's conduct must be weighed against the

quantum of harm to the plaintiff. The question is not 

simply whether a person is annoyed or disturbed, but 

whether the annoyance or disturbance arises from an 

unreasonable use of the neighbor's [property] or 

operation of his [or her] business.

[Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 

438, 448-49 (1959) (emphasis added).]

Plaintiffs argue the complaint sufficiently pled a cause of action for 

continuing nuisance, which should have survived summary judgment. They 

contend defendants' subletting of apartments and refusal to identify their tenants 

created a safety risk because the corporation had "no way of knowing with 

certainty that the people who are walking through the building actually belong 

there." Plaintiffs assert the building "'sustained increased wear and tear . . . ' 

due to the non-owner occupants in Americana's [fifty-two] apartments." They 

point to the DCA violations as an example of how "defendants' conduct has been 
19 A-0732-20

injurious to [p]laintiffs' safety, comfort, and well-being" and interfered with 

plaintiffs' use and enjoyment of their apartments. Plaintiffs argue the judge 

erred when he concluded they failed to demonstrate the corporation's lack of 

viability and the judge did not explain how a continuing nuisance claim was 

barred by the statute of limitations. 

We affirm dismissal of the continuing nuisance count because viewing the 

allegations in their most favorable light we are unpersuaded the claim warrants 

submission to a factfinder. Summary judgment was appropriate because the 

record shows defendants provided plaintiffs a list of the tenants occupying 

defendants' apartments. Furthermore, plaintiffs failed to supply the judge with 

the DCA violation notice and did not explain with any specificity the violations 

and how they were attributed to defendants. The same is true for plaintiffs' 

allegation of wear and tear to the building. Evidence of these claims was neither 

pled with specificity nor adduced in opposition to defendants' motion. 

Viability of the Corporation

Finally, plaintiffs argue the question of a sponsor's obligation to sell 

shares in a cooperative is an issue of first impression in New Jersey, which could 

not be decided on summary judgment, and that the judge should have relied upon 

unpublished case law rather than New York law. At the outset, we know of no 
20 A-0732-20

bar to adjudicating such issues on a summary judgment basis. And as a general 

proposition, we have held "[a]bsent New Jersey precedent, it is appropriate to 

look to out-of-state cases for guidance." Sulcov v. 2100 Linwood Owners, Inc., 

303 N.J. Super. 13, 30 (App. Div. 1997).

The motion judge did not err in relying on Jennifer Realty to adjudicate 

whether the minority of shares held by defendants affected the corporation's 

viability. In Jennifer Realty, a rent-controlled building was acquired in 1974

and transferred to the defendant sponsor. 98 N.Y.2d at 150. The defendant

received approval from the New York Attorney General to convert the building 

to a cooperative in 1987, and thereafter sold the building to the plaintiffs, the 

cooperative board, and defendant retained the unsold shares. Ibid. The plaintiffs

sued alleging the defendant retained more than sixty-two percent of the shares 

corresponding to forty-one of the sixty-six apartments in the building. Ibid. The 

plaintiffs claimed the defendant ceased updating the offering plan, causing it to 

lapse, thereby preventing the defendant from selling or marketing shares, and 

refused offers for purchase of the vacant apartments. Id. at 151. 

The plaintiffs alleged the defendant breached its contractual duty to 

dispose of its shares within a reasonable time and "undermined the contract 

[and] that its fundamental objective—the creation of a viable cooperative—
21 A-0732-20

[was] subverted." Id. at 151, 153. The plaintiffs claimed the defendant's actions 

affected the cooperative's viability because the defendant 1) retained the 

majority of the shares; 2) "gave no hint that it would make a sizeable profit by 

retaining a majority of those shares and leasing apartments at market rates, free 

of the strictures of rent regulation[;]" 3) "did not mention the risk that the 

sponsor would keep most of the shares for itself[;]" 4) defeated the purpose of 

its contract with the plaintiffs by retaining the majority of the shares; 5) "by 

rejecting offers from prospective buyers and allowing its offering plan to lapse , 

. . . frustrated [the] plaintiffs' ability to resell their shares, interfered with the 

[c]o-op [b]oard's refinancing of the building's mortgage and caused shareholders 

maintenance payments to increase[;]" 6) rented to transient tenants causing 

"increased wear and tear . . . forcing the [c]o-op [b]oard to charge even higher 

monthly maintenance fees[;]" and 7) caused "[the] plaintiffs [to] surrender[]

their rights pursuant to the Rent Stabilization Code by purchasing shares, but 

now pay more in monthly maintenance and cooperative loan payments than they 

had paid in rent as tenants." Id. at 152-53. 

The New York Court of Appeals held the plaintiffs pled a cause of action 

sufficient to survive the motion to dismiss "[b]ecause the sponsor's documentary 

evidence does not clearly refute these assertions, and particularly in light of the 
22 A-0732-20

sponsor's duty imposed by the Attorney General not to abandon the offering plan 

after filing an effectiveness amendment (see 13 NYCRR 18.3[r][11]) . . . ."

[4]

 

Id. at 153 (alteration in original). 

Subsequent cases have adopted the holding in Jennifer Realty. In Bauer 

v. Beekman Int'l Ctr., LLC, the defendant sponsor sold a majority of the units in 

a newly constructed condominium and the plaintiff brought suit arguing Jennifer 

Realty required the defendant to sell all of the units. 1 N.Y.S.3d 808 (App. Div. 

2015). The appellate court disagreed and affirmed the trial court's grant of 

summary judgment dismissal of the plaintiff's complaint noting "the motion 

court correctly found that [the] defendant demonstrated its prima facie 

entitlement to judgment regarding the elements of . . . viability relied on by [the] 

plaintiff, which tracked the language in Jennifer Realty but without elaboration, 

and [the] plaintiff failed to raise an issue of fact in opposition." Ibid. 

In other words, viability is not defined exclusively by the quantity of units

or shares retained by a sponsor but rather by evidence of the sort discussed in 

Jennifer Realty, showing the sponsor's operation of its portion rendered the 

corporation unviable. See also Gillespie v. St. Regis Residence Club, N.Y. Inc.,

4 13 NYCRR 18.3(r)(11) prohibits a sponsor from abandoning a plan subject to 

certain exceptions, which are inapplicable to our discussion. 
23 A-0732-20

343 F. Supp. 3d 332, 343 (S.D.N.Y. 2018) ("declin[ing] to expand the holding 

of Jennifer [Realty] . . . to imply an obligation that the [s]ponsor sell 'all' of [its] 

[i]nterests.") 

Here, applying Jennifer Realty we conclude the corporation was viable 

and plaintiffs presented no evidence to avoid summary judgment in defendants' 

favor. Defendants possessed less than nine percent of the total share, held no 

position on the board of the corporation, and did not interfere with the board's 

operations or its ability to obtain financing or meet its expenses. Defendants did 

not affect the individual plaintiffs' ability to sell or finance their units. No 

evidence was presented defendants' units increased either the corporation's 

expenses or the cost of living in the building. Plaintiffs presented no "competent 

evidential material[,]" Hoffman, 404 N.J. Super. at 426 (quoting Merchs. 

Express Money Ord. Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 

2005)), establishing a material issue of fact for a factfinder to resolve regarding

the corporation's viability.

A-0760-20

We review the adjudication of a motion for reconsideration for an abuse 

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

Similarly, "fee determinations by trial courts will be disturbed only on the rarest 
24 A-0732-20

of occasions, and then only because of a clear abuse of discretion." PackardBamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. 

Pantzer, 141 N.J. 292, 317 (1995)). "[A]n abuse of discretion [occurs] when a 

decision is 'made without a rational explanation, inexplicably departed from 

established policies, or rested on an impermissible basis.'" Deutsche Bank Tr. 

Co. Ams. v. Angeles, 428 N.J. Super. 315, 319 (App. Div. 2012) (citing U.S. 

Bank Nat'l Assoc. v. Guillaume, 209 N.J. 449, 467 (2012)) (first alteration in 

original). 

Defendants argue they are entitled to counsel fees pursuant to N.J.S.A. 

2A:18-61.66 because the proprietary lease is a residential lease and Americana 

is the corporation's tenant. They assert the lease mandates an award of fees and 

affords the motion judge discretion only as to the amount of the award. We 

disagree.

Like the motion judge, we are unconvinced N.J.S.A. 2A:18-61.66 applied 

here because the statute governs the award of attorney's fees in a landlord tenant 

action arising from a residential lease. Neither party asserted a cause of action 

sounding in tenancy. Our review of the statute's legislative history does not 

convince us the Legislature intended it to address a dispute such as this one. See 
25 A-0732-20

generally N.J.S.A 2A:18-61.1(a). For these reasons we discern no abuse of 

discretion in the denial of fees to defendants.

Affirmed in A-0732-20 and affirmed in A-0760-20.