SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 19T4 EPCO SERVICES, INC., Plaintiff

- Respondent,

v. BRIGHTSTAR HOSPITALITY, LLC , and JAYENDRA C. PATEL, Defendants

- Appellants.

_____________________________

Argued November 13, 2019

– Decided Before Judges Fisher and Gilson. On appeal from an interlocutory order of the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C

- 000 112

- 18. Patrick J. Galligan argued the cause for appellants (Donnelly Minter & Kelly LLC, attorneys; Patrick J. Galligan, of counsel and on the brief ; Patrick J. Galligan , Laura E lizabeth Dallago and Jared J ames Limbach, on the brief). Martin M . Newmark argued the cause for respondent (Porzio Bromberg & Newman PC, attorneys; Martin M

. Newmark, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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November 25, 20192 A

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PER CURIAM By way of a December 2, 2013 contract, p laintiff Ep co Services, Inc. (seller) agreed to convey to defendant Brightstar Hospitality, LLC (buyer), for the price of $2,250 ,000, real property located on Route 10 in Hanover Township. Their contract allowed the buyer seventeen months to secure governmental
appr ovals and permits neede d to develop the property; the contract's May 2, 2015 closing dat e was declared "time of the essence " and could not be extended without seller's consent. Even though the contract called for a closing so far in the future

–
seventeen months away

– the parties entered into numerous agreements to extend the closing date for another twenty

- four months . The first such agreement allowed not only an extension of the closing date but also an extension of the time within which buyer was requ ired to meet both the
contract's governmental approval and permit contingencies for nine months. Shortly before that extension expired, the parties agreed to another, which extended the time of the essence closing date to May 31, 2016; they did not , howev er, agree to extend the approval and permit contingencies at that time

. In May 2016, an agr eement was reached to extend the closing date to Octobe r 31,
2016.3 A

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A fourth such agreement, which extended the closing date for another four months, also obligated the buyer to assume the cost of the real estate taxes, security fencing, and the seller' s legal fees associated with that extension agreement; like the two prior extensions, the approval and per mit contingencies

were not extended. This fourth extension ag reement unambiguously stated that if buyer failed to close on the new "time of the essence" closing date

– February 28, 2017

– the seller

will have the right to terminate the [c]ontract without regard to whether you have received the necessary [a]pprovals or [p]ermits or whether the appeal period for any such approvals or permits have expired. If the [c]ontract is terminated its reinstatement will call for a revised and increased [p]urchase [p]rice as well as other revised terms and conditions. We repeat, although the [c]ontract [c]ontingencies may or may not be satisfied by February 28, 2017 [,] [buyer] will nevertheless be required to close by that date failing which the [c]ontract may be terminated by the [s]eller and of no further force or effect. This agreement included the seller's caution that buyer "should not anticipate additional extensions." The parties entered into two more extension agreements, all containing the same conditions and cautions expressed in the fourth; the last of these fixed May 5, 2017, as the time o f the essence closing

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Two weeks before that last closing date, the zoning board approved buyer's site plan, but buyer advised s eller that it could not close on May 5, 2017 , because "its ' lender ' was unwilling to provide the fina ncing necessary for [buyer] to close until the [s]ite [p]lan [a] pproval had been memorialized in a formal [r]esolution of [a]pproval." On May 9, 2017, seller advised the buyer that it had terminated the contract because of buyer's failure to close four da ys earli er; the seller's letter also reminded the buyer that the contract contained buyer's representation that financing was not required and that buyer had "the financial ability to pay the p urchase [ p ] rice without financing, " thus presenting another
gro und for termination. In October 2018, seller commenced this action in the Chancery Division, seeking declaratory relief and damages. Buyer and its principal

– defendant Jayendra Patel

– filed a counterclaim, which contained three counts: breach of
contr act, unjust enrichment, and restitution. The seller moved for summary judgment and, on August 22 , 2019, the chancery judge granted partial summary ju dgment in seller's favor on counts one and four of its complaint 1 ; the judge also dismissed all three coun ts of buyer's counterclaim.

1 Count one sought a declaration that seller was permitted to terminate the contract due to buyer's failure to timely close, and count four sought a (continued)5 A

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We granted leave to appeal to consider buyer's arguments that summary judgment should have been denied because: (a) "[m]aterial questions of fact regarding the meaning of the agreement at issue should have prevented the entry

o f summary judgment on the parties' declaratory and contract

- related claims," and (b) "[buyer's] counterclaims for unjust enrichment and restitution are supported by competent proofs." After careful examination of the record in light of these arguments, we find no merit in buyer's arguments and affirm substantially for the reasons set forth in Chancery Judge Maritza Berdote

Byrne's thorough and well

- reasoned written decision. The buyer's opposition to the motion included only unspeci fic assertions based on conversations w ith seller's representative. The buyer's certification did not identify when the conversations occu rred or what was said; the buyer merely asserted that those conversations lead to "an understanding that the closing date would continue to b e extended and that [seller] would work with [buyer] to comple te the sale." That type of "c onclusory and self

- serving assertion[]," Puder v. Buechel , 183 N.J. 428, 440 (2005), "without explanatory or supporting facts , " cannot defeat a merit orious summary judgment motion. Hoffman v.

declaration that the contract termination accorded with the extension agreements. The other two counts, wh ich remain unadjudicated, allege equitable fraud and buyer's breach of the implied covenant of good faith and fair dealing.6 A

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Asseenontv .com, Inc

. , 404 N.J. Super. 415, 425

- 26 (App. Div. 2009). We agree that the buy er's conclusory response could not generate a genuine factual dispute. The evidence justifying seller's termination of th e contract was so "one

sided" that summary judgment was properly granted. Brill v. Guardian Life Ins. Co. of Am. , 142 N.J. 520, 533 (1995)

. The order granting partial summary judgment is a ffirmed and the matter remanded for the disposition of the remaini ng issues

. We do not retain jurisdiction.