SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2744-18T3

GARY MATARAZZO, 

EXECUTOR OF THE ESTATE 

OF MARIA D. MATARAZZO, 

Deceased,

Plaintiff-Respondent,

v.

JOSEPH J. TALAFOUS, a/k/a

JOSEPH J. TALAFOUS, JR., 

Defendant-Appellant.

__________________________

Submitted April 29, 2020 – Decided June 29, 2020

Before Judges Koblitz and Whipple.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-4047-17.

Miller Meyerson & Corbo, attorneys for appellant 

(Gerald D. Miller, of counsel and on the briefs).

Walsh & Walsh, LLC, attorneys for respondent (John 

K. Walsh, Jr., of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Defendant Joseph J. Talafous, Jr., appeals from the February 12, 2019 

judgment entered after a bench trial in favor of plaintiff Gary Matarazzo, 

executor of the estate of Maria D. Matarazzo (the estate). 

We discern the following facts from record. Plaintiff became friendly 

with defendant because defendant's father previously represented plaintiff in a 

worker's compensation matter related to his company. On May 12, 2012, Maria 

D. Matarazzo, a resident of New York and plaintiff's aunt, died testate. Plaintiff 

engaged defendant to provide legal services to plaintiff in connection with the 

administration of her four-million-dollar estate. 

Maria's will identified plaintiff's deceased father as the estate's executor. 

Defendant told plaintiff he would make him the executor and prepared papers to 

that effect and secured the signatures of plaintiff's siblings. Defendant then went 

to the Surrogate of Hudson County to make plaintiff the sole executor of Maria's 

estate. Defendant was not licensed to practice law in New York, but, told 

plaintiff "since [plaintiff is] a friend he would take care of [him] like no other 

lawyer would . . . be able to." Although plaintiff testified as to certain acts 

defendant undertook in connection with the estate, such as opening bank 

accounts and creating a corporation, defendant never sent plaintiff any invoices 

nor any statements indicating the nature of his services or an hourly rate. 
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In May 2015, defendant told plaintiff he ran into some legal trouble and 

that John K. Walsh, Jr. – plaintiff's counsel in the present matter – would handle 

matters going forward, as he was licensed in New York and defendant had 

planned to utilize him for the estate work because property, such as Maria's hair 

salon business, was located in New York. Although defendant told plaintiff he 

periodically paid Walsh, he never presented any bills to plaintiff. Defendant 

was suspended from the practice of law on May 20, 2015 and disbarred on July 

13, 2015. In re Talafous, 222 N.J. 127 (2015).

On May 16, 2016, a New Jersey Grand Jury issued a nineteen-count 

superseding indictment charging defendant with theft by deception and the 

misapplication of entrusted property. On January 10, 2018, a jury convicted 

defendant on all but one of the nineteen counts. In November 2018, defendant 

was sentenced to twenty-six years in prison. We affirmed his conviction in State 

v. Talafous, A-3594-17 (App. Div. June 10, 2020). 

By letter dated March 22, 2017, plaintiff requested fee arbitration, but the 

Fee Arbitration Committee, which found the sum alleged was beyond its 

jurisdiction, denied his request. On June 13, 2017, plaintiff filed a complaint 

seeking reimbursement of the $353,362.46 in legal fees he paid defendant for 

unknown services or "such amount representing the difference between the 
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reasonable value[] of the services rendered and the amount paid by the Plaintiff." 

Defendant answered, denying plaintiff was entitled to any refund. 

In April 2018, plaintiff served interrogatories and document demands but 

defendant never responded nor did he provide any documents he intended to 

utilize at trial or a list of potential witnesses. On May 25, 2018, the trial court 

entered an order authorizing defendant's deposition at South Woods State Prison, 

where he was serving his sentence. However, defendant advised he would assert 

his Fifth Amendment privilege against self-incrimination. On November 19, 

2018, the trial court denied defendant's request for a stay until the completion 

of his criminal appeal and ordered plaintiff to proceed with a proof hearing as 

defendant lacked standing to testify on his own behalf and his appearance at trial 

would be meaningless due to his assertion of the self-incrimination privilege. 

On January 28, 2019, the parties appeared for a bench trial on the matter. 

The trial judge first addressed defendant's request to call Walsh as a witness. 

Defendant argued that Walsh already testified in the criminal trial concerning 

the payments he received from defendant in connection with the estate and his 

current representation presented an issue under the Rules of Professional 

Conduct (RPC) 3.7. Defendant intended to call Walsh as a witness in order to 

elicit testimony regarding the services rendered by defendant. Plaintiff argued 
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defendant's failure to respond to any discovery requests and the assertion of his 

self-incrimination privilege barred him from calling any witnesses. Plaintiff 

further argued Walsh's testimony in the criminal trial concerned Walsh's own 

efforts in administering the estate and that, should the trial court allow the 

testimony, the RPC 3.7 issue could be resolved by having another attorney from 

his office testify concerning interactions with defendant. 

After reviewing the pre-trial history, the judge stated

So the point being that it was Judge Polifroni's opinion 

that the defense had no standing to testify, and that the 

participation of the defense would be to challenge the 

proofs . . . presented, in that the defendant would not 

have standing to testify. So even if this court views this 

as a motion in limine to bar the defendant from calling 

witnesses . . . or testifying, [t]he [c]ourt would grant 

that motion in that the defendant, having failed to 

participate in discovery, should not, in essence, be 

permitted to do, in essence, the same thing by calling 

Mr. Walsh as a witness, as part, I guess, of a challenge 

to the proofs.

The trial judge further noted Walsh's previous testimony "would be of record, 

and whatever that testimony was there would have been a transcript of it 

available . . . ." 

The court denied defendant's application to call Walsh as a witness 

"having made the determination that the defendant is not permitted to either 

testify in his own behalf or call witnesses on his own behalf." The court also 
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declined to rule "on RPC 3.7 . . . because [t]he [c]ourt [did] not have enough 

information before it absent a full hearing on the in limine application . . . ." At 

the close of plaintiff's case, the court allowed defendant to put a proffer on the 

record concerning Walsh's testimony because defense counsel planned to 

question him regarding his various interactions with defendant. Namely, the 

administration of the estate as the information was relevant to any services 

rendered by defendant to the estate. 

In a letter opinion dated January 29, 2019, the court found the facts 

demonstrated defendant received nineteen checks totaling $353,262.46 from the 

estate and Walsh received three checks from defendant totaling $7,951.85. The 

court found plaintiff established a prima facie case that it was entitled to 

$345,310.61, the difference between the money paid to defendant and the money 

paid to Walsh. The court then shifted "the burden . . . to defendant to prove the 

sum is less, or as set forth in defendant's answer to the complaint, that plaintiff 

is owed nothing." The judge noted her disagreement with defendant's proffer 

stating the proffer failed 

to set forth how an attorney, handling other aspects of 

the . . . [e]state, would be able to competently testify 

regarding services performed, the retainer agreement, 

amounts paid by [defendant] to other attorneys who are 

alleged to have performed work on the [e]state, or 

credits to which [defendant] is allegedly entitled for 
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work done by accountants or other professionals in 

connection to the [e]state.

The court found plaintiff was a credible witness and concluded it was clear that 

he trusted defendant and never saw any documentation related to services 

rendered on the estate's behalf. The court also found testimony concerning the 

eligibility of other family members as executors of the estate, and the work 

performed regarding plaintiff's father's prior estate, were not germane to its 

determination of what defendant owed plaintiff. 

On February 12, 2019, the court entered a judgment awarding plaintiff 

$345,310.61 plus interest. On March 18, 2019, the trial court entered an 

additional order directing defendant to pay attorney's fees to plaintiff in the 

amount of $27,408.95. This appeal followed.

On appeal, defendant argues the trial court erred by not permitting him to 

produce evidence relating to the services rendered. Defendant also argues the 

court failed to give him credit for the services he provided. He contends that 

plaintiff acknowledged services had been rendered by him and the court should 

have required plaintiff to provide proof as to the reasonable value of the services 

or allowed defendant to present proof of the services rendered. 

"[W]e apply an abuse of discretion standard to decisions made by [the] 

trial court[] relating to matters of discovery." Pomerantz Paper Corp. v. New 
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Cmty. Corp., 207 N.J. 344, 371 (2011). However, a trial court's interpretation 

of the law is not entitled to any special deference. State v. Pomianek, 221 N.J. 

66, 80 (2015) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995)).

Rule 4:23-1 provides that a party may apply for an order to compel 

discovery. In circumstances "where a party to civil litigation refuses to submit 

to discovery because of the assertion of the privilege against self-incrimination, 

it is clear that the party asserting the privilege legitimately cannot be held in 

contempt . . . ." Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1. on R.

4:23-1. Nevertheless, it is appropriate "to permit the party asserting the 

privilege to testify at trial and direct[] that party to furnish a list of all trial 

witnesses intended to be called for pretrial deposition purposes." Pressler & 

Verniero, cmt. 2.1. on R. 4:23-1. "It would not, however, be appropriate to 

permit the plaintiff to recover judgment against the party asserting the privilege 

without requiring the plaintiff to introduce proofs and having his witness crossexamined." Pressler & Verniero, cmt. 2.1. on R. 4:23-1.

Before trial defendant refused to answer interrogatories, produce 

documents, identify witnesses and be deposed by asserting, in good faith, his 

privilege against self-incrimination. When we consider defendant's refusal to 
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provide discovery, we are fully cognizant his invocation of the privilege against 

self-incrimination during a civil proceeding places him in a difficult posture. In 

Mahne v. Mahne, 66 N.J. 53, 58 (1974), the Court observed that "[i]n civil 

proceedings the courts have, in the interests of truth and justice, displayed 

understandable readiness to impose noncriminal sanctions for refusal to submit 

to pretrial discovery on the basis of the privilege . . . ." See also WoodwardClyde Consultants v. Chem & Pollution Scis., Inc., 105 N.J. 464, 475 (1987) 

(noting that when a defendant invokes the privilege against self-incrimination, 

a "trial court [may] . . . impose[] alternative sanctions such as staying discovery 

or precluding defendant from offering affirmative proof at trial."). There, the 

Court differentiated plaintiffs who invoke the right against self-incrimination to 

avoid pretrial discovery to avoid dismissal from defendants, like Talafous, who 

invoke the same right because he is in court involuntarily. Mahne, 66 N.J. at 

59. The Court explained, "courts have generally declined to strike [a 

defendant's] answer and thus permit a default judgment . . . although they have, 

in seeking proper balance, been willing to impose lesser sanctions." Ibid.

In Whippany Paper Bd. Co. v. Alfano, 176 N.J. Super. 363, 374-75 (App. 

Div. 1980), we observed that it is an appropriate remedy, in the face of a 

defendant's claim of the privilege against self-incrimination, to preclude the 
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party claiming the privilege from testifying at trial. In that case, we also 

explained that if a plaintiff convinces a trial court that he or she is unable to 

"proceed without discovery from defendants," the "judge may well be justified 

in striking the answer of a defendant claiming the privilege against selfincrimination and entering judgment against him without proof of the claim or 

perhaps on the basis of less persuasive evidence that might otherwise be 

required." Id. at 375. 

In this case, plaintiff provided defendant nineteen separate checks in 

connection with the administration of the estate. In return, defendant never 

provided plaintiff any statement, invoice, or correspondence as to the value or 

nature of the services provided. Upon hearing plaintiff's testimony and 

assessing his credibility, the trial judge determined she "[could not] speculate 

what services were performed by [defendant] or what the value of those services 

might be." The judge reasonably determined that plaintiff had no knowledge of 

the value of any services provided by defendant nor did defendant explain what 

work he provided. 

After establishing plaintiff proved a prima facie case that the estate was 

entitled to $345,310.61, it became defendant's burden to prove the sum was less. 

Defendant provided limited insight as to the value of work he provided in 
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connection with the limited interactions about which plaintiff testified. We 

discern no abuse of the court's discretion.

Affirmed.