SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0324-16T3

 A-2568-16T3

JOSEPH TODARO,

Plaintiff-Appellant,

v.

LANGSTONE, LLC and

JOSEPH MANZO, ESQ.,

Defendants,

and

SALVATORE GIORDANO, III,

Defendant-Respondent.

_______________________________

INTEGRATED DESIGN SYSTEMS

OF NEW JERSEY, LLC,

Plaintiff,

v.

LANGSTONE, LLC,

Defendant-Respondent,

NOT FOR PUBLICATION WITHOUT THE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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and

JOSEPH TODARO,

Defendant/Third-Party

Plaintiff-Appellant,

v.

SALVATORE GIORDANO, III,

Third-Party Defendant.

_____________________________

Argued September 25, 2018 – Decided

Before Judges Yannotti and Rothstadt.

On appeal from Superior Court of New Jersey, Law 

Division, Somerset County, Docket Nos. L-0896-16 

and L-1030-08.

Randall J. Peach argued the cause for appellant Joseph 

Todaro in A-0324-16 and A-2568-16.

Respondent Salvatore Giordano, III has not filed a brief 

in A-0324-16.

Joseph A. Manzo argued the cause for respondent 

Langstone, LLC, in A-2568-16.

PER CURIAM

In these two appeals that we considered back-to-back and consolidated for 

purposes of writing one opinion, the principal parties, Joseph Todaro and 

December 24, 2018
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Salvatore Giordano, III and his company, Langstone Inc., have been pursuing 

each other through litigation for more than a decade.1 The present appeals arose 

from their commercial tenancy dispute that was tried by a judge in 2012 and 

resulted in a substantial judgment against Todaro. We affirmed that judgment 

in a 2016 unpublished opinion. See Todaro v. Langstone, LLC, No. A-5892-11 

(App. Div. March 2, 2016) (slip op. at 2).

After we issued our opinion, Todaro filed a motion and a separate 

complaint in a new action seeking primarily to vacate the judgment against him

and argued that it was obtained through Giordano's perjury and commission of 

a fraud upon the court during the 2012 trial. In A-0324-16, Todaro now appeals 

from the trial court's dismissal of his new complaint and in A-2568-16, from the 

denial of his Rule 4:50-3 motion to vacate. For the reasons that follow, we 

affirm both orders under appeal.

We begin with a summary of the facts already reviewed in our earlier 

opinion, Todaro, slip op. at 3-13, adding the procedural history of the actions 

filed since we issued our opinion to give context to the present dispute. In 2005,

Langstone and Todaro entered into a fifteen-year lease for commercial property 

 

1

 One trial court judge observed that by 2012, there had been seven complaints 

filed between the same parties.
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owned by Todaro, which required Langstone to obtain municipal approvals for

the construction of an automotive oil change facility it was going to operate from

the leased premises. Langstone hired Integrated Design Systems of New Jersey, 

LLC ("Integrated") as its general contractor, but a dispute arose that resulted in 

Integrated leaving the job and Todaro and Langstone disagreeing over who was 

responsible for the construction not being completed. 

The present dispute arose from two actions originally filed by Integrated 

against Langstone and Todaro in 2008 for its unpaid bills and to establish a 

construction lien. The two actions were consolidated and Langstone asserted

claims against Todaro, who in turn in turn joined Giordano. After Langstone 

and Integrated settled, the remaining claims between Langstone, Giordano, and 

Todaro proceeded to trial.

Giordano's and Langstone's claim against Todaro was premised upon 

Todaro's interfering with the approvals Langstone obtained from` the local 

planning board. According to Giordano, the project was unable to proceed

because of an April 9, 2008 letter sent to the planning board by Todaro's attorney 

which objected to Langstone's proposed demolition plans and resulted in the 

board reevaluating and ultimately withdrawing its approval. When the board 

withdrew its approval, Integrated ceased working on the project.
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A-0324-16T3

During his cross-examination of Giordano, Todaro's attorney confronted 

him with a letter Giordano sent on April 21, 2008 to the borough attorney, stating

that he had fired Integrated. Giordano testified that, despite the letter, he did 

not terminate the relationship with Integrated and that the letter was simply 

"posturing." 

During the later testimony of Todaro's last witness, his engineering expert, 

the witness produced a March 28, 2008 email sent at 12:51 p.m. by Giordano to 

Integrated stating that the contract with Integrated was "terminated" because it

had not provided certain required information. Giordano sent a second email 

after Integrated responded, stating that if it did not resolve a specific issue by 

the following Tuesday, he would "hire [his] own excavator . . . and finish the 

project [him]self." Todaro contended that Giordano's firing of Integrated, as 

confirmed in the first email rather than his attorney's April 9, 2008 letter to the 

board, was the cause of the project's failure and established Giordano's lying to

the court. 

In his comprehensive, sixty-nine-page written decision, the trial judge

found Giordano to be credible and Todaro to be unbelievable. As to the letters 

and emails relating to Integrated's termination, the judge accepted Giordano's

explanation that he was "posturing." As we observed in our earlier opinion, after
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considering all of the evidence at trial, the "judge found that Todaro was in 

material breach of the lease . . . ." Todaro, slip op. at 12. The judge ultimately

found for Langstone and Giordano, entered judgment in Langstone's favor for 

$305,557.64, and dismissed Todaro's claims against Langstone and Giordano. 

In response to Langstone's efforts to collect its judgment, in December 

2013, Todaro filed a motion to set aside the judgment under Rule 4:50-3 and for 

the imposition of sanctions against Langstone based on Giordano's committing 

a fraud on the court and perjuring himself at trial. (Da 114-116). At the time 

he filed his motion, Todaro had already filed a notice of appeal from the trial 

judge's decision on August 13, 2012. In support of the motion, Todaro filed his 

attorney's twenty-page certification in which he argued it was apparent that the

judgment entered against Todaro was based upon Giordano's perjury and fraud

and should be vacated.

Attached to counsel's certification were various documents that pre-dated 

the trial and which counsel asserted established the fact that Giordano 

committed perjury. The documents included a construction lien filed by 

Langstone; the April 21, 2008 letter from Giordano to the borough attorney; a 

copy of a construction lien claim filed by Integrated in April 2008; an April 18, 

2008 letter Langstone wrote to the Office of Regulatory Affairs; and a June 11, 
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2008 letter from Giordano to Valley National Bank. According to counsel, all 

of these items established that Giordano fired Integrated as of March 28, 2008.

On January 31, 2014, the motion judge denied Todaro's motions without 

prejudice. As set forth in his written decision, the judge found that the motion 

to set aside the judgment was untimely and that a decision on the motion "would 

be usurping the Appellate Division . . . ." Todaro filed a second appeal 

challenging the denial of his motion, which we considered with the then-pending 

earlier appeal from the trial judge's decision. 

In his earlier appeals, Todaro raised numerous issues regarding the trial 

judge's decision and the denial of his December 2013 post-judgment motion to 

vacate. Among his contentions, he stated that the judgment against him was 

entered in error and should have been vacated based upon Giordano's

committing perjury relative to the dispute about why Integrated stopped 

performing at the site. We issued our opinion on March 2, 2016, in which we

rejected Todaro's arguments as being without merit and affirmed based upon the 

findings made by the trial judge. We concluded that the trial judge's 

determination about Todaro's interference with the project was supported by 

substantial credible evidence. We then addressed certain specific contentions 

made by Todaro and we stated that to the extent we did not specifically address 
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Todaro's remaining arguments, they lacked sufficient merit to warrant 

discussion, citing to Rule 2:11-3(e)(1)(E). We later denied Todaro's motion for 

reconsideration. In September 2016, the Supreme Court denied Todaro's

petition for certification. Todaro v. Langstone, LLC, 227 N.J. 357 (2016).

In April 2016, Todaro filed a new complaint seeking damages and alleging 

that Langstone, Giordano, and their attorney, Joseph Manzo, committed perjury 

and fraud during the bench trial. Manzo filed a Rule 4:6-2(e) motion to dismiss 

for failure to state a claim in lieu of an answer. During the hearing on the 

motion, Manzo argued that the courts already determined there were no issues 

relating to perjury. Todaro maintained that no court addressed these claims and 

that the trial judge was misled. In opposition to the motion, Todaro filed a 

certification from his trial attorney who certified that the judgment was entered 

as a result of Giordano's perjury "when he testified, repeatedly, that he never 

fired [Integrated] . . . ." He also explained that Giordano was not crossexamined with the March 28, 2008 emails, that the emails were disclosed only 

"[at] the end of the trial," and that he only cross-examined Giordano about the 

April 21, 2008 letter he sent to the borough attorney.

On August 9, 2016, Judge Yolanda Ciccone granted Manzo's motion and 

entered an order dismissing Todaro's new complaint with prejudice as to all 
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defendants. She found that the claims against Manzo were barred by both the 

litigation privilege and collateral estoppel. She specifically concluded that a 

"finding that [Todaro's] claims are barred by the doctrine of collateral estoppel 

as to . . . Langstone or Manzo effectively bars [Todaro's] claims against 

Giordano." The judge then analyzed each of Todaro's claims and found that the 

same contentions were raised and ruled upon by the trial judge, our court, and 

the motion judge in Todaro's December 2013 motion to vacate. Relying on her 

findings that collateral estoppel applied, Judge Ciccone dismissed Todaro's 

complaint as to all defendants with prejudice. Todaro appealed from the order 

on September 22, 2016.

In November 2016, Todaro filed a motion to set aside the 2012 judgment 

under Rule 4:50-3 and again argued that Langstone through Giordano committed 

perjury and fraud on the court. In support of his motion, Todaro filed the

certification of his attorney that had attached various documents, many if not all 

of which were included in the certification filed in support of the December 2013 

motion to vacate. The documents that counsel designated as "Materials 

documenting the perjury committed by Langstone" included a copy of an 

undated complaint filed by Giordano in 2016 against Todaro, his attorneys and 
10 A-0324-16T3

others.2 They also included copies of Todaro's motion and attorney's 

certification filed in his 2013 post-judgment motion to vacate; the earlier March 

28, 2008 email from Giordano to Integrated; a construction lien claim in favor 

of Langstone as to Todaro's premises; the April 9, 2008 letter from Todaro's 

attorney to the planning board's attorney; portions of transcripts from earlier 

proceedings between the parties in 2011; the April 21, 2008 letter from Giordano 

to the borough attorney; a copy of a 2008 complaint filed by Integrated against 

Langstone; a 2013 letter from Manzo to the trial judge; a 2008 letter from 

Giordano to the Office of Regulatory Affairs; a 2008 letter from Langstone to 

Valley National Bank; and a copy of a certification dated September 21, 2010, 

and filed by Integrated in its initial action against Langstone. In that 

certification, Integrated's managing member stated that "on or about March 28, 

2008," Langstone prevented Integrated "from working on the project." 

On January 20, 2017, Judge Ciccone entered an order denying Todaro's 

motion. In her oral decision, the judge found again that the doctrine of collateral 

estoppel barred Todaro's claims from being re-litigated. Todaro filed his appeal 

from that order on February 22, 2017. 

 

2

 Judge Ciccone dismissed Giordano's complaint in April 2017. That order is 

not a subject of these appeals. 
11 A-0324-16T3

In his present appeal from the denial of his motion to vacate, Todaro 

argues that it would be a "miscarriage of justice" if we do not intervene and 

vacate "the judgment [that was] based on [Giordano's] indisputable perjury and 

fraud on the [] court . . . ." He contends that collateral estoppel should not have 

barred the pursuit of his motion to vacate and he suggests that we employ a de 

novo standard of review in our consideration of Judge Ciccone's order because 

she failed to conduct the proper analysis.

Todaro's contentions on appeal from Judge Ciccone's order dismissing his 

complaint under Rule 4:6-2(e) are similar. In that appeal, he argues collateral 

estoppel should not have barred his pleading. Additionally, he contends that it 

was an error to dismiss the complaint as to Giordano, who was not a party to 

Manzo's motion; that Manzo failed to establish he was entitled to dismissal 

under the applicable standard; the dismissal motion should have been denied 

because it was based upon "false representations;" and the judge improperly 

determined that "the litigation privilege" barred any claim against Manzo for

assertions made during the trial.

The common argument in Todaro's present appeals, and the lynchpin to 

all of the other issues he raises, is that Judge Ciccone erred in her application of 

the doctrine of collateral estoppel. We disagree.
12 A-0324-16T3

The doctrine of collateral estoppel "'bars re[-]litigation of any issue which 

was actually determined in a prior action, generally between the same parties, 

involving a different claim or cause of action.'" In re Liquidation of Integrity 

Ins. Co., 214 N.J. 51, 66 (2013) (quoting Div. of Youth & Family Servs. v. R.D., 

207 N.J. 88, 114 (2011)).

For collateral estoppel to apply: 

the party asserting the bar must show that: (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 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.

[In re Estate of Dawson, 136 N.J. 1, 20 (1994).]

See also Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85 (2012). 

However, "[e]ven where these requirements are met, the doctrine, which has its 

roots in equity, will not be applied when it is unfair to do so." Olivieri v. Y.M.F. 

Carpet, Inc., 186 N.J. 511, 521-22 (2006) (alteration in original) (quoting Pace 

v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)).

Our Supreme Court has identified "a variety of fairness factors" favoring 

application of collateral estoppel, including: "conservation of judicial resources; 
13 A-0324-16T3

avoidance of repetitious litigation; and prevention of waste, harassment, 

uncertainty and inconsistency." Allen v. V & A Bros., Inc., 208 N.J. 114, 138 

(2011) (quoting Olivieri, 186 N.J. at 523). In contrast, the fairness factors 

weighing against application of collateral estoppel include consideration of 

whether:

the party against whom preclusion is sought could not 

have obtained review of the prior judgment; the quality 

or extent of the procedures in the two actions is 

different; it was not foreseeable at the time of the prior 

action that the issue would arise in subsequent 

litigation; and the precluded party did not have an 

adequate opportunity to obtain a full and fair 

adjudication in the prior action. 

[Ibid. (quoting Olivieri, 186 N.J. at 523).] 

Also weighing against preclusion is "a concern that 'treating the issue as 

conclusively determined may complicate determination of issues in the 

subsequent action' . . . .'" Ibid. (quoting Restatement (Second) of Judgments § 

29 (Am. Law Inst. 1982)). Indeed, collateral estoppel will not be applied 

"where, after the rendition of the judgment, events or conditions arise which 

create a new legal situation or alter the rights of the parties." Kozlowski v. 

Smith, 193 N.J. Super. 672, 675 (App. Div. 1984) (quoting Wash. Twp. v. 

Gould, 39 N.J. 527, 533 (1963)). Another example is when "new evidence has 
14 A-0324-16T3

become available that could likely lead to a different result." Barker v. Brinegar, 

346 N.J. Super. 558, 567 (App. Div. 2002). 

Thus, "[t]he relevant focus 'must center on whether the conditions 

precedent to the application of the collateral estoppel doctrine have been 

satisfied and, if so, whether the application of the doctrine is equitable under the 

circumstances.'" L.T. v. F.M., 438 N.J. Super. 76, 86 (App. Div. 2014) (quoting 

R.D., 207 N.J. at 116).

Under the first prong, the prior action must have involved substantially 

similar or identical issues. Ibid. (quoting Olivieri, 186 N.J. at 521). Some courts 

have required the issues to be "precisely the same . . . ." In re Liquidation, 214 

N.J. at 68 (quoting In re McWhorter, 887 F.2d 1564, 1567 (11th Cir. 1989). This 

prong therefore requires consideration of

whether there is substantial overlap of evidence or 

argument in the second proceeding; whether the 

evidence involves application of the same rule of law; 

whether discovery in the first proceeding could have 

encompassed discovery in the second; and whether the 

claims asserted in the two actions are closely related.

[First Union Nat'l Bank v. Penn Salem Marina, Inc., 

190 N.J. 342, 353 (2007).]

Under the second Dawson prong, an "issue is actually litigated" if the 

issue "'is properly raised, by the pleadings or otherwise, and is submitted for 
15 A-0324-16T3

determination, and is determined . . . .'" Allesandra v. Gross, 187 N.J. Super. 

96, 105-06 (App. Div. 1982) (quoting Restatement (Second) of Judgments § 27, 

cmt. d (Am. Law Inst. 1982)). By contrast, an issue is not "actually litigated" 

when, although it is raised, "no decision with respect thereto was ever rendered" 

by the prior tribunal. Id. at 106-07.

With these guiding principles in mind, we turn to our review of the orders 

denying Todaro's Rule 4:50-3 motion and dismissing his complaint under Rule

4:6-2(e). We review a court's determination of a Rule 4:50 motion under an 

abuse of discretion standard. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 

(2009). We will find "an abuse of discretion when a decision is made 'without 

a rational explanation, inexplicably departed from established policies, or rested 

on an impermissible basis.'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 

467 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). 

We "review a grant of a motion to dismiss a complaint for failure to state 

a cause of action de novo, applying the same standard under Rule 4:6-2(e) that 

governed the motion court." Wreden v. Twp. of Lafayette, 436 N.J. Super. 117, 

124 (App. Div. 2014). As such, we are required to limit our inquiry "to 

examining the legal sufficiency of facts alleged on the face of the complaint." 

Green v. Morgan Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart-
16 A-0324-16T3

Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Legal sufficiency 

"requires allegation of all the facts that the cause of action requires." Cornett v. 

Johnson & Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010). The test is 

whether a cause of action is "suggested" by the facts. Printing Mart, 116 N.J. at 

746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192) (1988)). 

We "search[] the complaint in depth and with liberality to ascertain whether the 

fundament of a cause of action may be gleaned even from an obscure statement 

of claim, opportunity being given to amend if necessary[,]" ibid. (quoting Di 

Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 

1957)), unless an "opportunity to amend would not be fruitful." Johnson v. 

Glassman, 401 N.J. Super. 222, 247 (App. Div. 2008). See also Hoffman v. 

Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. Div. 2009).

Applying both standards, we conclude from our review that Judge Ciccone 

neither abused her discretion in denying Todaro's motion to vacate nor erred in 

granting Manzo's Rule 4:6-2(e) motion as to all defendants. In each instance, 

we agree with the judge's determination that Todaro's claims of perjury were 

litigated through the trial and in our consideration of Todaro's earlier appeals.

Even if collateral estoppel did not apply, we conclude that Todaro's claims 

were not supported by any "clear, convincing and satisfactory evidence" of
17 A-0324-16T3

perjury that was not available to him during the trial and that established the 

alleged "[p]erjured testimony . . . warrant[ed] disturbance of [the] final 

judgment . . . [because it was] willfully and purposely falsely given, and . . . 

[was] material to the issue tried and not merely cumulative but probably to have 

controlled the result." Shammas v. Shammas, 9 N.J. 321, 330 (1952). Similarly, 

Todaro's post-judgment submissions in support of his claim that a fraud upon 

the court was committed by Giordano or Manzo failed to "'demonstrate[], clearly 

and convincingly, that a party ha[d] sentiently set in motion some 

unconscionable scheme calculated to interfere with the judicial system's ability 

[to] impartially . . . adjudicate a matter by improperly influencing the trier or 

unfairly hampering the presentation of the opposing party's claim or defense.'" 

Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 298 (App. Div. 

2010) (quoting Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 

251 (App. Div. 2007)). While as Todaro argues a fraud on the court may occur 

where a party commits perjury, whether through oral or written testimony, see

Von Pein v. Von Pein, 268 N.J. Super. 7, 15-16 (App. Div. 1993), perjured 

testimony alone is generally not sufficient to set aside a judgment. Shammas, 9 

N.J. at 329-30. In any event, here, the trial judge was fully aware of Giordano's 

inconsistent letters, emails, and testimony, including the March 28, 2008 emails,
18 A-0324-16T3

when he decided the case and gave it the weight he deemed appropriate. There 

has been no new evidence presented that warrants any further consideration.

We have also considered Todaro's remaining arguments and conclude that 

they are without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.