SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-2855-17T2

 A-4616-17T2

AMERICAN FABRIC 

PROCESSORS, LLC, d/b/a

AMERICAN FABRIC

PROCESSORS; AMERICAN 

FABRIC PROCESSORS, LLC,

d/b/a AMERICAN FABRIC

PROCESSORS as assignee of 

CORAL DYEING & FINISHING 

CORPORATION, d/b/a CORAL DYEING 

& FINISHING CORPORATION 

and THE JDM GROUP LLC, 

d/b/a JDM LLC,

Plaintiffs-Appellants,

v.

VERLAN FIRE INSURANCE

COMPANY and SILK CITY 

STONE, LLC,

Defendants-Respondents.

GREEN POND LLC (formerly Carson

& Gebel Ribbon Company LLC),

Plaintiff,

NOT FOR PUBLICATION WITHOUT THE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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A-2855-17T2

v.

JDM GROUP, LLC, AMERICAN

FABRIC PROCESSORS, LLC, and

JACOB BINSON, 

Defendants.

FRED DOMBROW and CORAL

DYEING AND FINISHING

CORPORATION,

Plaintiffs-Respondents,

v.

JACOB BINSON, AMERICAN

FABRIC PROCESSORS and

JDM GROUP,

Defendants-Appellants.

Argued (A-2855-17) and Submitted (A-4616-17) 

October 16, 2019 – Decided August 3, 2020

Before Judges Fisher, Accurso and Gilson.

On appeal from the Superior Court of New Jersey, 

Law Division, Passaic County, Docket Nos. L-2384-

15 and L-0495-16; and L-2357-16.

Richard A. Murray argued the cause for appellants in 

A-2855-17.

Matthew J. Lodge argued the cause for respondent 

Verlan Fire Insurance Company in A-2855-17 
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A-2855-17T2

(Kennedys CMK LLP, attorneys; Matthew J. Lodge 

and Joshua Scott Wirtshafter, of counsel and on the 

brief).

Michael C. Salvo argued the cause for respondent Silk 

City Stone, LLC in A-2855-17 (Ahmuty Demers & 

Mc Manus, attorneys; Michael C. Salvo, on the brief).

Ferro and Ferro, attorneys for appellants in A-4616-17

(Nancy C. Ferro, on the briefs).

Welt & Kuzemczak, LLC, attorneys for respondents in 

A-4616-17 (David M. Welt, of counsel and on the

brief).

PER CURIAM

Throughout the record in these appeals, the matters are referred to as 

complex. They are not, however, as complex as they are convoluted, a 

circumstance arising from the fact that these two non-jury cases, as well as a 

related third not before us, were not consolidated or decided by a single judge

but decided by different judges at different times.

1

 Of the two before us, one 

was tried and the other disposed of summarily. After our close examination of 

the record in light of the parties' arguments, we affirm the former (Dombrow v. 

Binson) and reverse the summary judgment in the latter (American Fabric v. 

Silk City). 

1 We decide both these appeals by way of a single opinion.
4

A-2855-17T2

I.

To understand the bases and dispositions of these cases, some 

consideration must be given to Coral Dyeing & Finishing Corp.'s history. The 

company was started in 1955 and operated in Paterson for many years by the 

grandfather and father of Fred Dombrow, Jr., who started with the business in 

1981 as a mechanic. By the business's peak in the late 1990's, it had 120 

employees, but apparently the North Atlantic Free Trade Agreement, which 

seriously affected the textile industry in this country, caused the business's

decline, starting in 2002. In 2009, Dombrow was required to decide whether 

he should borrow money to "retool to keep the place going" or "shut it down." 

Out of dedication to the business and its employees, he chose the former 

course and obtained a $1,250,000 loan from Metro Funding Corporation 

Partners, LLC. Dombrow executed a promissory note for the repayment and 

used Coral Dyeing's real estate as collateral. These funds were used to 

diversify the company's product lines, but those efforts proved ineffectual; the 

loan went into default, and Metro commenced a foreclosure action. With no 

other recourse, in 2013, Coral Dyeing filed a voluntary petition for bankruptcy 

under Chapter 11, and thereby stayed Metro's foreclosure action.
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A-2855-17T2

After the start of the bankruptcy proceedings, four parcels of Coral

Dyeing's real estate were sold to 555 E. 31 Paterson, LLC, for $2,100,000; the 

bankruptcy court approved the agreement. That buyer eventually chose not to 

go forward, but the sale was revived when that buyer, for $100,000, assigned 

its contract rights to JDM Group, an entity controlled by Jacob Binson. The 

amount of overdue property taxes to be paid were fixed by the bankruptcy 

court, but the closing was delayed and, with the continuing non-payment of 

taxes and the addition of interest and penalties, the amount due increased by 

$222,723.98 to a total of $1,114,592.74. Because, as the trial judge in 

Dombrow v. Binson recognized, the transaction was designed so that 

Dombrow was neither required to bring any cash to the closing nor receive any 

cash as a result of the closing, Binson faced a situation where for his entity, 

JDM Group, to receive title, a greater amount was due in order to satisfy the 

city's tax bill. This disconcerting circumstance caused, as the Dombrow v. 

Binson judge found, that Binson walked out of the May 2014 closing a number 

of times. Eventually, however, the transaction closed, although the precision 

normally expected in such a transaction was sorely lacking. For example, the 

closing statement, as the judge found, was "fraught with error, and is fraught 

with sloppiness" so as to be "worthless."
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A-2855-17T2

A few days after the closing – for no ostensible reason – Dombrow 

signed two promissory notes: one obligating him to pay JDM Group and 

Binson $66,500 by October 30, 2014, and the other obligating Dombrow and 

Coral Dyeing to pay JDM Group and Binson $400,000 no later than April 30, 

2016. The total amount due appears to be the approximate amount of the 

shortfall between what Binson and JDM Group were obligated to pay to obtain 

the property.

The following month, Coral Dyeing sold its business and remaining 

assets2to Binson's American Fabric for $466,500, the same amount as the 

promissory notes. The contract expressed the consideration exchanged by 

stating that the "Seller is indebted to the Buyer in the sum of $466,500" – a 

reference to the promissory notes3 – and, because "[t]he Seller is unable to 

effectuate payment of this loan [the Seller] has elected to transfer all of its 

assets to the Buyer in exchange for a release of the debt." 

2 The contract states that Coral Dyeing conveyed its "inventory, accounts 

receivable, fixtures, equipment, intellectual property, goodwill, trade name, 

trademarks, . . . . and all rights under any contract related to the Business."

3 According to Dombrow, the amount reflected the debt he owed to PNC Bank 

for a loan used to purchase Coral Dyeing machinery and also the debt on his 

own home. On the other hand, Binson testified that the amount reflected the 

property taxes not paid on the real property then transferred.
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A-2855-17T2

With the completion of these transactions, Dombrow became employed 

by American Fabric, which had become the operator of the business that had 

once been Coral Dyeing. The employment relationship started amicably but 

didn't last long. Dombrow and Binson soon encountered fundamental

differences about the business, causing Binson to terminate Dombrow's 

employment within the month. Binson claimed he paid Dombrow $1000 per 

week for the four weeks of employment, while Dombrow denied being paid 

anything. The termination of employment left Dombrow in financial straits;

he could not meet his obligations under the PNC Bank loan, see n.3, causing 

that bank to initiate foreclosure proceedings on his home and the initiation of 

his own bankruptcy proceedings.

As we observed at the outset, conveyances regarding Coral Dyeing, its 

property and assets, formed the background for three lawsuits, all commenced 

in the same vicinage but inexplicably never consolidated (except for two of 

them being consolidated for discovery purposes only): Dombrow v. Binson

(which is before us in A-4616-17), Green Pond LLC v. American Fabric (not 

before us), and American Fabric v. Silk City (which is before us in A2855-17).
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A-2855-17T2

Dombrow v. Binson – of which we will have more to say later in Section 

II of this opinion – alleged breach of contract, unjust enrichment, fraud and 

conversion arising from the transactions that led to the execution of the 

promissory notes and the sale of Coral Dyeing's business and remaining assets 

to American Fabric in June 2014.

Green Pond LLC v. American Fabric arises from another transaction. In 

January 2014, a few months before Coral Dyeing's and Dombrow's 

transactions with Binson, American Fabric and JDM Group, Green Pond's 

predecessor in interest (Carson and Gebel Ribbon Company LLC) purchased –

through the bankruptcy court – the equipment and assets, including inventory,

of Coral Dyeing. Green Pond brought suit against American Fabric and 

Binson to replevy the purchased equipment and property still located at Coral 

Dyeing's premises. While that action was consolidated with American Fabric 

v. Silk City, for discovery purposes, the claims were decided by a different 

judge than the judges who handled the cases now before us.

American Fabric v. Silk City is the third action. The orders in question 

in the appeal of that matter, which we will examine in Section III of this 

opinion, were entered by yet another judge. In that case, American Fabric 

claimed property it had purchased from Coral Dyeing through the conveyances 
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A-2855-17T2

at issue in Dombrow v. Binson was damaged by a subtenant, Silk City, and 

covered by an insurance policy issued by Verlan Fire. At the heart of that case 

is the question whether American Fabric was the rightful owner of that 

property or Green Pond, whose interests were considered in Green Pond v. 

American Fabric.

The obvious overlapping factual disputes in these three separated cases 

is most evident and troubling because the decisions in each case were rendered

by different judges. The judge in Dombrow v. Binson was required to

consider the impact of a partial summary judgment entered by another judge in 

Green Pond v. American Fabric, and yet another judge, in American Fabric v. 

Silk City, was required to consider the impact of the findings rendered by the 

judge in Dombrow v. Binson.

With this brief understanding of the convoluted collection of lawsuits 

brought concerning these parties and the various conveyances, we turn first to 

Dombrow v. Binson.

II.

In Dombrow v. Binson (A-4616-17), the judge conducted a bench trial in 

September and October 2017, and rendered findings of fact and conclusions of 
10 A-2855-17T2

law through an oral decision placed on the record on October 17, 2017. On 

December 12, 2017, the court entered judgment, which: 

• dismissed the breach of contract claim, the 

judge finding plaintiff failed to prove the 

alleged contract existed;

• found that defendants were unjustly enriched 

and awarded to plaintiffs $374,375 plus 

prejudgment interest for a total award of 

$376,067.28;

• denied plaintiffs' request for counsel fees;

• determined that plaintiffs conveyed to 

defendants American Fabric, JDM Group and 

Binson "all personal property and assets of 

Coral Dyeing," including "all machines, tools, 

equipment, fabric material and other assets of 

Coral Dyeing . . . except for the equipment and

personalty that was previously awarded to 

'Carson and Gabell [now Green Pond]'" in a 

partial summary judgment entered by another 

judge in another case;4and

• found that "[a]ny personal property owned by 

Fred Dombrow and not Coral Dyeing . . . is not 

transferred as part of this ruling " and that the 

4 By this time, the Green Pond judge had granted partial summary judgment 

and issued a writ of replevin in Green Pond's favor for the turnover or removal 

of the equipment and machinery from the premises. That was not a final 

disposition, since whatever else Green Pond purchased that remained on the 

premises was reserved for a later plenary hearing. Apparently, Green Pond 

was unable to obtain its property and sought damages for the loss incurred. 

We made inquiries and learned that the remaining issues in Green Pond v. 

American Fabric were amicably resolved.
11 A-2855-17T2

parties "have already resolved these issues or 

will, through their attorneys."

Defendants Binson, American Fabric, and JDM Group filed post-trial 

motions seeking consolidation and other relief, all of which were denied, and 

following which defendants filed their notice of appeal. When the Clerk of 

this court questioned whether all issues as to all parties had been resolved, the

appeal was dismissed and the trial judge entered an order that dismissed 

whatever claims remained, prompting the appeal in A-4616-17.

Defendants argue in this appeal that:

I. THE COURT ERRED IN AWARDING

DAMAGES TO PLAINTIFF ON THE CLAIM FOR 

UNJUST ENRICHMENT SINCE THE 

PROMISSORY NOTES WERE VALID AND THE 

CORAL DYEING EQUIPMENT AND MACHINERY

WERE NOT OWNED BY DEFENDANT.

II. THE COURT ERRED IN DENYING 

PLAINTIFF'S MOTION FOR RECONSIDERATION 

WHICH WAS BASED ON THE GROUND THAT 

PLAINTIFF WAS JUDICIALLY ESTOPPED FROM 

CLAIMING TO BE A CREDITOR AFTER 

DECLARING HIMSELF TO BE A DEBTOR IN THE 

BANKRUPTCY ACTION BASED ON THE SAME 

PROMISSORY NOTES.

III. THE COURT ERRED IN WRITING A BETTER 

AGREEMENT FOR THE PLAINTIFF THAN THE 

AGREEMENT INTO WHICH PLAINTIFF WAS 

ENTERED.
12 A-2855-17T2

We find no merit in these arguments.

To understand the case and our disposition, one must appreciate the trial 

judge's accurate and appropriate description of the closing of the real estate 

transaction as "sloppy" and the beyond-sloppy later sale of the remaining 

assets and business of Coral Dyeing. The judge recognized the realities of the 

situation and that Binson was unhappy with the course of the real estate 

transaction; Binson had originally agreed to pay $2,300,000, but with the 

delays prior to closing and the drastic increase in the amount of taxes owed to 

the city, the amount he was required to pay had greatly increased. It is here, as 

the judge found, that the parties got inventive:

[I]n this case those hidden costs took on a very 

different role. They weren't the normal hidden costs

and things of that sort, and the deal was structured in a 

way that Mr. Dombrow is bringing no money to the 

closing, nor is he going to walk away from the closing 

with any money. He's in bankruptcy court. He could 

have just abandoned the property, walked away from 

it.

. . . .

Now, Mr. Binson, I agree – I find it credible, was 

getting frustrated here, and as he said, there were three 

or four times . . . he was going to walk away from the 

deal, walked out of the room. But he was trapped in a 

way, because he had already given the 100,000 to [the 

original buyer], so, he had a big investment in it, and 

he had other monies invested in it, and so . . . he also 
13 A-2855-17T2

knew it was a good deal. So, there's a lot going on. A 

lot of dynamics here.

And as the time was going by, and Mr. Binson is 

being told you got to come up with more money, and 

more money, and more money, and I agree with what 

he said here on the witness stand, he said, what am I, 

the golden goose? I got to keep reaching into my 

pocket, and paying, and paying, and paying.

So, I can understand his frustration, but that's what 

happens in this type of scenario, and either you 

continue going along as the golden goose, or you bail 

out, and the longer you go along as the golden goose, 

and the longer you keep putting money in, if you bail 

out and walk away, you lose that money, and the big 

beneficiary becomes MFC[5] because they're the 

backup bidder. They come in and get it really, really 

cheap.

Binson, as the judge found, decided to stay with the transaction but 

remained desirous of getting the property at the original price:

So, due to the delays, and due to other things that were 

going on, Mr. Binson doesn't get this property for 2.3 

million, 2.4 if you add the 100,000 he paid for the 

assignment, he's up in the 2.7 range. There's a 

shortage of $400,000, and Mr. Binson believes that I 

shouldn't have to pay this 400,000. I got a contract at 

2.3 million. I shouldn't be paying 2.7 when I got a 

$2.3 million contract. Mr. Dombrow has got to come 

up with the 400,000. But Mr. Dombrow is in 

bankruptcy, and the judge spelled out what he was 

supposed to be paying, which I reviewed the 6,000, 

5 The reader will recall from the earlier discussion that MFC had commenced 

a foreclosure action that was stayed when the bankruptcy action was started.
14 A-2855-17T2

the 20, the 25,000. But, other than that, he's not 

coming to this closing with any money, nor is he 

walking out with any money.

So, it either was Mr. Binson was going to pay the 

added on expenses, caused by the delay, or otherwise, 

or Mr. Binson's remedy was to say I'm not buying this 

property. But he was, as I said earlier, he might have 

felt it's still a good deal, and maybe I can't bail out, 

because I got too much invested, but I think, and I 

firmly believe that although Mr. Binson believed it 

was Mr. Dombrow's obligation to come up with this 

$400,000 shortage, he's wrong in that respect, as a 

matter of law. Mr. Dombrow could not be required to 

come up with anything.

And, in fact, if Mr. Binson said to Mr. Dombrow you 

got to come up with some money, or I'm not buying it, 

Mr. Dombrow's response would have been, then don't 

buy it, because whether you buy it or not, I'm not 

getting a quarter out of this thing. So, don't buy it. 

He wasn't going to bring any money to the table, and 

he wasn't going to walk away with a dime in his 

pocket from this closing. 

It would appear that for these reasons the promissory notes were extracted 

from Dombrow and signed a few days after the closing. Then, when the Coral 

Dyeing assets were sold to defendants, the extinguishing of the notes 

represented the consideration Dombrow purportedly received from defendants 

for those assets.

Dombrow testified that he signed the notes so he could get the business 

back up and running with defendants as the business owner and he as a key 
15 A-2855-17T2

employee, expecting to be employed for at least five years and at a salary that 

would help him resolve his own personal debts. The judge recognized, 

however, that the parties were not on the same page as to their future 

relationship:

Mr. Dombrow is not represented by counsel [at the 

closing]. He's still suffering the almost blind desire to 

stay with the company and just agreed to a lot of 

things, probably because he had a carrot being dangled 

in front of him. I'll employ you . . . . 

This whole employment contract, I don't know what 

the terms were. I don't know if there was a contract. I 

don't know if there w[ere] discussions. Nothing is in 

writing. [Dombrow] says, "He gave me 30 percent of 

the business," [Binson] says, "No way." [Dombrow]

says, "I was going to be allowed to work in the lab and 

develop my new theories," Mr. Binson says, "No way. 

I wanted him to make sales." Mr. Dombrow says, "I 

was going to be paid a lucrative salary." Even though 

he was employed, I don't care if it's two weeks, four 

weeks, five weeks, six weeks, there was – there's no 

nexus to him being paid a $2,500 salary.

From all these and other parts of his overall findings, the judge's 

ultimate decision turned on his determination that there was no consideration 

for the transfer of the Coral Dyeing business and assets to Binson or American 

Fabric because the notes obligated Dombrow to pay something he did not owe 

and, so, the extinguishing of the notes, gave no consideration to Dombrow. As 
16 A-2855-17T2

the judge explained based on his consideration of the evidence and the parties'

credibility:

[A]fter much thought and much consideration to what 

the contract says about the indebtedness, the fact of 

the matter is, there was no indebtedness at that time. 

Despite the fact that Mr. Dombrow agreed, foolishly, 

that, yes, I owe you 466,000 and I'll sign these two 

notes, which then you could hold against me so that I 

don't beat you and not give you the employment I'm 

promising you, the – it's a myth. It doesn't exist. 

There was no indebtedness. Mr. Binson unfortunately 

got hit with having to pay a lot more than he hoped to 

have to pay, and he was out some 400,000 at some 

point in this whole transaction. But it wasn't a debt 

that he was legally entitled to get the money back 

from Mr. Dombrow. And notwithstanding that, he 

commits Mr. Dombrow to agree to it.

. . . . 

So he agrees to sell his business for $466,500 and he 

gets nothing in return for it. What he gets is, in Mr. 

Binson's mind, well, he wiped out the money he owed 

me. But he never owed him the money. There was no 

consideration to support those notes.

In light of these findings, the judge viewed the overall transactions in 

this way. First, Binson purchased and received the real property. But he 

ended up paying more than he anticipated, so he sought to recoup that loss 

through the later transactions with Dombrow. He extracted the promissory 

notes for which there was no consideration and then extinguished the notes to 
17 A-2855-17T2

make it appear as if consideration was given for his obtaining the remaining 

assets of the business. Based on those findings, the judge concluded that the 

only equitable way of putting Dombrow in the position he should have found 

himself in was to apply unjust-enrichment principles.

The judge's extensive findings are grounded in evidence found credible. 

Because the trial judge was in the position of observing and assessing the 

witnesses' credibility and evaluating the weight of their testimony, we are 

obligated to defer to those findings unless convinced they are "manifestly 

unsupported by or inconsistent with" the evidence "so as to offend the interests

of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 

(1974). In cases where the facts are starkly disputed, we are particularly loath 

to second-guess a trial judge's findings. After close examination of the record, 

we conclude that the findings are fully supported by the evidence and 

testimony the judge was entitled to find credible and, therefore, we will defer 

to those findings.

The judge's application of unjust-enrichment principles was also 

appropriate here. These principles apply in cases where a plaintiff shows that 

a defendant "received a benefit" and "retention of that benefit without payment 

would be unjust." VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994); 
18 A-2855-17T2

see also Thieme v. Aucoin-Thieme, 227 N.J. 269, 288 (2016). Having reached 

this fundamental conclusion, the judge then painstakingly ascertained the 

extent to which defendants had been unjustly enriched in entering the 

judgment now under review.

Because the judge's factual findings are entitled to our deference and 

because the application of unjust-enrichment principles was appropriate in 

these circumstances, we reject defendants' arguments in A-4616-17. To the 

extent we have not specifically addressed any other aspects of defendants'

arguments, we find them without sufficient merit to warrant further discussion 

in a written opinion. R. 2:11-3(e)(1)(E).

III.

In the second appeal before us (A-2855-17), the record reveals that 

plaintiffs American Fabric and JDM Group filed their complaint against Silk 

City and Verlan Fire Insurance Company in July 2015, alleging that in June 

2014 American Fabric purchased certain property and assets of Coral Dyeing

and became, as it alleged, the "assignee of" Coral Dyeing, while JDM Group 

claimed that in May 2014 it obtained a quitclaim deed from Coral Dyeing and 

became the owner and landlord of the real property in Paterson. At those 
19 A-2855-17T2

premises, Coral Dyeing had both operated a dye house and a storage area, 

which housed hundreds of rolls of fabric.

Plaintiffs American Fabric and JDM Group alleged that from January 

2013 to August 2014, defendant Silk City sublet part of the premises, where it 

conducted a business of mixing and cutting cement and stone products. 

Plaintiffs assert that Silk City's business generated debris that infiltrated the 

premises and caused damage to their property, including the fabric rolls, which 

were allegedly conveyed to American Fabric by Coral Dyeing. Plaintiffs'

complaint against Silk City alleged negligence, nuisance, and trespass. 

Plaintiffs also asserted a breach of contract claim against Verlan Fire, which 

issued a property damage policy to Coral Dyeing for the period between

September 2013 and September 2014, that named plaintiffs as additional 

insureds.

Early in the litigation, plaintiffs moved to compel Silk City and Verlan

to inspect the fabric rolls so as to preempt a spoliation defense. The motion 

was granted in January 2016 but the record reveals, without explanation, that 

the parties consented to the vacating of that order the following month. Then, 

in November 2016, plaintiffs moved for an order that would permit them to 
20 A-2855-17T2

"discard their damaged business personal property" that would preclude any 

party from "asserting a spoliation defense." This motion was denied.

In May 2017, Silk City moved for summary judgment; Verlan joined in. 

At the same time, Verlan moved for dismissal, claiming a spoliation of 

evidence; that is, that allegedly damaged fabric rolls were disposed of, or sold,

and that others were added to the inventory, thereby precluding the opportunity 

to assess or understand the damages claimed. There was also a further impact 

on ascertaining which rolls were damaged as a result of Binson having 

disposed of Coral Dyeing's computers, which had been used to track the 

movement of fabric rolls, after the June 2014 transaction. The record was also 

rendered unclear as to American Fabric's right to seek damages by the fact that 

there was no clarity as to which fabric rolls were conveyed in the January 2014 

transaction with Green Pond's predecessor and which came into Coral Dyeing's 

possession after January 2014 that it would ostensibly have been free to 

convey to American Fabric in June 2014.

The judge denied both motions in June 2017. In denying summary 

judgment, the judge identified a number of problems he saw with the case, 

including the impact of Green Pond v. American Fabric and the uncertainties 

about ownership of the allegedly damaged fabric rolls for which plaintiffs 
21 A-2855-17T2

sought relief in this case. In his written decision, the judge labeled plaintiffs'

case "weak or problematic" but ultimately, because of the summary judgment 

standard, which obligated him to provide plaintiffs with all the legitimate 

inferences that might arise from the facts, Brill v. Guardian Life Ins. Co. of 

Am., 142 N.J. 520, 540 (1995), the judge allowed the case to proceed. As for 

the spoliation argument, the judge appears to have found spoliation but 

concluded that it did not immediately appear that dismissal was required; he 

instead left for later disposition – after a plenary hearing – whether or to what 

extent there should be a sanction for any spoliation of evidence.

The record on appeal reveals that the judge's efforts to move this case 

toward a trial became stymied by the applications by plaintiffs' then attorney to 

be relieved. The attorney's first motion was denied but a later motion, which 

was based on plaintiffs' alleged refusal to cooperate in the completion of 

discovery, was granted in November 2017. The judge also stayed the action 

for thirty days to allow for the retention of new counsel and a trial date was set

to occur in mid-January 2018.

The spoliation hearing remained scheduled but did not take place 

because of plaintiffs' situation with its new counsel. That prompted the 
22 A-2855-17T2

following colloquy between the trial judge and Binson, who appeared pro se, 

in December 2017:

THE COURT: I've been trying this – I'm trying to 

look at – I mean, I initially was setting a hearing on 

the spoliation back in August. And here we are, it's 

almost January, and we still don't have this 

reconsideration[6] decided because of your dragging 

your feet with your lawyer. And maybe what should 

have happened, maybe he shouldn't have been relieved 

if it was going to cause this kind of a problem. 

MR. BINSON: Well, that's the problem I have with 

the lawyer –

THE COURT: Well, obviously you created a problem 

with your lawyer, or else he wouldn't have asked to 

get out of the case. Because I know, if I go forward – I 

know what I'm thinking right now, and I know if I go 

forward, whatever I do is just going to be reversed, 

because somebody is going to say I didn't give you the 

opportunity to be represented by counsel. This is 

becoming a farce. It's not fair to the other side. They 

have been prepared. They have been ready to go with 

this thing for months. For months.

Following that the judge turned his attention to the merits themselves, 

suggesting a change in tune regarding the defendants' prior application for 

summary judgment:

THE COURT: The underlying matter, I denied 

summary judgment. Now, I'm telling you that I'm 

thinking I may reverse that. Based on everything that 

6 Defendants had moved for reconsideration in the interim period.
23 A-2855-17T2

I now have in the record which clearly shows there is 

not going to be anything forthcoming to show what 

fabrics or inventory actually came [to Coral Dyeing] 

after the [January 2014] sales agreement [and prior to 

the June 2014 transaction].

[Emphasis added.]

In recognizing the impropriety of considering defendants' pending motion 

without plaintiffs having counsel, the judge nevertheless expressed that he was 

"inclined – I can tell you right now my inclination is to grant the application"

for reconsideration.

Plaintiffs' new attorney entered an appearance in late December, 2017, 

and requested an adjournment of the reconsideration motion that had been 

scheduled for early January 2018, as well as an adjournment of the trial 

because of his longstanding vacation plans. In January 2018, the judge denied 

the adjournment requests, granted the reconsideration motion, and, in 

reconsidering, granted summary judgment in favor of defendants.

In appealing, plaintiffs present the following arguments:

I. THE COURT BELOW ERRED IN GRANTING 

DEFENDANTS' MOTIONS FOR RECONSIDERATION WITHOUT A LEGAL OR FACTUAL BASIS 

ON JANUARY 2, 2018 AFTER DENYING THEM 

ON THE RECORD ON AUGUST 11, 2017.
24 A-2855-17T2

A. Neither Defendant Introduced New Or 

Additional Information To The Court's 

Attention.

B. The Motions For Reconsideration Are 

Merely An Attempt At Having A Second 

Bite Of The Apple.

C. The Trial Court's Rulings Granting 

The Motions For Reconsideration Which 

Reversed The Court's Prior Rulings 

Denying Summary Judgment And 

Reconsideration Were Not Based On 

Credible Evidence In The Record.

II. THE COURT ERRED IN REFUSING TO GRANT 

PLAINTIFFS' COUNSEL'S APPLICATION FOR 

ADJOURNMENT.

We reject Point II, finding it has insufficient merit to warrant further 

discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that trial 

courts have considerable discretion when ruling on adjournment applications, 

Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003), and we discern 

no abuse of discretion in the denial of an adjournment here, particularly when 

it was plaintiffs who had already delayed the proceedings by swapping 

attorneys, and particularly since plaintiffs have not shown how they were 

prejudiced. See State v. Miller, 216 N.J. 40, 47 (2013); Smith v. Smith, 17 

N.J. Super. 128, 133 (App. Div. 1951).
25 A-2855-17T2

We also find no merit in plaintiffs' arguments that the judge erred or 

abused his discretion in reconsidering his earlier denial of summary judgment. 

Rule 4:42-2 authorizes a judge – in the exercise of sound discretion – to revisit 

an interlocutory order at any time prior to entry of final judgment when 

required by the interest of justice. See Lombardi v. Masso, 207 N.J. 517, 534 

(2011). Without a doubt, the denial of summary judgment – the prior ruling 

that the judge reconsidered here – was interlocutory, see Gonzalez v. Ideal Tile 

Importing Co., 371 N.J. Super. 349, 356 (App. Div. 2004) (recognizing that 

"an order denying summary judgment . . . decides nothing and merely reserves 

issues for future disposition"), aff'd, 184 N.J. 415 (2005), and its 

reconsideration here was proper since final judgment had not yet been entered. 

Rule 4:42-2 does not, as plaintiffs' argument would suggest, require the 

submission of new or different material; a judge may revisit an interlocutory 

order when believing an earlier interlocutory ruling was mistaken.

We, thus, reject nearly the entirety of plaintiffs' arguments on appeal. In 

challenging the grant of reconsideration, plaintiffs have included only the most 

cursory suggestions about the existence of genuine factual issues that 

warranted a trial. That is, plaintiffs have expended nearly all their energies 

into arguing that the judge shouldn't have reconsidered the denial of summary 
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judgment, and have said very little about whether, if reconsideration was 

appropriate, the judge wrongly decided to reverse himself and grant summary 

judgment. Defendants – doubtless for sound tactical reasons – made little or 

no attempt to demonstrate that summary judgment was appropriately entered, 

choosing instead to simply respond to plaintiffs' meritless argument that the 

judge was not authorized or abused his discretion in reconsidering his prior 

ruling.

We are mindful – and plaintiffs' counsel should have been mindful too –

that it was plaintiffs' "responsibility to refer us to specific parts of the record to 

support their argument" and that they could not "discharge that duty by 

inviting us to search through the record ourselves." Spinks v. Twp. of Clinton, 

402 N.J. Super. 465, 474 (App. Div. 2008); see also State v. Hild, 148 N.J. 

Super. 294, 296 (App. Div. 1977). To seek our overturning of the disposition 

of which they were aggrieved, plaintiffs were obligated to show an error in the 

judge's grant of summary judgment. Instead, plaintiffs have almost entirely 

limited their argument to the question of reconsideration without, but a few 

generalities and quotations from the judge's earlier decision, explaining why 

the grant of summary judgment was erroneous. Because we find nothing 

wrong with the judge's willingness to reconsider his earlier ruling, the 
27 A-2855-17T2

inadequacies in plaintiffs' presentation on appeal leave us in the unhappy place 

of choosing between, on the one hand, affirming based on our view that 

reconsideration was not an abuse of discretion, or, on the other, scanning the 

record ourselves to determine whether summary judgment was properly 

granted. With some misgivings, we conclude that the administration of justice 

is better served in this instance by our independent review of the parties'

factual assertions on summary judgment despite the shortcomings in plaintiffs'

submissions in this court.

As defendant Silk City correctly recognizes, the summary judgment that 

concluded this matter was "at its core" based on two concepts: that a plaintiff 

"cannot sue for damages on goods it does not own" and "cannot go to trial 

without competent evidentiary damage proofs." These assertions, of course, 

are true, but it is far from clear whether it can be said – on this record – that 

plaintiffs cannot claim ownership of the allegedly damaged fabric rolls or that 

their proofs are insufficient as a matter of law.

As to the former proposition, the judge was required to deal with the 

judge's finding in Dombrow v. Binson that American Fabric was the owner of 

the fabric rolls located at the premises. To be sure, the documentation 

concerning the transaction between Coral Dyeing and Green Pond's 
28 A-2855-17T2

predecessor – particularly the UCC financing statement – might suggest that 

these fabric rolls were conveyed to Green Pond's predecessor in January 2014. 

But the Dombrow v. Binson judge determined that the fabric rolls in the 

premises belonged to plaintiffs and the judge in Green Pond v. American 

Fabric found only that the equipment and machinery belonged to Green Pond

without determining whether Green Pond was also the rightful owner of any 

fabric rolls still in the premises. If there is some finer point to put on the 

dispute about ownership as it arises in this case, or if there is some reason – as 

the judge here held – that the findings in the other cases are not binding on 

these defendants, we leave those matters for another day. As a matter of 

summary judgment, there is – at best – a dispute about whether plaintiffs own 

the fabric rolls for which they seek damages here.

Moreover, even if fabric rolls were conveyed to Green Pond's 

predecessor by way of the January 2014 transaction, and even if the finding in 

Dombrow v. Binson about ownership should not be binding on Silk City or 

Verlan – they not being parties to the other cases – it seems clear that any rolls 

added to inventory after the January 2014 transaction would not be 

encompassed by that transaction but would have, instead, been transferred to 

plaintiffs here in June 2014. Although the judge determined that plaintiffs 
29 A-2855-17T2

"cannot prove what inventory was added after" the January 2014 transaction, 

there is no clear explanation as to why it was fair for him to draw such a 

conclusion. In fact, in responding to summary judgment, plaintiffs asserted 

that after the January 2014 transaction, "Coral carried its own inventory 

separate from [Green Pond's predecessor's] inventory . . . and that [Green 

Pond's predecessor's] portion of the inventory was removed from the subject 

property . . . in June 2014." If there is truth to this assertion – and we assume 

its truth for purposes of summary judgment – then it could be presently 

inferred that the allegedly damaged fabric rolls at the premises in or after June 

2014 are the rightful property of plaintiffs.

Contrary to the judge's statement in his two-page written decision in 

June 2017, when summary judgment was denied, about the apparent 

difficulties plaintiffs would face in attempting to prove ownership and damage, 

the judge asserted in his three-page January 2018 written opinion that, "[u]pon 

further reflection," those same problems now appear to be insurmountable and, 

if attempted, "would invite the jury to speculate." He provided little 

explanation for this conclusion. In reversing summary judgment and in 

remanding the matter for further proceedings, we agree that plaintiffs will be 

put to the difficult task of proving that any damaged fabric rolls belong to 
30 A-2855-17T2

them and not to Green Pond, that they were damaged after being conveyed in 

June 2014 (because there appears no genuine doubt that the rolls were 

conveyed "as is" and it is conceivable that some or maybe all the damage 

allegedly caused by Silk City occurred prior to June 2014), and the quantum of 

any such damage. In opposing summary judgment on the earlier occasion,

plaintiffs provided expert analysis of the alleged property and its alleged 

damage. Plaintiffs were not obligated – in opposing summary judgment – to 

actually prove their case, only whether there is a genuine factual basis for their 

claims. At the summary judgment stage, a court must not be concerned with 

the evidence's weight or whether those who have yet to testify are credible. 7

We recognize that plaintiffs may have a difficult time demonstrating the 

elements of their claims against Silk City and Verlan, but we do not see why 

they should be deprived of that opportunity. If, as the motion judge believed, 

the jury would be left to speculate on what it is that plaintiffs must prove after 

hearing plaintiffs' expert's testimony and after hearing Binson or any other 

individual with personal knowledge attempt to provide a factual basis for the 

7

In originally denying summary judgment in June 2017, the judge stated in 

his written opinion that he "f[ou]nd[] the credibility of Jacob Binson to be 

questionable." He did not explain nor is it clear to us why the judge made such 

an observation or how the judge was able to assess Binson's credibility by way 

of the summary judgment submissions.
31 A-2855-17T2

expert's views, then if and when defendants move for an involuntary dismissal, 

the judge will be in a far better position to opine on the evidence's sufficiency 

than anyone can say at the present time. But we cannot agree it has been 

demonstrated that the difficulties plaintiffs will face, in seeking to prove their 

case, are so onerous that, as a matter of summary judgment, their claims must 

be short-circuited prior to trial.

So, in short, we reverse the summary judgment entered in favor of 

defendants and remand for further proceedings.

IV.

To summarize our disposition of these appeals, in Dombrow v. Binson

(A-4616-17), we affirm the judgment and orders under review. In American 

Fabric v. Silk City (A-2855-17), we affirm the orders under review insofar as 

they denied plaintiffs' request for an adjournment and insofar as they granted 

reconsideration, but we reverse insofar as the court, in reconsidering, granted 

summary judgment in favor of defendants, and we, therefore, remand for 

further proceedings.8 We do not retain jurisdiction. 

8 No one has argued that the trial judge erred in scheduling a hearing to 

consider further the spoliation issues. Because the judge ultimately granted 

summary judgment, he concluded there was no need to conduct the spoliation 

hearing. No one appealed that disposition. Now that we have reversed 

summary judgment, the door is opened again to those spoliation issues.