SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO S . A

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A

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A MERICAN 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 CORP ORATION , d/b/a CORAL DYEING & FINISHING CORPORATION and THE JDM GROUP LLC, d/b /a JDM LLC, Plaintiffs

- Appell ants,

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GREEN POND LLC (formerly Carson & Gebel Ribbon Company LLC), Plaintiff, NOT FOR PUBLICATION WITHOUT THE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

. " A lthough it is posted on t he internet , this opin i on is binding only on the parties in the case a n d i ts use in other cases is limited

. R

. 1:36

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v. JDM GROUP, LLC, AMERICAN FABRIC PROCESSORS, LLC , and JACOB BINSON, Defen d ants.

FRED DOMBROW and CORAL DYEING AND FINISHING CORPORATION, Plaintiffs

- Respondents,

v. JACOB BINSON, AMERICAN FABRIC PROCESSORS and JDM GROUP, Defendants

- Appellants.
Argued (A

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- 17) and Submitted (A

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- 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

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- 16

. Richard A. Murray argued the cau se for appellant s in A

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- 17. Matthew J. Lodge argued the cause for respondent Verlan Fire Insurance Company in A

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- 173 A

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- 17T2 (Kennedys CMK LLP, attorneys; Matthew J. Lodge and Joshua S cott Wirtshafter, of couns el and on the brief). Michael C. Salvo argued the cause for responde nt Silk City Stone, LLC in A

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- 17 (Ahmuty Demers & Mc Manus, attorneys; Michael C. Salvo, on the brief). Ferro and Ferro, attorneys for appellants in A

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- 17 (Nancy C. Ferro, on th e briefs)

. Welt & Kuz e mczak, LLC, attorneys for respondents in A

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- 1 7 (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 cir c umstance arising from the fact that these two non - jury cases , as well as a related third not before us, were no t consolidated or decided by a single judge but decided by different judges at different times

. 1 O f the two before us, o n e was tried and the ot h er disposed of summarily. After our close exa min ation of the record in light of the parties ' arguments, we af firm 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

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. To understand the bases a nd dispositions of these cases, some
considera tio n 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 busine ss ' 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 busin ess ' s decline , startin g in 2002. In 2009, Dombrow was required to de cid e whether he should borrow money to "retool to ke ep 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, 25 0,000 loan from M e tro Funding Corporation Partners, LLC. Dombro w e xecuted a promissory note for the repayment and

u sed Coral Dyeing ' s real estate as collateral. The se funds were used to diversify the company ' s product lines , but t h os e efforts proved ineffectual; the
loan went into default , and Metro commenced a forec los ure action. With no other recourse , in 2013 , Cor al Dyeing filed a voluntary petition for bankruptcy under Chapter 11, and thereby stayed Metro ' s foreclosure action.5 A

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After the start of the bankruptcy procee d ings, four parcels of Coral Dyeing ' s real esta te 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 bu yer, for $100,000, ass i gned its contract rights to JDM Group, an enti ty controlled by Jacob Binson. The amount of overdu e property taxes to be paid were fixed by the bankruptc y court, but the closing was delayed and, with the continuing non

- payment of
tax es and the addition of interest and penalties, the amount due increas ed by $222, 723.98 to a total of $1,114,592.74 . Beca use, 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 n o r receive any cash as a result of the closing, Bi nson 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 j udge found , that Binson walked out of the May 201 4 closing a number of times. Eventually, however , the transaction closed , although the precision normally expected in such a transaction was sorely lacking. For example, t he closing statement, as the judg e found, was "fraught with error, and is fraugh t

w ith sloppiness" so as to be "worthless

. "6 A

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A few da ys 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
Cor al Dyeing to pay JDM Group and Binson $400,000 no la ter 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 t o obtain the property

. The following month, C ora l Dyeing sold its business and remaining
assets 2 to Binson ' s American Fabric for $466,500, the same amount as the promissory notes. Th e contract expressed the consideration exchanged by
stat ing that the "S e ller is indebted to the Buyer in the sum of $4 66, 500"

– a reference to the promissory notes 3

– 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 Buye r in exch ange for a re l ease of the debt."

2 The contract states that C oral Dyeing conveyed its "inventory, accounts r e c ei vable, 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 d ebt he owed to PNC Bank for a loan used to purc h a se 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 tra nsf erred.7 A

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With the completion of t hes e transactions, Dombrow became employed by American Fabric, which had become the operator of the business that had once been Coral Dyeing . Th e employment relationship start ed amicably but didn ' t last long. Dombrow and Binson soon encountered fundament al differe nces 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, whil e Dombrow denied being paid anything . The termination of employment lef t Dombrow in financial straits; he could not meet his obligation s under the PNC Bank loan, see n.3, causing that bank to initiate foreclosure proceedings on his home and the initiation of his o wn bankruptcy proceedings. As we observed at the outset, co nve yances 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 consoli d ated for discovery purposes only): Dombrow v. Bi nson (which is before us in A

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Dombrow v. Binson

– of w hich we w ill have more to say later in Section II of this opinion

– a lle ged 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 remai ning assets
t o 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 predece ssor in inter e st (Carson and Gebel Ribbon Company LLC ) purch ase d

– 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 . Whi le 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 case s now before us

. American Fabric v. S ilk City is the third action. The orders in q ues tion 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 proper ty it had purch ased from Coral Dyeing through the conveyances9 A

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at issue in Dombrow v. Bi nson 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 rightfu l owner of that
proper t y or Green Pond, whose interests were consider ed 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 cas e were rendered by different judges. The judge in Dombrow v. Binson was required to

co nsider 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 re quired to consi der the impact of the f indings rendered by the judge in Dombrow v. Bi nso n . With this brief understanding of the convoluted collection of lawsuits brought concerning these parties and the various conveyances, we turn first to Dombrow v. Binso n . II

. In Dom brow v. Binson (A

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law through an oral decision placed on the record on October 17, 2017. On December 12, 2017, the court entered ju dgment, which:

• dismis s ed the breach of contract claim, the judge findi n g plaintiff failed to prove the alleged contract existed;

• found that defendants were unjustly enriched and awarded to p laintiffs $374,375 plus prejudgment interest for a total award o f $376,067.28;

• denied plaintiffs ' request for counsel fees;

• determine d t hat plaintiffs conveyed to defendants American Fabric, JDM Group and Binson "all personal property and assets of Coral Dyeing," including "all machines, tools, equipment, fabric mate rial and other assets o f Coral Dyeing . . . except for the equipment an d p ersonalty that was previously awarded to

' Carson and Gabell [now Green Pond] ' " in a partial summary judgment entered b y another judge in another case; 4 and

• found that "[a]ny persona l property owned by Fr e d Dombrow and not Coral Dyeing . . . is not tran s fe rred as part of this ruling " and that the

4 By this time , the Green Pond judge had granted partial summa r y j udgment 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 wha tever else Green Pond p urchased that remained on the premises was rese r v ed 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 is sues in Green Pond v. A merican Fabric were amicably resolved.11 A

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- trial
motions seekin g consolidation and other relief, all of which we r e 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 , th e appeal was d ismissed and the trial judge entered an order that dismissed whatever c l ai ms remained, prompting the appeal in A

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. Defendants argue in this appeal that:
I. THE COURT ERRED IN AWARDING DAMAGES TO PLAINTIFF ON THE CLAIM FOR UNJUST ENRICHMENT SINCE TH E PROMISSORY NOTES WER E VALID AND THE CORAL DYEING EQUIPMENT AND MACHIN E RY 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 CLAIMI NG TO BE A CREDITOR AF T ER DECLARING HIMSELF TO BE A DEBTOR IN THE BANKR U PT CY 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

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We find no merit in these argumen t s. To understand the case and our disposition, o ne 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

as sets and business of C o ral Dyeing. The judge recognized the realities o f 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 t h e am ount of taxes owed to the city, the amount h e w as 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 were n ' t the normal hidden c osts and things of that sort, and the deal was s t ru ctured 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 aba ndoned the property, w a lked away from it.

. . . . Now, Mr. Binson, I a gree

– 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, b ecau se he had already given the 100,000 to [the o ri ginal buyer] , so, he had a big investment in it, and he had other monies invested in it, and so

. . . he also13 A

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- 17T2 knew it was a good deal. So, there ' s a lot going on. A lot of dynamics here. And as the ti m e wa s going by, and Mr. Binson is being told you go t 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 i nto my pocket, and pay i ng, and paying, and paying. So, I can understan d h is 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 y ou k eep putting money in, if you bail out and wa l k 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, decid ed to stay with the tr a nsaction but remained desirous of getting the pr o pe rty 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, h e ' s up in the 2.7 range. There ' s a shortage of $ 4 00 ,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 w it h the 400,000. But Mr. Dombrow is in bankruptcy, an d the judge spelled out what he was supposed to be paying, which I reviewed the 6,000,

5 The r e a de r will recall from the earlier discussion that MFC had commenced a foreclosure action that was stayed when the bankruptcy action was started.14 A

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- 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 wi th any money. So, it either was Mr. Binson was goi n g 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 , a nd maybe I can ' t bail out, because I got too muc h i nvested, 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. Do m brow could not be required to come up with anyth i ng . 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 whethe r you buy it or not, I ' m not getting a quarter out of this thing. So, d on ' 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 f or these reasons th e promissory notes w er e extracted from Dombrow and signed a few days af t er the closing. T hen, when the Coral Dyeing assets were sold to defendants, the extinguishing of the notes represented the consideration Dombrow purportedly received from defendants
f or those assets.
Do mb r ow testified that he signed the notes so he coul d g et the business back up and running with defendants as the business owner and he as a key15 A

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employee, expecting to be employed for at least five years and at a salary that would help h im resolve his own p er s onal debts. The judge recognized, however, that th e 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 an d j ust agreed to a lot of things, probably because h e 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 [e re ] discussions. Nothing is in writing. [Dombrow] sa ys, "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, "N o way. I wanted him t o 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, f ive weeks, six weeks, there was

– there ' s no nexus to him being paid a $2,500 sa lary. From all these and other parts of his overall findings, the jud g e ' s ultimate decision turn ed 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 note s obligated Dombrow to pay something he did not owe and, so, the exting u is hing of the notes, gave no consideration to Dombrow. As16 A

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the judge explained based on his consideration of the evidence and the parties ' credibility: [ A ] fter much tho ught and much co nsideration to what

th e contract says about the indebtedness, the fact o f 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 note s, which then yo u could hold against m e so that I don ' t beat you and not give you the e m pl oyment 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 ho ped to have to p ay, and he was out som e 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 t o sell his business fo r $466,500 and he gets nothing in return for it. W ha t 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 thes e findings, the judge v iewed the overall transactions in
this way. Fir s t, 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 wi th Dombrow. He extracted the promisso r y
notes for which there was no consideration and th en extinguished the notes to17 A

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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 t he only equitable way o f putting Dombrow in the position he should have fo und himself in was to apply unjust

- enrichment principles. The judge ' s extensive findings are grounded in evidence found credible. Because the trial judge wa s in the position of obs erving and assessing t h e witnesses ' credibility and evaluating the weig h t 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 offe nd the interests of justice." Rova Fa r ms Resort, Inc. v. Investors Ins. Co. , 65 N.J. 4 7 4, 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 recor d, we conclude t hat the findings are f u lly supported by the evidence and testimony the j ud ge 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 principle s apply in cases where a plaintiff shows that

a defendant "received a b e ne fit " and " retention of that benefit without payment would be unjust." VRG Corp. v. GKN Realty Corp. , 135 N.J. 539, 554 (1994);18 A

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see also Thieme v. Aucoin

- Thieme , 227 N.J. 269, 288 (2 016). Having reached
t his fundamental conclusion, the judge then pains t ak ingly ascertained the extent to which defendants had been unjustly enriched in entering the judgment now under review. Because the judge ' s factual findings are entit led to our defer ence and
because the a p plication of unjust

- enrichment principles was ap p ro priate in these circumstances, we reject defendants ' arguments in A

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- 17 . To the extent we have not specifically addressed any other aspects of defendants '
argume nts, we find the m without sufficient m e rit to warrant further discussion in a written o p in ion. R. 2:11

- 3(e)(1)(E).
III

. In the second appeal before us (A

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p laintiff s American Fabric and JDM Group filed their complaint against Silk City a nd Verlan Fire Insuran c e Company in July 2015, alleg ing that in June
20 1 4 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 C oral Dyeing and became the owner and landlord of th e real property in Paterson . At those19 A

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premises, Coral Dyeing had both operated a dye house and a storage area, which housed hu ndreds of rolls of fabric.
Plaintiffs American Fabric a nd JDM Group alleged t h at from January 2013 to August 2014, defendant S i lk City sublet part of the premises, where it conducted a business of mixing and cutting cement and stone products.
Plaintiff s a ssert that Silk City ' s business generated debris that i nfiltrated the premise s and caused damage to their property , inc luding t he fabric rolls , which

were allegedly conveyed to American Fabric by Coral Dyeing

. Plaintiffs ' complaint against Silk City alleg ed negligence, nuisance, and trespass

. Plaintiffs also asserted a breach of c ontract claim against Verlan Fire, which issued a p roperty damage policy to Coral Dyeing for the period between September 2013 and September 2014, that named plaintiffs as additi onal insureds. Early in the litigation, plaintiffs mov ed to compel Silk City and Verlan to inspect the fabric rolls so as to p re empt a spoliation defense. The motion was granted in January 2016 but the record reveals, without explanation, that the partie s consented to the vacating of that order the following month. Then, in Nove m ber 2016, plaintiffs moved for an order that wou l d permit them to20 A

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"discard their damaged business personal property" that would preclude any party from "asserting a spoliation de fense." This motion was denied. In May 2017, Silk Cit y moved for summary ju d gment; Verlan joined in. At the same time, Verl a n 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 p recluding the opportun i ty
to assess or understand the damages claimed. Th ere was also a further impact on ascertaining which rolls were damaged as a result of Binson having dispos ed of Coral Dyeing ' s computers , which had been used to track the movement of fabric rolls, after t h e June 2014 transaction. The record was also

re n de red unclear as to American Fabric ' s right to seek damages by the fact that there was no clarity as to which fabric rolls were c onveyed in the January 2014 transaction with Green Pond ' s predecessor and whi c h came into Coral Dyeing ' s possession after Janu a ry 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 identifi e d a number of problems he saw with the case , including the impact of Gr e en Pond v. American Fabric and the uncertainties about ownership of the allegedly damaged fabric rolls for which plaintiffs21 A

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sought relief in this case

. In his written decision, the ju dge labeled plaintiffs ' case "weak or problematic" but ultimately, beca u se of th e 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 ( 1 995) , the judge allowed the case to proceed. As fo r 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 disposit ion

– after a plenary h earing

– whether or to what extent there should b e a sanc tion 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 ' t hen attorney to be rel i eved. The attorney ' s first motion was denied bu t 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 r etention 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 the22 A

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following collo quy between the trial j udge and Binson, who appeared pro se,
in Decembe r 2 017 :

T HE 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 th i s reconsideration [ 6 ] decided because of your dra g gi ng yo ur 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 wi t h the lawyer

– THE COURT: Well, obviously you c r ea ted 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 forwar d, whatever I do is ju s t going to be reversed, because somebody is goin g t o 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 t u rn ed 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 su mmary judgment. Now, I ' m telling you that I ' m thinking I may reverse t h at

. Based on everything that

6 Defendants had moved for reconside rat ion in the interim per i od.23 A

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- 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 Dyein g] after the [January 2 014] sales agreement [and prior to the June 2014 tr ansaction]

. [Emphasis added.] In recognizing the impropriety of consider ing defendants ' pending motion without plaintiffs having counsel, the judge nevertheless expressed that he w as "inclined

– I can t e ll you right now my inclination is to grant the a pp lication" for reconsideration. Plaintiffs ' new attorney entered an appearance in late December, 2017, and requested an adjournment of the reconsideration motion that had been schedu led for early January 2 018 , as well as an adjournment o f the trial beca u se 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 prese nt the following ar guments: I. THE COURT BELOW ERRED IN GRANTING DEFENDANTS ' MOTIONS FOR RECONSIDER

ATION WITHOUT A LEGAL OR FACTUAL BASIS ON JANUARY 2, 2018 AFTER DENYING THEM ON THE RECORD ON AUGUST 11, 2017.24 A

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- 17T2 A. Neithe r Defendant Introduced New Or Add itional Informat i on 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 Re consideration Which Re v ersed The Court ' s Prior Rulings Denying Summary J ud gment 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 h a s insufficient merit to warrant further discussi o n in a written opinion. R. 2:11

- 3(e)(1)(E). We add only that t rial courts have considerable discretion when ruling on adjournment applications, Kosmowski v. Atl

. City Med. Ctr. , 175 N.J. 568 , 575 (2003), a nd we discern no abuse of discretion in the deni a l 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 w ere prej udiced

. See S t ate v. Miller , 216 N.J. 40, 47 (2013); Smith v. S mi th , 17 N.J. Super. 128, 133 (App. Div. 1951)

.25 A

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We also find no merit in plaintiffs ' arguments that the judge erred or abused his discretion in reconsidering his earlier denial of sum mary jud gment. Rule 4 : 42

- 2 authorizes a judge

– in the exercise of sou n d 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) . Witho ut a doubt, th e denial of summary judgment

– the prior ruling
t h at 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 judg ment . . . decides not h ing and merely reserves issues for future dispos i ti on"), 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
submissio n of new or different material; a judge may revis i t an interlocutory order when believ ing an earlier interlocutory ruling was mistaken. We, thus, reject nearly the entirety of plaintiffs ' arguments on appeal . In challenging the grant of reconsideration, p l aintiffs have included only the most
cursory sug g es tions about the existence of genuine factual issues that warranted a trial. That is, plaintiffs have expended nearly all their energies into arguing that the ju dge shouldn ' t have re considered the denial o f summary26 A

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judgment, and have said very little ab o ut whether, if reconsideration was appropriate, the judge wrongly decided to reverse himself and grant summary judgment. Defendants

– doubtless for sound tactical reasons

– made littl e or no attempt to dem o nstrate that summary judgment was appropriately e nt ered, 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 mindfu l

– and plaintiffs ' co u nsel should have be en mindful too

– that it was p la intiff s ' "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 reco rd ourselves." Spinks v. Twp. of Clinton , 402 N.J. Super. 465, 474 (Ap p . Div. 200 8); s ee 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 j u dge ' s grant of summary judgment. Instead, plain t if fs have almost entirely limited their argument to the question of reconsideration without, but a few generalitie s and quotations from the judge ' s earlier decision , explaining why the grant of summary judg m ent was erroneous

. Because we find nothing

wron g w ith the judge ' s willingness to reconsider his earlier ruling, the27 A

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inadequacies in plaintiffs ' presentation on appeal leave us in the unhappy place of choosing between , on the one han d, affirming b ased on o ur view that
reconsideration was not an abuse of di scretion , 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 ju stice is better served in this instance by our independent review of th e p arties ' factual assertions on summary judgment despite the shortcomings in plaintiffs ' submissions in this court

. As defendant Silk City correctly recognizes, the summary judgment th at concluded this matt e r was "at its core" based on two concepts: that a plaintif f "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 fa r from clear whether i t can be said

– on this record

– that plaintiffs c an not clai m 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 o w ne r of the fabric rolls located at the premises. To be sure, the documentation concerning the transaction between Coral Dyeing and Green Pond ' s28 A

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predecessor

– particularly the UCC fina ncing statement

– migh t suggest that these fabric rolls were conveyed t o G reen 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 j udge in Green Pond v. Ameri can Fabric found only t hat the equipment and machinery belonged to Gree n P ond 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 t he dispute about ownership as it arises in this c a se, or if there is some reason

– as the judge he r e held

– that the finding s 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 disp ute about whether plai n tiffs own the fabric rolls for which they seek d a ma ges 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 Dombr ow v. Binson about ownershi p should not be bindin g 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 wou ld have, instead, been tran sferred to plaintiffs h ere in June 2014 . Although the judge determined th at plaintiffs29 A

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"cannot prove what inventory was added after" the January 2014 transaction, there is no clear explanation as to why it wa s fair for him to dr aw such a
conclusion. I n f act, in responding to s ummary judgment, plaintiffs asserted that after t he 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 s u bject property . . . in June 2014." If there is tr uth to this assertion

– and we assume its truth for purposes of summary judgment

– then it could be presently inferred that the allegedly damaged fabric ro lls at the premises in or a fter June 2014 are the rightful property of plaintiffs. Contrary to the ju dge ' s statement in his two

- page written decision in
June 2017 , when summary judgment was denied , about the apparent difficulties plaintiffs would face in a ttempting to prove ownershi p and damage, the judg e asserted in his three

- page January 2018 written op inion that, "[u]pon further reflection," those same problems now appear to be insurmountable and, if attempted, "would invite the jury to speculate." He p rovided little explanation for this conclusion. I n reversing summary judgment and in remanding th e m atter for further proceedings, we agree that plaintiffs will be put to the difficult task of proving that any damaged fabric rolls belong to30 A

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them and not t o Green Pond, that they wer e damaged after being c onveyed in June 2014 (because there appears no g e nu ine 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 o p posing summary judgment on the earlier occasion, pl aintiffs provided expert analysis of the alleg ed property and its alleged damage. Plaintiffs were not obligated

– in opposing summary judgment

– to actually prove their case, only w hether there is a genu i ne factual basis for their claims. At th e summa r y judgment stage, a court must not be con cern ed with
the evidence ' s weight or whether those who have yet to testify are credible. 7 We recognize that plaintiffs may have a difficult tim e demonstrating the el e ments of their claims against Silk City and Verl a n, but we do not see why they should be deprive d of that opportunity. If, as the motion judge believed, the jury would be left to speculate on what it is that plaintiffs must prove af ter hearing plaintiffs ' expert ' s testimony and after hearing Binson or a ny other individual with personal knowledge att empt to provide a factual basis for the

7 In originally denying summary judgment i n Ju ne 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 ma de such an observation or how the judge was able to assess Binson's credi b i li ty by way of the summary judgment submissions.31 A

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expert ' s views, then if and when defendants move for an involuntary dismissal, the judge will be in a far better positi o n to opine on the evidence ' s sufficiency
than an y on e 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 mat ter of summary judgmen t , their claims must
be short

- circuited prior to t ri al. So, in short, we reverse the summary judg ment entered in favor of defendants and remand for further proceedings.
IV

. To summarize our disposition of these appeal s, in Dombrow v. Binson (A

- 4616

- 17 ), w e affirm the judgment and orders under review. I n A merican Fabric v. Silk City (A

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- 17 ), we a ffirm t he 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 j ud gment in favor of defendants , and we, therefo re, 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 u ltimately granted summ a ry judgment, he concluded there was no need to c o nd uct the spoliation hearing. No one appealed that disposition. Now that we have reversed summary judgment, the door is opened again to those spoliation issues.