SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0576-17T2

THE ALBERT SAMUELS TRUST, 

WILLIAM HERMAN, GARY SAMUELS, 

PETER MARX, and CANDIA HERMAN,

Plaintiffs-Respondents,

v.

SETTIMO AND THE THREE 

MUSKETEERS, LLC,

Defendant-Appellant.

____________________________________

Submitted September 18, 2018 – Decided

Before Judges Hoffman and Firko.

On appeal from Superior Court of New Jersey, Law 

Division, Morris County, Docket No. L-2682-15.

Dominic V. Caruso, attorney for appellant.

Belsole and Kurnos, LLC, attorneys for respondents 

(Kevin Weinman, of the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

October 2, 2018
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This matter arises from a dispute over a commercial real estate contract. 

Plaintiffs entered into an agreement to sell two lots1in Hanover Township to 

defendant buyer, Settimo and The Three Musketeers, LLC. The agreement 

provided for the payment of a development bonus, under certain circumstances. 

After defendant refused to pay the bonus, plaintiffs sued to compel payment. 

Defendant now appeals from the Law Division order granting plaintiffs' motion 

for summary judgment and entering judgment against defendant in the amount 

of $172,222.30, plus prejudgment interest. We affirm.

I

In 2006, the parties entered into a contract for plaintiffs to sell the subject 

property to defendant for $3,497,777. Lot 6 consisted of approximately 5.5 

acres of improved property with frontage on Jefferson Road, and Lot 12 

consisted of 3.3 acres of vacant property to the rear of Lot 6. Defendant

terminated the initial contract after determining that approximately forty percent 

of the subject property was designated as protected wetlands by the New Jersey 

Department of Environmental Protection. Later that year, defendant entered into 

a second contract for the purchase of the same two lots, but for a reduced price, 

 

1

 The property, identified on the local tax map as Block 2606, Lots 6 and 12, is 

commonly referred to as 64 South Jefferson Road in Whippany. 
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$2,577,000, with the reduction reflecting the impact of the wetlands on the 

development potential of the property. Nevertheless, the second contract 

contained the following provision:

DEVELOPMENT BONUS: In the event the Buyer 

obtains approval to construct a building or other 

substantial improvements on the undeveloped portion 

of approximately 3.3 acres at the rear of the Property at 

any time after closing, the Buyer shall be obligated to 

pay the Seller the additional sum of One Hundred 

Seventy Two Thousand Two Hundred Twenty-Two and 

30/100 Dollars ($172,222.30). . . .

Subsequently, defendant purchased Lots 1 and 1.01, narrow strips of land 

adjacent to the subject property. In 2011, the Township of Hanover Board of 

Adjustment (Board) granted defendant all necessary variances and approvals for 

the construction of a warehouse and office building on its four lots.2In 

November 2013, plaintiffs sent defendant a letter requesting payment pursuant 

to the development bonus provision, based upon the approvals defendant 

obtained. After defendant failed to make the requested payment, plaintiffs filed 

 

2

 According to Joseph Gutilla, a managing member of defendant, in order to 

provide larger warehouse and office space for a related food distribution 

business, defendant's plan included construction of "an addition to one of the 

existing buildings [on Lot 6], i.e. expand onto the adjacent vacant land of Lot 

12." 
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this action. In response to requests for admissions, defendant admitted the 

approvals obtained "apply to the bonus property."

II

We review the disposition of a summary judgment motion de novo, 

applying the same standard used by the motion judge under Rule 4:46-2(c).

Townsend v. Pierre, 221 N.J. 36, 59 (2015) (citation omitted). Thus, the court 

considers, as the motion judge did, whether "the competent evidential materials 

presented, when viewed in the light most favorable to the non-moving party, are 

sufficient to permit a rational factfinder to resolve the alleged disputed issue in 

favor of the non-moving party." Town of Kearny v. Brandt, 214 N.J. 76, 91

(2013) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 

(1995)). If there is no genuine issue of material fact, the court must then "decide 

whether the trial court correctly interpreted the law." Massachi v. AHL Servs.,

Inc., 396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential Prop. & Cas. 

Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)). The interpretation 

of a contract is a "question[] of law particularly suited for summary judgment." 

Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (citing Selective Ins. 

Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic Med. & Physical Therapy, 

210 N.J. 597, 605 (2012))."
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As a general rule, we enforce contracts as the parties intended. Pacifico 

v. Pacifico, 190 N.J. 258, 266 (2007) (citations omitted). To do so the "terms 

of the contract must be given their 'plain and ordinary meaning.'" Schor v. FMS 

Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002) (quoting Nester v. 

O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997)).

Defendant primarily asserts that the bonus provision's language for

"approval to construct a building or other substantial improvements on" Lot 12 

applies only if the Board approved construction of a building "on Lot 12." 

Defendant argues the necessity to purchase Lots 1 and 1.01 – which created 

access to and from Lot 12 and the public road – to obtain its development 

approval precludes the triggering of the bonus provision. We disagree.

The bonus provision plainly and unambiguously states that if defendant 

obtains approval for construction of a building or other substantial

improvements on Lot 12 at any time after closing, defendant would owe

plaintiffs the development bonus. It is undisputed defendant did obtain such 

approval, memorialized in a resolution from the Board. We agree with the trial 

judge that "[n]otably absent from the plain language of the . . . bonus provision 

is any wording that suggests that the development bonus is contingent on 

[d]efendant obtaining approval to only or exclusively build on Lot 12." We 
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therefore hold that defendant is liable to plaintiff for $172,222.30, plus 

prejudgment interest, on the basis of the clear triggering of the bonus provision.

Lastly, defendant argues plaintiffs "should be equitably estopped from 

asserting a claim" for the bonus since they did not assert the claim until 

November 4, 2013, three months after defendant paid off a purchase money 

mortgage which plaintiffs extended under the terms of the parties' contract. We 

decline to consider this argument because defendant failed to assert this defense 

in its answer or in its opposition to plaintiff's motion for summary judgment. 

See Gabriele v. Lyndhurst Residential Cmty., LLC, 426 N.J. Super. 96, 105 

(App. Div. 2012) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 

(1973)). "[A]ppellate courts will decline to consider questions or issues not 

properly presented to the trial court . . . []unless the questions so raised on appeal 

. . . concern matters of great public interest.[]" Nieder, 62 N.J. at 234 (quotation 

omitted). Nothing here suggests that defendant's claim of equitable estoppel 

rises to the requisite level of "great public interest." See U.S. Bank Nat'l. Ass'n 

v. Guillaume, 209 N.J. 449, 483 (2012) (quoting Nieder, 62 N.J. at 234).

Affirmed.