SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-1674-20

 A-2064-201

CHAIM FRIEDMAN and

NISSEL FRIEDMAN,

Plaintiffs-Appellants,

v.

SAMUEL SCHWARTZ,

Defendant-Respondent.

________________________

CHAIM FRIEDMAN and

NISSEL FRIEDMAN,

Plaintiffs-Respondents,

v.

SAMUEL SCHWARTZ,

Defendant-Appellant.

________________________

Argued January 20, 2022 – Decided July 13, 2022

1

 These appeals originally calendared back-to-back are consolidated for 

purposes of opinion only.

NOT FOR PUBLICATION WITHOUT THE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.
2

A-1674-20

Before Judges Hoffman, Whipple and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-0364-18.

David C. Steinmetz argued the cause for appellants in 

A-1674-20 and respondents in A-2064-20 (Steinmetz, 

LLC, attorneys; David C. Steinmetz, on the briefs).

Nancy Isaacson argued the cause for respondent in A1674-20 and appellant in A-2064-20 (Greenbaum, 

Rowe, Smith & Davis LLP, attorneys; Nancy Isaacson, 

on the briefs).

PER CURIAM

Plaintiffs Chaim and Nissel Friedman appeal from a January 11, 2021 Law 

Division order granting summary judgment to defendant Samuel Schwartz and 

dismissing with prejudice Count III (unjust enrichment), Count IV (waste of 

landlord's property), and Count V (negligent care of landlord's property) of their 

complaint.2 Defendant also appeals, challenging a February 19, 2021 order 

denying his motion for frivolous litigation sanctions against plaintiffs and their 

attorney. We affirm both orders.

2

 The first two counts of plaintiffs' complaint, seeking damages for breach of 

contract and breach of the covenant of good faith, were dismissed because they

were time barred by the statute of limitations.
3

A-1674-20

I.

Plaintiffs commenced this litigation against defendant on February 8, 

2018, twelve years after the parties entered into a five-year lease agreement, 

with an option to buy, in June 2006, for defendant to occupy plaintiffs' property 

located at 763 Montgomery Road, Hillsboro, New Jersey (the Property), seven 

years after the lease expired by its terms, and five years after plaintiffs allege 

defendant vacated the Property. Paragraph 12 of the lease barred plaintiffs from 

access to the Property without defendant's prior written consent, which 

defendant was free to withhold in his "sole option and discretion." 

While the lease expired by its terms in July 2011, plaintiffs' complaint 

alleged that defendant had not paid monthly rent of $2,600 since January 2008, 

and thereafter "occup[ied] the Property until August 2013, as a holdover tenant." 

Plaintiffs claim they discovered that defendant vacated the Property in August 

2014, when they received notice from Hillsborough Township advising that the 

house appeared abandoned and declaring it "an unsafe structure." 

Plaintiffs filed suit in February 2018, after ascertaining defendant's 

whereabouts in Israel. Plaintiffs' complaint sought damages under five separate 

counts: 1) breach of contract, 2) breach of the covenant of good faith and fair 

dealing, 3) unjust enrichment, 4) waste of landlord's property, and 5) negligent 
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care of landlord's property. In July 2018, defendant retained counsel, who filed 

an answer on August 8, 2018. 

During this litigation, defendant moved for summary judgment three 

times. Defendant first moved for summary judgment after filing his answer, 

seeking to dismiss the litigation as time barred. The motion court granted 

summary judgment; however, three of the five counts (which are the subject of 

this appeal), while initially dismissed, were later reinstated to provide plaintiffs 

with the opportunity to take discovery. Defendant next moved for summary 

judgment on December 19, 2019, after the close of discovery and after plaintiffs 

failed to serve any discovery requests. 

Plaintiffs opposed the second summary judgment motion by producing, 

through their counsel's certification, several documents to establish the date of 

defendant's occupancy of the Property: a lease and assignment of lease, utility 

bills in the name of Sam Adam, and correspondence from defendant regarding 

an unrelated legal proceeding wherein his address is listed as that of the 

Property. Defendant responded by certifying that: 1) he granted an assignment 

of lease with an option to buy 763 Montgomery Road, Hillsborough to Samuel 

Adam (Sam), Trustee for the Schwartz Justice Trust, recorded May 13, 2008; 2) 

a further assignment of lease with an option to buy for the Property from Samuel 
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Adam, Trustee to Samuel Adam was recorded May 13, 2008; 3) Sam Adam was 

a close friend. 

In 2008, defendant apparently became quite ill, and Sam helped take care 

of him and his personal affairs. Sam lived with defendant at the Property from 

time to time. Defendant noted that when he said "lived" at the Property, he 

meant the garage, as the "house" was not habitable. After defendant moved to 

Israel to obtain more affordable medical care after his health insurance was 

cancelled, Sam occasionally checked on the Property. 

The court denied the second summary judgment motion, identifying two 

factual issues related to remaining counts of the complaint: 1) whether defendant 

resided at the Property after January 2008 (Count Four); and 2) the condition of 

the Property before and after defendant resided there (Counts Three and Five). 

The court ruled that a jury could find that defendant occupied the Property after 

January 2008 from the documents submitted in opposition to the second 

summary judgment motion. 

On June 6, 2019, plaintiffs filed a motion to reopen discovery, the day 

after the discovery end date. Over objection, the court granted the motion, 

extending discovery to December 15, 2019. On that date (December 15), 

plaintiffs served a subpoena ad testificandum, via email, for defendant to 
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A-1674-20

produce "any and all documents" relevant to "this litigation." Defendant 

promptly filed a motion to quash the subpoena, which the court granted. 

The only evidence that plaintiffs submitted to the court are pictures that 

were taken after plaintiffs received the notice that the Property was in disrepair. 

Plaintiffs also contended, without supporting evidence, that defendant and Sam 

"undeniably lived on the Property from 2008 until 2013." Plaintiffs further 

alleged, again without supporting evidence, that defendant and, presumably 

Sam, "set out to destroy the Property because of a hatred and contempt for the 

Friedmans . . . ."

Plaintiffs unsuccessfully attempted to establish defendant's residency at 

the Property by using statements made by defendant in court pleadings here and 

in Israel. In addition, Chaim Friedman certified that plaintiffs spent years 

looking for defendant, without providing any details of their efforts or providing

any corroborating evidence.

Further, plaintiffs unsuccessfully attempted to utilize defendant's affidavit 

to establish when he emigrated to Israel and construe it as evidence of the date 

that he abandoned the Property. Defendant contradicted plaintiffs' certification 

in a response certification, stating that he is a citizen of the United States, that 
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he travelled back and forth to the United States from Israel, and that he has an 

address in Livingston and a New Jersey driver's license.

In a February 24, 2020 certification, defendant explained that he and 

Chaim Friedman have "known each other since childhood. We agreed to a 

business venture to develop [the Property] for our mutual benefit." Their 

Investment Agreement for the venture specifically noted that the house "was to 

be demolished" as it "was not in livable condition when [p]laintiffs took 

ownership" of the Property.

In September 2020, defendant moved for summary judgment a third time, 

arguing that plaintiffs' failure to provide evidence to prove their remaining 

claims should entitle him to summary judgment. Supporting the entry of 

summary judgment for defendant was plaintiffs' failure to respond to defendant's 

second notice to produce documents seeking documents related to plaintiffs' 

damages and plaintiffs' failure to produce any further evidence in response to 

defendant's initial discovery requests, including any documents related to the 

condition of the Property in 2006 (when the of Lease commenced), 2012 (the 

date Chaim Friedman certified that he heard from a neighbor that defendant 

vacated the Property), or 2018 (the date the Township of Hillsborough sent a 

Notice of Inhabitability). 
8

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The court granted the third summary judgment motion because plaintiffs 

had not come forth with the necessary evidence to sustain their burden of proof, 

notwithstanding that discovery ended on December 19, 2019, and that plaintiffs, 

until opposing the summary judgment motion, had not moved to reopen 

discovery. As the court explained: 

The court finds that this case is ripe [for] summary 

judgment. Plaintiff argues that summary judgment is 

inappropriate due to incomplete discovery. However 

. . . , discovery has been closed for almost a year and 

the court has denied [p]laintiffs' request to reopen 

discovery at this point. Plaintiffs also argue there is 

ample evidence to demonstrate Counts III, IV, and V of 

the Complaint. For Count III, [p]laintiffs merely state 

that ample evidence exists and accuse opposing counsel 

of lying about the lack of evidence. This is not an 

argument that can overcome the standard of summary 

judgment. Plaintiffs also argue that there is a material 

dispute over Counts IV & V regarding the duration of 

the time [d]efendant lived at the Property and the 

condition of the property. While the court 

acknowledge[s] this is disputed, there is nothing in the 

record, due to plaintiffs['] failure to make discovery, 

that [provides] the court evidence of the duration of 

time that the [d]efendant lived at the Property. 

However, the court finds that it has not been show[n]

anywhere in the record, due to the lack of discovery, to 

resolve these issues. Therefore, the court finds that 

[p]laintiffs have not been able to produce evidence that 

can prove their cause of action. As such, . . . summary 

judgment is hereby GRANTED. 
9

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On August 6, 2018, defendant served plaintiffs' counsel with a frivolous

litigation letter, pursuant to N.J.S.A. 15:59.1 and Rules 1:48 and 1:52. After 

finally obtaining the summary judgment dismissal of the remaining counts of 

plaintiffs' complaint, defendant timely filed a motion for frivolous litigation 

sanctions. The court denied the motion on February 19, 2021, principally 

reasoning that the record did not support defendant's contention that plaintiffs 

pursued this litigation in bad faith or with knowledge that their claims were 

frivolous. 

These appeals followed, with plaintiffs asserting that the motion court 

erred in granting summary judgment to defendant and urging this court to 

reverse and remand for trial. Defendant also appeals, contending that the motion 

court erred in not entering frivolous litigation sanctions against plaintiffs and 

their attorney.

II.

We review a grant of summary judgment de novo, observing the same 

standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015) (citing 

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014)). Summary 

judgment should be granted only if the record demonstrates "there is no genuine 

issue as to any material fact challenged and that the moving party is entitled to 
10 A-1674-20

a judgment or order as a matter of law." R. 4:46-2(c). In determining whether 

a summary judgment motion was properly granted, we review the evidence, 

"draw[ing] all legitimate inferences from the facts in favor of the non-moving 

party." Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016) (citing R. 4:46-

2(c)); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

If no genuine issue of material fact exists, the inquiry then turns to whether 

"the trial court correctly interpreted the law." DepoLink Court Reporting & 

Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) 

(citation omitted). Our review of issues of law is de novo; we accord no 

deference to the trial court's legal conclusions. Nicholas v. Mynster, 213 N.J. 

463, 478 (2013) (citing Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 

(2012)).

The party opposing summary judgment "'must do more than simply show 

that there is some metaphysical doubt as to the material facts[,]'" Triffin v. Am. 

Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (quoting Big 

Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3rd Cir. 

1992)), as "[c]ompetent opposition requires 'competent evidential material' 

beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v. 

Asseenontv.com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (quoting 
11 A-1674-20

Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 

(App. Div. 2005)). 

In arguing the motion court erred in granting summary judgment to 

defendant, plaintiffs point to defendant's certification in another legal matter 

from September 2011, electricity payments from January 2013, defendant's 

testimony that he emigrated to Israel in 2013, and alleged fraudulent behavior 

between defendant and Sam. Plaintiffs contend these assertions create a genuine 

issue of material fact, entitling them to a trial rather than a dismissal at the 

summary judgment stage. We disagree.

The record in this case "show[s] that there is no genuine issue of material 

fact and that [defendant] is entitled to judgment as a matter of law." R. 4:46-

2(c). Plaintiffs simply failed to produce evidence that could sustain their causes 

of action, despite multiple opportunities to do so. 

Plaintiffs also argue that we should reverse the motion court's grant of 

summary judgment because the same issues of fact regarding the duration of 

defendant's occupancy of the Property remain today. This argument lacks merit. 

The court denied the second motion for summary judgment in December 2019. 

At that time, this litigation had been ongoing for about a year-and-a-half. 

Nevertheless, the motion court indulgently afforded plaintiffs more time to 
12 A-1674-20

obtain the requisite proofs to sustain their causes of action against defendant. 

Almost a year later, plaintiffs failed to produce evidence to sustain their causes 

of action. Accordingly, defendant moved for summary judgment for a third 

time. 

The motion court correctly found that almost one year after the close of 

discovery, plaintiffs had clearly failed to produce sufficient evidence to sustain 

their causes of action against defendant. Indeed, on Count III (unjust 

enrichment), plaintiffs could only offer bald assertions that defendant and his 

counsel are lying about defendant's occupancy of the property. Bald assertions 

will not rise to a preponderance of the evidence necessary to sustain this cause 

of action. Considering the burden of persuasion at trial, we are satisfied that the

evidence submitted by plaintiffs in opposition to defendant's motion could not 

sustain a judgment in favor of plaintiffs. See Brill, 142 N.J. at 538.

As to Counts IV (waste of landlord's property) and V (negligent care of 

landlord's property), plaintiffs failed to produce competent evidence of the 

duration of time that defendant lived at the Property. The lack of evidence on 

Counts IV and V is due to plaintiffs' failure to engage in discovery, despite 

ample opportunity to do so. For example, plaintiffs attempted to prove that 

defendant wasted their property and negligently failed to maintain their property 
13 A-1674-20

with a photograph from 2013, taken by Hillsborough Township to show 

plaintiffs that the Property was in disrepair. Plaintiffs also rely on bald 

assertions that defendant and Sam "undeniably lived at the Property" from 

January 2008 until 2013. 

The photograph taken by Hillsborough Township is not probative of 

plaintiffs' claims against defendants. The photograph was taken well beyond 

any of the dates that plaintiffs allege that defendant occupied the property. 

Plaintiffs failed to produce any competent evidence that defendant resided at the 

property while the property fell into disrepair. Plaintiffs also failed to dispute

successfully defendant's claim that defendant and Chaim Friedman agreed to a 

business venture to develop the Property for their mutual benefit and that their 

Investment Agreement for the venture specifically noted that the house "was to 

be demolished" as it "was not in livable condition." We discern no reason to 

disturb the motion court's grant of summary judgment to defendant.

We next turn to defendant's contention that the motion court erred by not 

imposing sanctions on plaintiffs or their attorney. N.J.S.A. 2A:15-59.1 and 

Rules 1:48 and 1:52 prohibit counsel from prosecuting a case he or she knows 

is without merit. Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. 

Div. 1996). Under these rules, we analyze the motion court's judgment under 
14 A-1674-20

the "abuse of discretion" standard, disturbing its judgment "only if it is 'so 

wholly insupportable as to result in a denial of justice.'" Goodyear Tire & 

Rubber Co. v, Kin Properties, Inc., 276 N.J. Super. 96, 106 (App. Div. 1994) 

(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 

(1974)).

Frivolous litigation sanctions "are not to be issued lightly; they are 

reserved for particular instances where a party's pleading is found to be 

'completely untenable,' or where 'no rational argument can be advanced in its 

support[.]"' McDaniel v. Man Wai Lee, 419, N.J. Super. 482, 499 (App. Div. 

2011) (quoting United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 

(App. Div. 2009)). "Where a party has a reasonable and good faith belief in the 

claims being asserted, reallocation of attorneys' fees and expenses will not be 

awarded." In re Est. of Ehrlich, 427 N.J. Super. 64, 77 (App. Div. 2012). 

Further, frivolous litigation sanctions are not appropriate where there is 

"sufficient legal uncertainty . . . as to the viability of" a claim. McDaniel, 419 

N.J. Super. at 499.

We discern no error in the motion court's determination not to award 

counsel fees to defendant. The court found plaintiffs had a good faith belief in 

their cause of action at the outset of their case. Defendant did occupy the 
15 A-1674-20

Property, which ended up in disrepair. Plaintiffs simply failed to prove their 

causes of action. As noted, sanctions are not warranted where the party or the 

party's attorney "had a reasonable, good faith belief in the claims being 

asserted." Ehrlich, 427 N.J. Super. at 77. We see no reason to disturb the court's 

ruling.

Affirmed.