SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2753-15T3

MORETRAN REALTY, LLC,

Plaintiff-Appellant,

v.

BALDEV PATEL AND SON,

LLC, BALDEV PATEL and

CHETAN PATEL,

Defendants-Respondents.

______________________________________

Argued February 14, 2017 – Decided

Before Judges Messano and Espinosa.

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Docket No. L9032-14.

John R. Edwards, Jr., argued the cause for 

appellant (Price, Meese, Shulman & D'Arminio, 

PC, attorneys; Mr. Edwards, on the briefs).

Douglas J. Kinz argued the cause for 

respondent.

PER CURIAM

Plaintiff Moretran Realty, LLC, purchased commercial real 

estate property (the Property) from defendant Baldev Patel and 

NOT FOR PUBLICATION WITHOUT THE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.

August 23, 2017
2 A-2753-15T3

Son, LLC (Seller) for $1.6 million. The parties agreed to escrow 

$100,000 for environmental issues pursuant to an escrow agreement 

that also required personal guarantees from defendants Baldev 

Patel and Chetan Patel (collectively the Patels).

1 This appeal 

concerns the disposition of the escrowed funds, each side claiming 

entitlement to the funds. Plaintiff appeals from an order that 

denied its motion for partial summary judgment and granted summary 

judgment to defendants, dismissing the complaint with prejudice. 

We affirm.

I.

When Seller purchased the Property in 2009, its commercial 

lender obtained a Phase I Environmental Assessment Report that 

identified two environmental issues on the Property. Both issues

concerned contamination discovered after the removal of two 1,000-

gallon underground heating oil storage tanks (UST) in 1999 and 

2005. 

Groundwater near the first UST was contaminated with gasoline 

constituents that were determined to have migrated from the 

adjacent U-Haul facility. Following remediation efforts under the 

supervision of the New Jersey Department of Environmental 

 

1 Because they share the same surname, we refer to these defendants 

by their first names; we mean no disrespect.
3 A-2753-15T3

Protection (NJDEP), the NJDEP issued a No Further Action (NFA)

letter for the Property regarding the removal of this UST. The 

second UST was found to have leaked, resulting in soil and 

groundwater contamination. Following remediation efforts, NJDEP 

issued an NFA letter for this UST in 2009.

In March 2012, plaintiff entered into a contract with Seller

to purchase the Property. During the ninety-day inspection period,

plaintiff's attorney sent written notice to defendants that 

plaintiff elected to terminate the contract because it had 

"discovered various unacceptable conditions at the Property

including . . . environmental areas of concern and significant 

defects in the structure of the building and its systems." 

The environmental areas of concern (AOC) were identified in 

a report prepared by TRC Environmental Corporation (TRC) following 

its inspection of the Property.2 TRC reported it had identified 

eighteen AOCs. It recommended "additional information or further 

investigation for" five AOCs:

AOC 2c Abandoned Fuel Oil UST (Unknown 

Capacity)

AOC 2d Abandoned 2,500-Gallon #2 Fuel Oil 

UST

AOC 9 Inactive Production Well

AOC 11 Off-Site Impacts

AOC 12 Debris Piles

 

2 The report provided in Plaintiff's appendix is titled, 

"Preliminary Assessment/Phase I Environmental Site Assessment 

Report" and is labeled "DRAFT" throughout.
4 A-2753-15T3

TRC recommended "No Further Action . . . for the remaining 

AOCs." Among those were AOC 2a and AOC 2b, which referred to the 

1,000 gallon USTs removed in 1999 and 2005, respectively, and 

which were the subjects of NFA letters from the NJDEP. 

Plaintiff's counsel wrote a letter to defendant's attorney, 

dated June 25, 2012, that "confirm[ed] the terms upon which" 

plaintiff was willing to proceed with the sale. The letter set 

forth a number of modifications to the contract of sale, including:

1. The contract price is to be amended to 

$1,477,000.00. It is specifically understood 

and agreed that the [P]roperty is being sold 

physically, "as-is" except for the noted 

issues stated herein;

2. The sum of $100,000.00 will be escrowed 

at closing, to be held in trust by [S]eller's 

attorney, for environmental issues related to 

the two (2) underground storage tanks, and the 

contamination generally identified by U-Haul. 

The $100,000.00 shall be released upon the 

sooner of six (6) months from the closing or 

U-Haul assuming without reservation the cleanup of the subject [P]roperty. In the event 

that a Phase-I report by the lender shall 

reveal any additional environmental issues, 

the seller shall be entitled to cancel the 

contract unless the buyer waives the 

additional issues found. Additionally, 

[Baldev Patel and Chetan Patel] will 

personally hold [plaintiff] harmless from any 

environmental issues related to the two (2) 

underground storage tanks, and the 

contamination generally identified by U-Haul 

on the [P]roperty. The personal guarantees 

shall be released upon U-Haul assuming the 

clean-up as above referenced;
5 A-2753-15T3

3. A phase I report must be accepted by

[plaintiff's] lender so the transaction may 

be financed as contemplated;

4. The closing will be July 17, 2012, 

subject to the substantive and scheduling 

requirements of the lender; . . . .

[(Emphasis added).]

Both parties agree the closing occurred on September 11, 

2012. The parties executed an escrow agreement that incorporated 

terms agreed upon in the June 25, 2012 letter:

[T]he parties have agreed that an escrow shall 

be established and an escrow agent shall be 

appointed to enable certain environmental work 

to be completed, as further described herein, 

and for [plaintiff] to receive the appropriate 

documentation of completion of the 

environmental work . . . .

2. Seller and [plaintiff] agree that the 

Escrowed Funds will be held in trust by the 

Escrow Agent, for environmental issues related 

to the two (2) underground storage tanks on 

the Property, and the contamination generally 

identified by U-Haul. The Escrowed Funds 

shall be released upon the sooner of six (6) 

months from the closing date, or U-Haul 

assuming without reservation the clean-up of 

the Property.

3. Baldev Patel and Chetan Patel jointly,

severally and personally will hold [plaintiff]

harmless from any environmental issues related 

to the two (2) underground storage tanks, and 

the contamination generally identified by UHaul on the Property. The personal guarantees 

shall be released upon U-Haul assuming without 

reservation the clean-up of the Property.
6 A-2753-15T3

According to a certification submitted by John Muchmore, the 

sole principal of plaintiff, "U-Haul took the position it was not 

responsible for any of the clean-up" after the closing. The 

parties extended time periods to further investigate the 

possibility that U-Haul would assume responsibility for the cleanup but U-Haul continued to deny any responsibility.3 Plaintiff 

made numerous demands for defendants to take care of the cleanup; defendants refused to do so or release the escrowed funds for 

plaintiff to use for clean-up costs. Muchmore certified further 

"[t]he Property was contaminated at and prior to the . . . sale"

and that "defendants are solely responsible for the costs" which 

plaintiff has incurred and will incur.

In the certification he submitted in opposition to 

plaintiff's motion, Chetan stated there was no contamination on 

the Property and no clean-up necessary at the time of the closing. 

Remediation of the U-Haul site continued under the direction 

of Environmental Resources Management (ERM). In January 2013, ERM 

conducted groundwater sampling of eleven monitoring wells on the

U-Haul site. Finding no excess levels of the gasoline constituents 

in wells close to the Property, ERM concluded there was no evidence 

 

3 This assertion was not supported by any corroborating evidence 

and was disputed.
7 A-2753-15T3

of any contamination migrating from the U-Haul site and that no 

clean-up was necessary on the Property.

When the six-month period expired, plaintiff's counsel 

requested an extension for ninety days. He also demanded the 

escrowed funds not be released and that Seller "immediately 

undertake the required clean-up, including . . . the groundwater 

remediation." A letter from plaintiff's counsel, dated April 5, 

2013, confirms that defendants did not agree to the extension.

An email, dated July 26, 2013, from Alex Yankaskas, Vice 

President of Environmental Compliance Monitoring, Inc. (ECM), a 

licensed site remediation professional (LSRP), to plaintiff's 

counsel provided his interpretation of a report on groundwater 

sampling information from the U-Haul site. Yankaskas stated, "At 

this first, quick glance, this does not appear to support a strong 

contention relative to an off-site source migrating eastwardly." 

Although the email stated Yankaskas would take a more thorough 

look at the report, there is no evidence that his conclusion was 

altered by further review.

Plaintiff's counsel asserted that he and Yankaskas had 

conversations with defendants' former attorney, Bennett 

Wasserstrum, that purportedly reflected an agreement by defendants 

"to do the work they were obligated to do" regarding the site. 
8 A-2753-15T3

In an email relied upon by plaintiff dated March 26, 2014, 

Yankaskas states:

I reached and spoke with Bennett Wasserstrum 

just now. He is onboard with our recent 

discussions. We will provide him a proposal 

this week for the borings.

One point that came to mind relative to 

Patel vs. [plaintiff] as the client: The 

results will be the client's (whomever that 

may be) and therefore, there should be an 

agreement between the parties to share those 

findings.

As part of that agreement, it would be 

prudent to add/confirm mutual objectives for 

the work, especially given the potential LSRP 

aspect (if on-site contamination is 

confirmed). 

[(Emphasis added).] 

ECM presented the following Proposed Scope of Work:

The proposed investigation will consist of a 

limited soil boring and ground water sampling 

program and associated reporting. This 

program is designed to assess general 

environmental conditions relative to two 

[USTs] previously removed from the site and 

potential gasoline groundwater contamination 

migrating from the adjacent (U-Haul) site.

A draft agreement prepared by plaintiff's attorney stated the 

parties agreed ECM would "conduct the investigation and take the 

LSRP position in remediating the [P]roperty as required by existing 

law." This agreement was never executed.

Plaintiff brought this action, seeking declaratory judgment 

pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-
9 A-2753-15T3

23.11 to -23.24, that defendants are jointly and severally liable 

for all investigatory, cleanup and removal costs and expenses and 

also seeking treble damages and indemnification. In addition, 

plaintiff alleged causes of action based on negligence, strict 

liability, nuisance, breach of contract and indemnification from 

the Patels pursuant to their personal guarantees. Defendants 

filed an answer and counterclaim in which they demanded judgment 

against plaintiff compelling the release of the escrowed funds. 

Plaintiff filed a motion for partial summary judgment, to compel 

the release of the escrowed funds for it to use for clean-up costs 

and to require the Patels to be liable for those costs. Defendant 

filed a cross-motion for summary judgment, seeking the dismissal 

of the complaint and release of the escrowed funds.

At oral argument, defense counsel argued plaintiff had 

produced no evidence of contamination to support its claims. 

Plaintiff contended such evidence existed, citing a reference in 

a certification from Wasserstrum to TRC's recommendation for 

"further investigation" regarding two USTs, AOC 2c and AOC 2d, one 

2,500 gallon tank and the other of unknown capacity. In the 

certification, Wasserstrum maintained there was no contamination 

associated with these two tanks. He further asserted that 

plaintiff's concern and the subject of the escrow agreement were 

the two USTs removed from the Property in 1999 and 2005. 
10 A-2753-15T3

The trial judge denied plaintiff's motion for partial summary 

judgment, granted defendants' cross-motion for summary judgment 

and set forth her reasons on the record. She stated:

Plaintiff has conceded that U-Haul refused to 

assume responsibility for any cleanup of the 

[P]roperty since its testing revealed no 

evidence of ongoing contamination and the need 

for any such cleanup. Accordingly, more than 

six months have passed from the closing date, 

under the express language of the 

agreement . . . the escrow funds must be 

released. 

The trial judge also noted the existence of evidence to 

support the conclusion that there was no contamination on the

Property and the absence of evidence to the contrary.

In its appeal, plaintiff argues summary judgment should not 

have been granted4 because there were genuine issues of material 

fact (Point I), the matter was not ripe for summary judgment (Point 

II) and the trial judge erred in making factual determinations 

based on information that related to the U-Haul site rather than 

to the Property (Point III). After reviewing these arguments in 

light of the record and applicable principles of law, we conclude 

they lack merit and further, the arguments raised in Points II and 

III require no discussion. R. 2:11-3(e)(1)(E).

 

4 Plaintiff has not argued the trial judge erred in denying its 

motion for partial summary judgment.
11 A-2753-15T3

II.

In reviewing a decision on a summary judgment motion, we view 

the evidence "in the light most favorable to the non-moving party,"

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995), 

to determine whether the competent evidential materials presented

"show that there is no genuine issue as to any material fact 

challenged and that the moving party is entitled to a judgment or 

order as a matter of law," R. 4:46-2(c).5

In Cortez v. Gindhart, 435 N.J. Super. 589 (App. Div. 2014), 

certif. denied, 220 N.J. 269 (2015), we described the proofs 

necessary to defeat a motion for summary judgment: 

[T]he opponent must "'come forward with 

evidence' that creates a genuine issue of 

material fact." "An issue of fact is genuine 

only if, considering the burden of persuasion 

at trial, the evidence submitted by the 

parties on the motion, together with all 

legitimate inferences therefrom favoring the 

non-moving party, would require submission of 

the issue to the trier of fact." 

 

5 Plaintiff was required and did not support its motion with a 

statement of material facts that includes 

a citation to the portion of the motion record 

establishing the fact or demonstrating that 

it is uncontroverted. The citation shall 

identify the document and shall specify the 

pages and paragraphs or lines thereof or the 

specific portions of exhibits relied on.

[Rule 4:46-2(a).]
12 A-2753-15T3

Although we must view the "evidential 

materials . . . in the light most favorable 

to the non-moving party" in reviewing summary 

judgment motions, we emphasize that it is 

evidence that must be relied upon to establish 

a genuine issue of fact. "Competent 

opposition requires 'competent evidential 

material' beyond mere 'speculation' and 

'fanciful arguments.'" 

[Id. at 605 (citations omitted).]

The issues presented by this appeal concern a question of 

law, the interpretation of the escrow agreement language, and a 

question of fact, whether the evidence supported the disbursement 

of the escrowed funds to Seller.

6

A.

Because the interpretation of a contract is a question of 

law, our review is de novo. Kieffer v. Best Buy, 205 N.J. 213, 

222 (2011). "The judicial task is simply interpretative; it is 

not to rewrite a contract for the parties better than or different 

from the one they wrote for themselves." Id. at 223. Contractual 

terms should be read and interpreted by using "their plain and 

ordinary meaning." M.J. Paquet, Inc. v. N.J. Dep't of Transp., 

171 N.J. 378, 396 (2002). However, "[i]f the terms of the contract 

are susceptible to at least two reasonable alternative 

interpretations, an ambiguity exists," Chubb Custom Ins. Co. v. 

 

6 Defendants concede that their agreement to indemnify plaintiff 

survives the dismissal of plaintiff's complaint.
13 A-2753-15T3

Prudential Ins. Co. of Am., 195 N.J. 231, 239 (2008), and extrinsic 

evidence may be used to discern the parties' intent, Conway v. 287 

Corp. Ctr. Assocs., 187 N.J. 259, 270 (2006). 

Neither party contends the language of the escrow agreement 

is ambiguous and we agree. The funds were explicitly "held in 

trust . . . for environmental issues related to the two (2) 

underground storage tanks on the Property, and the contamination 

generally identified by U-Haul." The escrow agreement also 

established the criteria for the release of the escrowed funds:

"The Escrowed Funds shall be released upon the sooner of six (6) 

months from the closing date, or U-Haul assuming without 

reservation the clean-up of the Property."

The parties agree the closing occurred on September 11, 2012. 

It is also undisputed that U-Haul never assumed responsibility for 

a clean-up of the Property and, in fact, affirmatively disclaimed 

any responsibility for a clean-up. Contrary to plaintiff's 

assertion, there is no evidence in the record that defendants 

agreed to an extension of the six-month period. Therefore, the 

escrow agreement provided for the release of the escrowed funds 

at the end of the six-month period.

B.

Plaintiff contends summary judgment should not have been 

granted because it presented evidence in the form of "the no 
14 A-2753-15T3

further action letter, the TRC report and the proposed scope of 

work to be done sent on March 31, 2014" that established a genuine 

issue of fact as to the existence of contamination on the Property.

We disagree.

As we have noted, the escrow agreement called for the release 

of funds no later than six months after the closing. The discovery 

of any contamination on the Property thereafter would not, 

therefore, have any bearing on whether the escrowed funds should 

be released. Plaintiff has produced no evidence of any 

contamination from "the two (2) underground storage tanks on the 

Property, and the contamination generally identified by U-Haul" 

within that six-month period. The ERM tests done in January 2013 

found no evidence of any contamination migrating from the U-Haul

site, the basis for U-Haul's conclusion that no clean-up was 

necessary on the Property. Plaintiff has presented no evidence 

that refutes that conclusion within the six-month period.

Even if we review the record beyond the six-month period, 

plaintiff has still produced no evidence of actual contamination 

relating to the issues identified in the escrow agreement. At 

best, plaintiff has produced a proposal from ECM to conduct 

investigative borings. But even in making the proposal in March 

2014, Yankaskas referred to activity that would occur "if on-site 

contamination is confirmed." (Emphasis added). Thus, even a year
15 A-2753-15T3

after the escrow period had expired, there was no proof of 

contamination relating to the USTs referenced in the escrow 

agreement or contaminants that had migrated from the U-Haul site.

Affirmed.