SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2616-18T2

THOMAS and KIMBERLY 

DOLAN, 

Plaintiffs, 

v. 

130 STAR PROPERTIES, LLC, 

Defendant.

____________________________

JOHN F. VASSALLO, JR.,

Plaintiff, 

v. 

THOMAS and KIMBERLY 

DOLAN, and DOLAN'S IRISH 

PUB & RESTAURANT, INC., 

f/k/a MIKE & NISSAN, INC., 

Defendants-Appellants, 

and 

JACOB SPIGELMAN,

NOT FOR PUBLICATION WITHOUT THE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-2616-18T2

Defendant-Respondent,

and 

130 STAR PROPERTIES, LLC, 

c/o THOMAS PATSAROS, and

CITY OF BURLINGTON, 

Defendants.

____________________________

Argued January 13, 2020 – Decided 

Before Judges Messano and Vernoia. 

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Docket No. L-0322-14.

Mark J. Molz argued the cause for appellants.

John E. Shields argued the cause for respondent 

(Helmer, Conley & Kasselman, PA, attorneys; John E. 

Shields, of counsel and on the brief).

PER CURIAM

Plaintiffs Thomas Dolan, Kimberly Dolan, and Dolan's Irish Pub & 

Restaurant, Inc. (Dolan's Irish Pub) appeal from a January 8, 2019 order granting 

defendant Jacob Spigelman's motion to vacate a June 30, 2017 order that 

effectively reversed an order granting Spigelman summary judgment. 1 Having 

1

 The court's January 8, 2019 order contains a typographical error. It states that 

it vacates a June 20, 2017 order, but the vacated order is dated June 30, 2017.

February 25, 2020
3

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considered the record, and discerning no abuse of discretion in the court's entry 

of the January 8, 2019 order, we affirm.

I.

This matter arises out of a dispute over the purchase of a liquor license 

and restaurant from defendants Thomas Patsaros and 130 Star Properties, LLC. 

Defendant John F. Vassallo, Jr., a New Jersey attorney, represented plaintiffs in 

the purchase.2 As part of the transaction, Thomas Dolan, Kimberly Dolan, and 

Patsaros became shareholders in Dolan's Irish Pub, which became the purchaser 

of the liquor license and restaurant. Kimberly Dolan held ninety-eight percent 

of the shares in Dolan's Irish Pub stock. Thomas Dolan and Patsaros held one 

percent each. 

Plaintiffs required working capital to complete the transaction, so 

Vassallo and Patsaros arranged for Spigelman to loan Dolan's Irish Pub fifty 

thousand dollars. Although Thomas Dolan and Kimberly Dolan never met 

Spigelman, they executed a fifty-thousand-dollar promissory note on behalf of 

Dolan's Irish Pub in Spigelman's favor. Patsaros personally guaranteed 

repayment of the note, and he, Thomas Dolan, Kimberly Dolan, and Spigelman 

entered into an Escrow and Pledge Agreement (escrow agreement), which, in 

2

 Plaintiffs alleged Vassallo also represented Patsaros in the transaction. 
4

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pertinent part, pledged the stock in Dolan's Irish Pub to secure payment of the 

note. With the authorization of Thomas Dolan and Kimberly Dolan, Spigelman 

transferred fifty thousand dollars to Vassallo, who deposited the funds in his 

attorney trust account. Vassallo disbursed the funds in a manner that became an 

issue in the litigation.

Plaintiffs later filed a complaint against Vassallo, Patsaros, and 130 Star 

Properties, LLC, asserting causes of action arising out of the transaction. 

Vassallo filed a separate complaint against plaintiffs; 130 Star Properties, LLC;

Patsaros; the City of Burlington; and Spigelman. It appears Spigelman filed a 

cross-claim against plaintiffs on the obligations under the promissory note and 

escrow agreement. It further appears plaintiffs and Dolan's Irish Pub filed crossclaims against Spigelman seeking nullification of the obligations under the 

note.3 The court consolidated plaintiffs' and Vassallo's complaints, and the 

various claims asserted were thereafter litigated in a single proceeding. 

3

 In their respective appendices, plaintiffs and Spigelman fail to include all of 

the pleadings filed by all of the participants in the Law Division proceedings. 

For example, and not by way of limitation, plaintiffs do not provide their 

complaint and amended complaint in the record on appeal. In any event, we 

generally summarize the respective claims based on what we glean from the 

record provided, and note there are clearly many claims we do not mention that 

were asserted by and among the numerous parties. It is unnecessary that we 

detail all of the claims asserted by the parties, even including those between 
5

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Following the completion of discovery, and just prior to the scheduled 

trial date, the court permitted the filing of dispositive motions in accordance 

with an accelerated schedule. Spigelman moved for summary judgment on his 

claims under the note and for dismissal of plaintiffs' cross-claims seeking 

rescission of the note.4 Plaintiffs cross-moved for summary judgment on their 

claims against Spigelman and his claims against them. 

On May 30, 2017, Judge Janet Z. Smith heard extensive argument on the 

cross-motions and informed the parties Spigelman's summary judgment motion 

was granted and plaintiffs' motion was denied. In plaintiffs' counsel's presence, 

Judge Smith also advised Spigelman his appearance at future proceedings in the 

case was no longer required. On June 12, 2017, Judge Smith entered an order 

(summary judgment order) granting Spigelman summary judgment on his claims 

under the note and for unjust enrichment against plaintiffs, dismissing plaintiffs'

claims against Spigelman, and denying plaintiffs' cross-motion. In her oral 

plaintiffs and Spigelman, because we are required to decide only whether the 

court erred by entering its January 8, 2019 order vacating its June 30, 2017 order, 

and our resolution of that issue does not require an analysis of the merits of the 

causes of action asserted. 

 

4

 Plaintiffs also sought damages based on alleged fraud in obtaining the note 

and in the disbursement of the loan funds. 
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opinion, Judge Smith found $50,000 was due to Spigelman under the note, but 

the summary judgment order does not include an amount due.5

The remaining claims involving plaintiffs, Vassallo, 130 Star Properties, 

LLC, and Patsaros proceeded to trial before a different judge. The claims 

against Vassallo settled, and the judge conducted a June 28, 2017 proof hearing 

on plaintiffs' claims against Patsaros,6 who did not appear for trial or the proof 

hearing.7 Thomas Dolan and Kimberly Dolan appeared at the proof hearing with 

their counsel. No other parties or counsel were present. 

5

 During the summary judgment proceeding, Judge Smith said "there is a 

judgment for $50,000 for . . . Spigelman against . . . plaintiffs," and "grant[ed] 

summary judgment, but only to the extent of $50,000." Plaintiffs correctly note 

the summary judgment order does not include the amount the court determined 

is due to Spigelman. See Taylor v. Int'l Maytex Tank Terminal Corp., 355 N.J. 

Super. 482, 498 (App Div. 2002) ("Where there is a conflict between a judge's 

written or oral opinion and a subsequent written order, the former controls."). 

Plaintiffs do not appeal from the summary judgment order and Spigelman did 

not cross-appeal from the order. We therefore do not address any alleged 

deficiency in the order. However, nothing in our opinion precludes the parties 

from moving before the trial court in accordance with Rule 1:13-1 for the 

correction of any clerical error "arising from oversight and omission" in the 

summary judgment order.

 

6

 The court addresses 130 Star Properties, LLC in an order entered following 

the proof hearing. The order provides that 130 Star Properties, LLC is an "entity 

[that] has been utilized with a lack of corporate formality," is Patsaros's "alterego," and failed to appear for trial. 

7

 Plaintiffs have not provided transcripts of any trial proceedings. The record 

includes a transcript of the June 28, 2017 proof hearing.
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During the proof hearing, there was no testimony concerning Spigelman, 

and his name was not mentioned by the court, counsel, or plaintiffs. Plaintiffs'

counsel did not advise the court Judge Smith entered the summary judgment 

order in Spigelman's favor two weeks earlier. The record is devoid of evidence 

plaintiffs' counsel notified Spigelman or his counsel prior to the proof hearing 

that plaintiffs intended to request that the court vacate or modify Judge Smith's 

summary judgment order. And, during the proof hearing, plaintiffs' counsel 

never stated plaintiffs sought relief as to Spigelman or the promissory note and 

never requested vacation or modification of the summary judgment order. In 

addition, although Judge Smith issued the summary judgment order, plaintiffs 

never moved before her for reconsideration of the order. 

Nonetheless, following the proof hearing, plaintiffs' counsel submitted a 

proposed order to the court entitled "ORDER REGARDING SPIGELMAN

LOAN."

8

 The order in part addressed the issue presented to the court during the 

proof hearing—Patsaros's liability to plaintiffs—but it also effectively vacated 

8

 Plaintiffs' counsel submitted two orders to the court following the proof 

hearing. The court entered both orders. One of the orders, which is captioned 

"ORDER DISMISSING CROSSCLAIMS," dismissed Patsaros's and 130 Star 

Properties, LLC's crossclaims against plaintiffs, and dismissed the case as to 

Vassallo. We do not address that order because it was not vacated by the January 

8, 2019 order that is the subject of this appeal. 
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and reversed Judge Smith's summary judgment order. The order provided "it 

would be inequitable to require [p]laintiffs to be responsible for [the Spigelman] 

loan," found the loan documents were "part of a continuing [f]raud and are void 

ab initio," and stated that Patsaros was "100% responsible for the loan 

from . . . Spigelman." 

There is no evidence plaintiffs' counsel served Spigelman or his counsel 

with the proposed order when it was submitted to the court, see R. 4:42-1(c); or 

that Spigelman or his counsel were served with the order following its entry,

9

see R. 1:5-1(a). Moreover, the proof hearing record does not include any 

evidence or argument supporting the vacation of Judge Smith's summary 

judgment order. The record is further bereft of any evidence plaintiffs or their 

counsel notified Spigelman that they would seek the vacation of Judge Smith's 

summary judgment order at either the trial or proof hearing. 

The judge who held the proof hearing entered plaintiffs' proposed ORDER 

REGARDING SPIGELMAN LOAN on June 30, 2017, without making any 

findings of fact or conclusions of law. See R. 1:7-4. Thus, the court's reasoning 

for its inexplicable entry of the order is unknown. 

9 The order required that it be "served upon all parties that have not settled and 

who appear herein within [seven] days after receipt hereof." The record on 

appeal does not establish service of the order on Spigelman or his counsel.
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Spigelman subsequently moved to vacate the ORDER REGARDING 

SPIGELMAN LOAN pursuant to Rule 4:50-1(c), arguing it was obtained by 

"fraud . . . , misrepresentation or other misconduct of an adverse party." More 

particularly, Spigelman claimed plaintiffs' counsel never informed the court 

about Judge Smith's summary judgment order and submitted the ORDER 

REGARDING SPIGELMAN LOAN even though there was no evidence 

presented during the proof hearing regarding Spigelman.

The court heard argument and entered a January 8, 2019 order granting 

Spigelman's motion, vacating the ORDER REGARDING SPIGELMAN LOAN, 

and providing that Judge Smith's "June 12, 2017 [order] 

granting . . . Spigelman's [m]otion for [s]ummary [j]udgment remains in full 

force and effect." Entry of the order is untethered to any findings of fact or 

conclusions of law. See R. 1:7-4. This appeal followed.

Plaintiffs present the following arguments for our consideration:

POINT I 

THE TRIAL COURT ERRED BY VIOLATING RULE 

4:46-1 IN THE SCHEDULING OF DISPOSITIVE 

MOTIONS ON THE EVE OF TRIAL[.]

POINT II 

ALTHOUGH JUDGE SMITH ENTERED SUMMARY 

JUDGMENT AS TO LIABILITY, THE TRIAL 
10 A-2616-18T2

COURT NEVER ENTERED A JUDGMENT 

AGAINST THE PLAINTIFFS[.]

POINT III 

ALTHOUGH JUDGE SMITH ENTERED SUMMARY 

JUDGMENT IN FAVOR OF MR. SPIGELMAN ON 

LIABILITY, THERE WERE MATERIAL ISSUES OF 

CONTESTED FACTS AND CROSSCLAIMS WHICH 

PRECLUDED SUMMARY DISPOSITION[.]

II.

Plaintiffs' arguments center solely on their claim Judge Smith erred by 

granting Spigelman's summary judgment motion. They argue Judge Smith 

incorrectly condensed the Rule 4:46 time frames for submission of the summary 

judgment motion papers;10 the summary judgment order was not final because it 

did not include a monetary amount; and there were genuine issues of material 

fact precluding a proper grant of summary judgment.

We reject plaintiffs' arguments because plaintiffs do not appeal from the

summary judgment order. Their notice of appeal lists only the January 8, 2019 

10

 The record reflects that despite the court's requirement that parties file 

dispositive motions on an accelerated basis prior to the impending trial date, 

plaintiffs filed opposition papers and a cross-motion for summary judgment. 

Plaintiffs' brief on appeal does not identify any evidence or facts demonstrating 

they were prejudiced by the accelerated schedule. They also do not make any 

showing that if the schedule had not been accelerated, they would have presented 

additional evidence affecting the disposition of the summary judgment motions. 
11 A-2616-18T2

order vacating the ORDER REGARDING SPIGELMAN LOAN. A notice of 

appeal in a civil action must "designate the judgment, decision, action or rule, 

or part thereof appealed from." R. 2:5-1(e)(3)(i). "[I]t is only the judgments or 

orders or parts thereof designated in the notice of appeal which are subject to 

the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, 

cmt. 6.1 on R. 2:5-1 (2020); see also 30 River Court E. Urban Renewal Co. v. 

Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006) (refusing to review 

orders dismissing the defendant's affirmative claims because they were not 

included in her notice of appeal); Campagna ex rel. Greco v. Am. Cyanamid 

Co., 337 N.J. Super. 530, 550 (App. Div. 2001) (refusing to consider an order

not listed in the notice of appeal). Thus, because plaintiffs appeal only from the 

January 8, 2019 order, the arguments presented, which challenge only the 

summary judgment order, are wholly inapposite to the order under review. 

In fact, plaintiffs offer no arguments challenging the order that is the 

subject of their appeal, and, for that reason alone, we affirm the court's January 

8, 2019 order. Nonetheless, we also address the merits of the order. 

Rule 4:50-1 is "'designed to reconcile the strong interests in finality of 

judgments and judicial efficiency with the equitable notion that courts should 

have authority to avoid an unjust result in any given case.'" Mancini v. EDS ex 
12 A-2616-18T2

rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993) (quoting 

Baumann v. Marinaro, 95 N.J. 380, 392 (1984)). A court's grant of relief under 

the Rule "warrants substantial deference, and should not be reversed unless it 

results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Guillaume, 209 

N.J. 449, 467 (2012). Plaintiffs make no showing the court abused its discretion 

by entering the January 8, 2019 order, and the record does not support such a 

finding. 

The ORDER REGARDING SPIGELMAN LOAN was entered following 

the summary judgment order that disposed of all of plaintiffs' claims against 

Spigelman and granted Spigelman judgment against plaintiffs for their 

obligations under the note. Plaintiffs and their counsel were aware of the

disposition and that Judge Smith appropriately advised Spigelman his further 

participation in the proceedings in the case was unnecessary. Although they 

were apparently dissatisfied with the summary judgment order, plaintiffs opted 

not to seek reconsideration from Judge Smith in accordance with Rule 4:49-2. 

Judge Smith's summary judgment order was interlocutory, and the new 

judge was "empowered to revisit the prior ruling and right the proverbial ship"

if such relief was warranted. Lombardi v. Masso, 207 N.J. 517, 537 (2011). 

However, "[p]rocedurally, where a judge is inclined to revisit a prior 
13 A-2616-18T2

interlocutory order," it is "critical . . . that he [or she] provide the parties a fair 

opportunity to be heard on the subject," so they "may argue against 

reconsideration and advance claims of prejudice." Ibid. After a judge 

determines to revisit a prior order, "he [or she] must apply the proper legal 

standard to the facts and explain" the reasons reconsideration is appropriate. 

Ibid. For example, where a court decides to reconsider an order granting 

summary judgment, it "should apply Rule 4:46-2 and explain what genuine 

issues of material fact require trial." Id. at 537-38.

In Lombardi, the Court affirmed a judge's decision to vacate an

interlocutory summary judgment order based on evidence produced during a 

subsequent proof hearing. Id. at 523-24. The Court noted, however, that after 

considering the evidence presented at the proof hearing, the judge first "advised 

the parties of his concern that the case was more complex than he had originally 

intuited and gave them the record of the proof hearing, ample time to prepare, 

and an opportunity to weigh in on what he was considering." Id. at 538. The 

Court concluded that under those circumstances, "the trial judge abided by all 

of the relevant principles in determining to revisit his original summary 

judgment order." Ibid.
14 A-2616-18T2

Here, plaintiffs settled their claims against Vassallo and participated in a 

proof hearing against the only defendant remaining in the case, Patsaros. 

Plaintiffs and their counsel never notified Spigelman they intended to seek relief 

from the summary judgment order at the trial or proof hearing, never mentioned 

Spigelman or the summary judgment order during the proof hearing, and never 

advised the new judge they sought relief from Judge Smith's summary judgment 

order. Thus, they not only deprived Spigelman of what the Supreme Court in 

Lombardi described as the "critical . . . opportunity" to be heard on the

reconsideration of the summary judgment order, 207 N.J. at 537, they also 

deprived the new judge of the knowledge that he was being asked to reconsider 

and vacate a prior court order. 

Following the hearing, plaintiffs submitted an order, without notice to 

Spigelman, that effectively reversed the summary judgment order entered in his 

favor. They indirectly accomplished what they failed to do directly; obtain 

reconsideration of the summary judgment order without filing a motion for 

reconsideration with Judge Smith or notifying the new judge about the summary 

judgment order and expressly requesting he reverse it. Plaintiffs acted with the 

apparent hope the unsuspecting new judge would simply enter their order 

following a hearing at which Spigelman was not present and no opposition was 
15 A-2616-18T2

presented. Their strategy worked. The judge entered plaintiffs' proposed 

ORDER REGARDING SPIGELMAN LOAN.

The court's entry of the order violated Spigelman's basic due process right 

to notice of the proceedings at which summary judgment entered in his favor 

was reversed; was inconsistent with the principles espoused by the Supreme 

Court in Lombardi, 207 N.J. 537-38; and in part it was the result of an 

indefensible lack of disclosure to the new judge that judgment previously had 

been entered in Spigelman's favor.11 Moreover, the testimony presented at the 

proof hearing did not support the entry of the order reversing Spigelman's 

judgment.12

11

 We prefer to attribute plaintiff's counsel's failure to advise the court about 

Judge Smith's summary judgment order to a lack of attention or inadequate 

preparation, and not to an intentional violation of his duty of candor to his

adversary and the court. See R.P.C. 3.3(a)(1); McKenney v. Jersey City Med. 

Ctr., 167 N.J. 359, 371 (2001) (noting "[l]awyers have an obligation of candor 

to each other and to the judicial system").

12

 The ORDER REGARDING SPIGELMAN LOAN refers to what appear to be 

two exhibits, "P33" and "Exhibit 35," as support for the court's findings. The 

proof hearing transcript, however, reflects that neither purported exhibit was 

marked for identification or admitted in evidence. Plaintiffs are responsible to 

provide the "parts of the record . . . as are essential to the proper consideration 

of the issues," R. 2:6-1(a)(1)(I), including all of the relevant transcripts of the 

proceedings, R. 2:5-3(a); see also Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 

(2004) (affirming the Appellate Division's refusal to address an issue because 

the appellant failed to provide the transcript from the proceedings from which 
16 A-2616-18T2

Under these circumstances, we find no abuse of the court's discretion in 

its January 8, 2019 order vacating the improvidently entered ORDER 

REGARDING SPIGELMAN LOAN. See Guillaume, 209 N.J. at 467. The 

record supports a finding Spigelman was entitled to relief from the order under 

Rule 4:50-1(c) due to plaintiffs' misconduct in failing to provide notice to 

Spigelman they intended to seek a reversal of the summary judgment order at 

the proof hearing; failing to inform the new judge summary judgment had been 

entered in Spigelman's favor; and submitting a proposed order, without notice 

to Spigelman, on an issue not directly presented to the new judge and for which 

there was no support in the proof hearing record. We also conclude relief from 

the order was required under Rule 4:50-1(f). That is, Spigelman was entitled to 

relief from the ORDER REGARDING SPIGELMAN LOAN based on the 

totality of the exceptional circumstances presented and because enforcement of 

the order would be unjust and inequitable. See id. at 484. As noted, plaintiffs 

offer no arguments to the contrary.

Affirmed.

the appeal was taken); Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. 

Super. 163, 177-78 (App. Div. 2002) (declining to address issues requiring 

review of portions of the trial record not included in the record on appeal).