SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-1785-18T2

 A-1786-18T2

CHANA RINGEL and 

CR LAKEWOOD, LLC, 

individually, and derivatively

on behalf of BCR LAKEWOOD

HOLDINGS, LLC, 

Plaintiffs-Respondents,

v.

BR LAKEWOOD, LLC and

BENJAMIN RINGEL, 

 

Defendants-Appellants.

CHANA RINGEL, individually, 

and derivatively on behalf of BCR

OAKRIDGE, LLC,

Plaintiffs-Respondents,

v.

BENJAMIN RINGEL, and SUNSET

HILL OAKRIDGE PLAZA, LLC,

 

Defendants-Appellants.

NOT FOR PUBLICATION WITHOUT THE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-1785-18T2

Argued telephonically April 21, 2020 –

Decided June 17, 2020

Before Judges Yannotti, Currier and Firko. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Ocean County, Docket Nos. C000127-15 and C-000152-16.

Bruce H. Nagel argued the cause for appellants (Nagel 

Rice, LLP, attorneys; Bruce H. Nagel and Robert H. 

Solomon, of counsel and on the briefs). 

Matthew N. Fiorovanti argued the cause for 

respondents (Giordano, Halleran & Ciesla, PC, and 

Koffsky Schwalb, LLC, attorneys; Matthew N. 

Fiorovanti and Efrem Schwalb, on the briefs).

PER CURIAM

In these back-to-back appeals, defendants1appeal from the December 7, 

2018 orders denying their motions to dismiss the complaint and compel 

arbitration. The Chancery court concluded defendants waived their right to 

arbitration. We agree and affirm.

Plaintiff Chana Ringel and defendant Benjamin Ringel are siblings who 

purchased a shopping center (Oakridge property) from their father in 2004. 

 

1 We refer to defendants in both cases collectively as "defendants." Otherwise 

we refer to them as the Lakewood defendants and the Oakridge defendants when 

discussing the individual cases.
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They established BCR Oakridge, LLC to serve as the holding company for the 

property. In 2010, Chana and Benjamin purchased a collection of properties 

(Lakewood properties) from various revocable trusts set up by their father. BCR 

Lakewood Holdings, LLC was formed to serve as the holding company for the 

Lakewood properties. 

The operating agreements for both holding companies include a dispute 

resolution procedure. In essence, if Chana and Benjamin are unable to resolve

an issue regarding the management of the business, their respective positions on 

the issue are submitted to an arbitrator for a binding determination on which 

position is in the best interest of the business.

In June 2015, plaintiffs filed a verified complaint against Benjamin and 

BR Lakewood, LLC (Lakewood matter), alleging Benjamin mismanaged BCR 

Lakewood and engaged in self-dealing. In its answer, the Lakewood defendants

raised multiple affirmative defenses, including dismissing the complaint and 

compelling arbitration under the operating agreement. A counterclaim also 

included a request for enforcement of the arbitration clause.

In July 2016, plaintiffs filed a verified complaint against Benjamin and 

Sunset Hill Oakridge Plaza, LLC (Oakridge matter). The complaint alleged that 

Benjamin mismanaged BCR Oakridge, resulting in the foreclosure of the 
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Oakridge property. In addition, Benjamin, through Sunset, later purchased the 

Oakridge property at a sheriff’s sale without notifying Chana. The Oakridge 

defendants' answer and counterclaim did not raise the arbitration agreement as 

an affirmative defense. 

The parties engaged in extensive litigation in both cases for the next two 

years, including the exchange of written discovery, and multiple motions 

concerning the production of financial documents. In the Oakridge matter, the

court held numerous case management conferences, resulting in the issuance of

five case management orders. The October 26, 2018 order set a trial date for 

June 25, 2019.

In the Lakewood matter, multiple motions were filed concerning the 

court's appointment of a special fiscal agent and the agent's role in the litigation.

The court ruled on discovery and summary judgment motions and issued six 

case management orders. The October 26, 2018 order also scheduled trial for 

June 25, 2019.

Defendants moved in October and November 2018 to dismiss the 

Lakewood and Oakridge matters and compel arbitration. Plaintiffs opposed the 

motions, asserting that defendants had waived their right to arbitration as 

established under Cole v. Jersey City Med. Ctr., 215 N.J. 265 (2013).
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In addressing the Cole factors, plaintiffs noted forty-one months had 

elapsed between the filing of the Lakewood complaint and defendants' 

application; twenty-seven months had passed since the filing of the Oakridge 

complaint. They also described the extensive discovery and protracted motion 

practice in the litigations, causing them to incur substantial financial expense.

In addition, plaintiffs pointed out that in the Oakridge matter, defendants did not 

raise arbitration as an affirmative defense.

In response, defendants refuted plaintiffs' arguments. They also asserted, 

that as an Orthodox Jew, Benjamin held a religious belief that it was his 

obligation not to litigate in a secular court against another Jewish person. 

Benjamin explained that was the reason why he delayed asserting his right to 

arbitration.

In its December 7, 2018 decision denying defendants' motions, the

Chancery court referenced the Cole factors, stating:

The question is whether the parties have waived 

arbitration through their actions. In determining 

whether a party has waived its right to compel 

arbitration, . . . [t]he [c]ourt must weigh a series of 

factors, examining those factors in the[ir] context and 

based upon a totality of the circumstances to make a 

decision.

. . . .
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As plaintiff[s] rightly point[] out, there has been 

a significant delay in making the arbitration request, 

. . . on the defendant[s'] behalf. The defendant[s] have 

continued to make motions in this case, litigating it . . . 

as if they were not anticipating moving to arbitration.

Relating to the third and fourth factor, discovery 

has certainly been conducted in this case. Again, to the 

uninitiated it may appear that the delay in . . . the 

request to arbitrate may be a part of the litigation 

strategy.

I'll note that Ben[jamin] is a sophisticated party. 

As he noted in his certification, he participated in 

litigation with his father and his uncle for [twenty-one]

years. He's also involved in . . . numerous commercial 

real estate operations.

Presumably, in filing this complaint and 

consulting with his lawyer, they discussed . . . the high 

value that he's placed on the religious aspects of 

litigating against one's sister, that he had to consider 

this . . . greatly at the beginning of this initiation of this 

litigation, and with consultation with his lawyer chose 

to not pursue the arbitration early on. It can only be 

assumed by the [c]ourt that this was a litigation 

strategy.

I would also note that . . . much of the litigation 

involved in this matter also involves finance or the 

surrounding issues involve finance. And, presumably, 

the availability of finance . . . may have been a 

consideration and a tactic in delay in this matter.

Under the circumstances, I'm satisfied . . . that 

factor does weigh against transferring the matter [to 

arbitration]. Moreover, arbitration . . . was not raised 

[as] an affirmative defense in defendant[s'] answer.
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And, finally, there is . . . a pending trial date in 

this case. As in Cole, a trial date has been set. 

[P]ermitting arbitration at this time would without 

doubt prejudice the plaintiff[s].

I'll note that, further, . . . reviewing . . . those 

factors, with regard to the filing of the motions, 

particularly dispositive motions in the matter, there 

have been multiple lawyers . . . for Ben[jamin]. There 

has been a lengthy discovery over . . . three years in one 

case, two years in the other case. There . . . have been 

applications to [transfer the case to the Law Division]. 

. . . 

All of these things had to [be weighed] and the 

[c]ourt finds that at . . . this late date, that permitting 

arbitration would be a prejudice to the plaintiffs having 

spent the time, and effort in conducting discovery and 

preparing for trial, and the extraordinary . . . efforts that 

were taken in obtaining the discovery . . . . 

In their reply defendants argue that litigating this 

case in a secular court would create undue 

entanglement between government and religion in 

violation of the establishment clause. . . . Deciding the 

case at hand does not require this [c]ourt to determine 

religious law. In essence, Ben[jamin] has accused 

Chana of violating secular prohibitions and the mere 

fact that Ben[jamin] . . . is religious and Chana is 

religious, a fact that this [c]ourt does not doubt, it does 

not entitle them to arbitration.

The allegations are straightforward. The 

allegations are founded in the law as applied to the 

business entities and . . . the parties' cross-claims allege 

violations of fiduciary duties . . . involved with the 
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business entities and don't have any religious aspects at 

all. 

The [c]ourt is satisfied that it can decide this case 

without having to entangle itself with any religious 

doctrine . . . and at this time it would [be] inappropriate 

for this [c]ourt to compel arbitration. Likewise, the 

[c]ourt will not stay the matter. 

On appeal, defendants contend the court (1) exceeded its jurisdiction in 

determining defendants waived their right to compel arbitration; and (2) erred 

in finding defendants waived their right to compel arbitration without 

conducting an evidentiary hearing. We are unconvinced by these arguments.

In Cole, the Court established factors for a court, not an arbitrator, to 

evaluate in assessing whether a party to an arbitration agreement waived its right 

to arbitrate. 215 N.J. at 280 (citations omitted). Therefore, defendants' 

argument that the trial court lacked jurisdiction to determine the waiver issue is 

without merit.

Our review of the court's decision is de novo. Id. at 275 (citations 

omitted). However, "the factual findings underlying the waiver determination 

are entitled to deference and are subject to review for clear error." Ibid. (citing 

Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). 

In conducting our review, we are governed by the principles established in Cole. 
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"Any assessment of whether a party to an arbitration agreement has 

waived that remedy must focus on the totality of the circumstances." Id. at 280. 

"In deciding whether a party . . . waived its right to arbitrate, [a court] 

concentrate[s] on the party's litigation conduct to determine if it is consistent 

with its reserved right to arbitrate the dispute." Ibid. The following factors 

should also be considered: 

(1) the delay in making the arbitration request; (2) the 

filing of any motions, particularly dispositive motions, 

and their outcomes; (3) whether the delay in seeking 

arbitration was part of the party's litigation strategy; (4) 

the extent of discovery conducted; (5) whether the party 

raised the arbitration issue in its pleadings, particularly 

as an affirmative defense, or provided other notification 

of its intent to seek arbitration; (6) the proximity of the 

date on which the party sought arbitration to the date of 

trial; and (7) the resulting prejudice suffered by the 

other party, if any.

[Id. at 280-81.]

In addition, a court will find waiver occurred "if arbitration is simply 

asserted in the answer and no other measures are taken to preserve the 

affirmative defense." Id. at 281 (citations omitted). 

We turn to the court's findings underlying the waiver determination in this 

case. In considering the delay in requesting arbitration, the court noted the 

considerable length of time between the start of litigation and defendants'
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motion to compel arbitration. The delay was forty-one months in the Lakewood 

matter and twenty-seven months in the Oakridge matter.

The court addressed factor two in stating defendants filed dispositive 

motions. The record reflects defendants filed a motion for partial summary

judgment and a compelled buyout of plaintiffs' interests, in addition to nine other 

applications, in the Lakewood matter. In the Oakridge litigation, defendants

filed a motion to transfer the case to the Law Division.

In considering factor three, the court found the delay in requesting 

arbitration was part of a litigation strategy. In light of our deferential standard 

given to the trial court's fact-finding, we cannot discern any error in this 

conclusion reached after presiding over this contentious litigation for more than

three years. Moreover, defendants filed the motion to compel arbitration shortly 

after the court sanctioned them in the Oakridge matter for failing to comply with 

discovery orders. 

The trial court acknowledged the extensive discovery conducted by the 

parties in his assessment of factor four. Thousands of documents had been 

exchanged. Written discovery had concluded in the Lakewood case.

Under factor five, the court noted defendants only raised the arbitration 

agreement as an affirmative defense and counterclaim in the Lakewood matter. 
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However, as stated above, defendants did not pursue arbitration until forty-one 

months after the initiation of that suit. In addressing factor six, the court 

observed there was a scheduled trial date in both cases.

Finally, in considering factor seven, the court concluded that plaintiffs 

would be prejudiced if required to go to arbitration because of the time and 

"extraordinary" effort expended in conducting discovery and in preparing for 

trial. The trial court's finding comports with the guidance enunciated on this 

factor in Cole: "If we define prejudice as '"the inherent unfairness—in terms of 

delay, expense, or damage to a party's legal position—[then prejudice] occurs 

when the party's opponent forces it to litigate an issue and later seeks to arbitrate 

that same issue."'" 215 N.J. at 282 (alteration in original) (quoting PPG Indus.

v. Webster Auto Parts, 128 F.3d 103, 107 (2d Cir. 1997)). 

We discern no error in the court's finding that the Cole factors weighed in 

favor of plaintiffs. We reject defendants' assertion that the court erred in not 

holding an evidentiary hearing. Defendants did not request an evidentiary 

hearing before the Chancery court. They did not raise this issue until the appeal.

Moreover, defendants have not presented this court with any information that 

might have been gleaned from a hearing. We are satisfied there was sufficient 
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evidence in the record to support the court's conclusion that defendants waived 

their right to arbitration, requiring a denial of the motion to compel arbitration. 

Affirmed.