11-2-4422 Design Management Serv., Inc. v. Broad-Atlantic Assoc., LLC, N.J. Super. App. Div. (Gooden Brown, J.A.D.) (14 pp.) Defendant appealed the dismissal of its counter claims and the award of judgment to plaintiff in plaintiff’s breach of contract action. Despite defendant’s contention, the trial court did not abuse its discretion in denying defendant’s motion to transfer the case, based on the fact that its counterclaims exceeded the jurisdictional limit of the Special Civil Part, because defendant’s motion was procedurally defective and untimely. An Order to Show Cause was not the appropriate vehicle for a transfer motion and defendant was not prejudiced by the denial since the court considered defendant’s counterclaims and found no cause of action on them. Defendant was not prejudiced by the trial court’s decision to allow plaintiff to file its answer to the counterclaim out of time given defendant’s failure to move earlier for entry of default judgment. Defendant’s argument that plaintiff’s failure to respond to discovery should have resulted in the dismissal of plaintiff’s complaint was untimely because defendant made no motion to depose plaintiff’s president or to compel or extend the time for discovery within 90 days of filing its answer. Additionally, defendant suffered no prejudice because all documents submitted into evidence were either provided to defendant or already in its possession.
11-2-4429 Elar Realty Co. v. Environmental Risk Limited, N.J. Super. App. Div. (per curiam) (8 pp.) The parties entered into a written contract for respondent to perform services related to the remediation of appellant’s property. The contract contained a provision that required appellant to bring any legal action within a year after respondent ceased providing services and was silent as to the assignment of any interest in the agreement. After respondent-ERL commenced performing services, it entered into an asset purchase agreement with respondent-GZA whom purchased all assets and open contracts; appellant was not part of such agreement but was eventually provided notice of the transaction. Following termination of the contract for alleged deficiencies in work, appellant filed the underlying action. On motion, the trial court granted respondents summary judgment holding there was no obstacle to respondent-ERL assigning contract to respondent-GZA and that the action was barred by the contract’s one-year statute of limitations. On appeal, appellant argued that respondents merged making respondent-GZA responsible for all liabilities and that the contract for personal services could not be assigned without its agreement. The court affirmed holding the one-year statute of limitation agreed to by the parties was enforceable and that appellant’s contract was freely assignable. Finally, the court found that appellant’s remaining arguments, not previously before the trial court, were without sufficient merit to warrant a written opinion.
