Burden of Proof and Summary Judgment Dismissal – Real Estate Transaction

Submitted by New Jersey Civil Lawyer, Jeffrey Hark
34-2-5430 D’Agostino v. Gesher LLC, App. Div. (per curiam) (19 pp.) In this action plaintiff is making a claim against the selling (defendant’s) bank’s broker and attorneys – alleging they interfered with plaintiff’s opportunity to enter into a contract to purchase property, The Law Division’s orders dismissing his complaint for failure to state a claim upon which relief could be granted and denying his motion for reconsideration.

Summary Judgment Dismissal

The Appellate Court stated quit directly that summary dismissal at this stage of the litigation was particularly inappropriate because genuine issues of material fact existed as to whether the seller accepted plaintiff’s offer to purchase property and whether defendants tortiously interfered with plaintiff’s attempt to purchase that property. In other words, the standard employed before the court dismisses a case without access to a jury at this early stage of the game is, giving the plaintiff every benefit of the doubt, and all inferences in plaintiff’s favor as the non-moving party at this motion stage, are there any material facts upon which a jury could rely to arrive at a verdict in favor of plaintiff if the discovery record is complete and the discovery window has closed.  Here the appellate court ruled the trial court’s dismissal at this juncture was inappropriate because upon reviewing the factual record anew, if found there was material facts which could have supported plaintiff’s claim and hence, there did exist the ability of a jury to return a verdict in plaintiff’s favor.  As a result, the case should be reinstated and plaintiff should be entitled to proceed.

Finding that the trial court erred in concluding that the action sounded in contract and dismissing the complaint on the basis that there was no proof of an executed contract, and that the complaint and accompanying proofs adequately stated a claim for, inter alia, tortious interference with a prospective economic benefit, which did not require an executed contract, the panel held that dismissal was inappropriate and reversed and remanded to a different judge.

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