TADROS et al v. CITY OF UNION CITY et al

Filing 96

OPINION. Signed by Judge Dennis M. Cavanaugh on 12/30/11. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
ADIP J. TADROS and NORMA
:
TADROS,
:
:
Plaintiffs,
:
:
v.
:
CITY OF UNION CITY MAYOR BRIAN :
P. STACK; JOHN MEDINA; MARTIN :
:
MARTINETTI; FRANCO
ZANDARDELLI; LUCIO FERNANDEZ; :
CHRISTOPHER F. IZIZARRY; TILO E. :
:
RIVAS; MARYBURY BOMBINO;
ANDRES GARCIA; MIGUEL ORTIZ; :
:
VICTOR MERCADO; VICTOR
:
GRULLON; MARGARITA
:
GUTIERREZ; DENIS VELEZ; C.
:
VALBIVIA; THE STATE OF NEW
JERSEY; EMPIRETECH CONSULTING :
ASSOCIATION INC.; SHERIF H. EL- :
:
FAR P.E.; CONNIE YOUNIS; JOSE
IZQUIERDO; JAI ARCHITECTS LLC; :
:
ABBAS A. SHAH; RONALD
ABRAHAM, ESQ.; GREGG F. PASTER, :
ESQ.; WILFREDO J. ORTIZ, II, ESQ.; :
:
J.D.P. CONSTRUCTION SERVICES,
:
INC.; JUAN DE LA PAZ; JAY B.
ZUCKER, ESQ.; ROSE RUBITO, ESQ.; :
DAVID M. WATKINS, ESQ.; 54 INC.; :
ORTIZ AND PASTER LAW OFFICES; :
:
JAY B. ZUCKER & KWESTEL, LLP;
:
and, JOHN DOES,
:
:
Defendants.

Hon. Dennis M. Cavanaugh

OPINION
Civil Action No. 10-CV-2535 (DMC)(MF)

DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon the motion for summary judgment by Defendants

the City of Union City Zoning Board of Adjustment (hereinafter, “Zoning Board”), John Medina,
Anderes Garcia, Miguel Ortiz, Justin Mercado, Vincent Caruso, Carlos Vellejo, Victor Grullon,
Margarita Guitierrez, Denis Velez, and C. Valbivia (hereinafter, “Zoning Board Members” or
“Members”). Pursuant to Federal Rule of Civil Procedure 78, no oral argument was heard. After
considering the submissions of all parties, and for the reasons set forth below, it is the decision of
this Court that the City of Union Defendants’ motion for summary judgment is granted.
I.

STATEMENT OF FACTS
The underlying facts of this case involve the construction and planning of a property named

“Billiard Parlor and Catering Services,” in Union City, New Jersey (hereinafter, the “Billiard
Parlor”). (Pl.’s Mot. for Recons. Ex. A, May 9, 2011, ECF No. 75-1.) Plaintiffs have filed four
actions in total, three in the Superior Court of New Jersey, Hudson County and the fourth in this
Court. Two of the three Superior Court actions involved malpractice claims against attorneys who
represented Plaintiffs on their claims in state court.
One of the four superior court actions was filed on October 21, 2008. Plaintiffs, represented
by Rose Tubito, Esq., filed suit in the Superior Court of New Jersey, Hudson County against John
Medina and the Zoning Board and each of its members individually, among others. (City of Union
City Mot. for Summ. J. ¶ 1, May 19, 2011, ECF No. 81.) On November 13, 2009, the Honorable
Shirley A. Tolentino granted summary judgment to the Zoning Board and each of its individual
members individually finding no genuine issues of material fact and granted judgment as a matter
of law. (Pl.’s Mot. for Recons. Ex. D, at 7, May 9, 2011, ECF No. 75-1.)
The Zoning Board and its Members filed for summary judgment on May 19, 2011. The
motion is unopposed by Plaintiffs. Plaintiffs’ prayer for relief in this Court includes various fraud,
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breach of contract and breach of fiduciary duty claims against Union City officials. (Opinion, March
31, 2011, ECF No. 67.) Plaintiffs claim Defendant John Medina and his agents purposely delayed
zoning approvals and extorted Plaintiffs for the permits needed to undertake construction on the
Billiard Parlor. (Def.’s Mot. for Summ. J. 5, May 19, 2011, ECF No. 81.) Additionally, Plaintiffs
state that the same harassed them for payments in exchange for the allowance to continue developing
and constructing the Billiard Parlor and threatened other businesses they owned. Id. Defendants
filing this motion for summary judgment include the City of Union City Zoning Board members
individually: Anderes Garcia, Miguel Ortiz, Justin Mercado, Vincent Caruso, Carlos Vellejo, Victor
Grullon, Margarita Gutierrez, Denis Velez and C. Valbivia.
II.

STANDARD OF REVIEW
1. Summary Judgment
It is well established that this Court is to review the facts in the light most favorable to the

Plaintiff. Marzano v. Computer Sci. Corp. Inc., 91 F.3d 497, 501 (3d Cir.1996); see also, Dowling
v. Citizens Bank, 295 Fed.Appx. 499 (3d Cir. 2008). Summary judgment is appropriate where there
are no genuine material issues of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (2008).
A factual dispute is material if, under the substantive law, it would affect the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-moving party “may not rest
upon the mere allegations or denials of his pleading” to satisfy this burden, but must produce
sufficient evidence to support a jury verdict in his favor. Fed. R. Civ. P. 56(e); see also Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The Third Circuit holds that “in considering a motion for summary judgment, a district court
may not make credibility determinations or engage in any weighing of the evidence; instead, the non3

moving party's evidence is to be believed and all justifiable inferences are to be drawn in his favor.”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Lack of opposition to a motion for summary judgment is not a sufficient basis, on its own,
for granting judgment in favor of the moving party. Grant of a summary judgment motion must also
be “appropriate.” Anchorage Assoc. v. V.I. Bd. of Tax L. Rev., 922 F.2d 168, 175 (3d Cir. 1990)
(citation omitted). Even though Rule 56(e) requires a non-moving party to “set forth specific facts
showing that there is a genuine issue for trial”, it is “well-settled ... that this does not mean that a
moving party is automatically entitled to summary judgment if the opposing party does not respond.”
Id. Lack of opposition does not affect the standard guiding a summary judgment motion and the
Court must determine whether judgment is appropriate, as a matter of law, as a result of the finding
of no genuine issues of material fact to be tried.
2.

Claim Preclusion

New Jersey’s Entire Controversy Doctrine requires that “all related claims against a particular
adversary” be asserted in one action, “or be precluded from bringing a second action based on the
omitted claims against that party.” Melikian v. Corradetti, 791 F.2d 274 (3d Cir. 1986), distinguished
on other grounds by Bennun v. Rutgers State Univ., 941 F.2d 154, 166 (3d Cir. 1991) and Paramount
Aviation Corp. v. Agusta, 178 F.3d 132, 139 n. 4 (3d Cir. 1999).
The standard requirements for collateral estoppel, as set forth by the Third Circuit, include:
(1) the identical issue was previously adjudicated; (2) the issue was actually litigated1; (3) the
previous determination was necessary to the decision; and (4) the party being precluded from

1

“Actually litigated” means properly raised in an earlier lawsuit, submitted to the court for
a determination, and determined. Black’s Law Dictionary (9th ed. 2009).
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relitigating the issue was fully represented in the prior action. Szehinskyj v. Att’y Gen. of U.S., 432
F.3d 253, 255 (3d Cir. 2005) (citing Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 209 (3d
Cir. 2001); and Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir.1995)) (citation omitted).
III.

DISCUSSION
Plaintiffs filed suit against John Medina, the Zoning Board and the Members individually in

the state court on October 21, 2008. (Def.’s Mot. for Summ. J. ¶ 1, May 19, 2011, ECF No. 81.)
Defendants John Medina, the Zoning Board and the Members individually moved for summary
judgment in that action. Id. at ¶ 12. On November 13, 2009, Judge Tolentino granted Defendants
motion for summary judgment finding “there are no genuine issues of material fact remaining, and
the movants are entitled to judgment as a matter of law.” Id. at 13.
The state court action considered related claims against the same adversaries arising out of
the same facts underlying the instant matter. The state court considered identical issues, such as, but
not limited allegations against Defendants surrounding extortion, fraud and delay of approvals. The
case was actually litigated being raised, submitted to the Superior Court and determined by Judge
Tolentino. The previous determination on the issues was necessary to Judge Tolentino’s decision
that there were no genuine issues of material fact. She further found that “Plaintiffs had not
complied with the notice requirements of the NJ Tort Claims Act.” (Pl.’s Mot. for Recons. Ex. D,
at 7-8, May 9, 2011, ECF No. 75-1.)
Further, at this point, this Court cannot find that Plaintiffs were not fully represented in the
prior action. Plaintiffs enlisted Rose Tubito, Esq. to represent them in filing their state court
complaint. This Court dismissed Plaintiffs’ malpractice claims against Tubito in the Opinion and
Order filed March 31, 2011. (Opinion at 17, March 31, 2011, ECF No. 67.) Given the dismissal,
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this Court will not relitigate the issues already adjudicated on this point and the finding that Plaintiffs
failed to state a claim for relief against prior counsel. Just as Plaintiffs’ broad based claims in the
instant matter are precluded on collateral estoppel grounds, the issue of Plaintiffs’ full representation
in the prior action has already been decided and will not be determined anew.
As the requirements for imposing collateral estoppel are met here, Plaintiffs’ claims are
precluded. The claims do not present genuine issues of material fact to successfully surmount
Defendants’ motion for summary judgment.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted. An

appropriate Order accompanies this Opinion.
s/ Dennis M. Cavanaugh
Dennis M. Cavanaugh, U.S.D.J.
Dated:
Original:
cc:

December 30th , 2011
Clerk
All Counsel of Record
Hon. Mark Falk, U.S.M.J.
File

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