BINA SHAH VS. MAGUIRE BURKE, INC. REAL ESTATE AGENCY(L-0837-13, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1856-15T2

BINA SHAH,

Plaintiff-Appellant,

v.

MAGUIRE BURKE, INC.
REAL ESTATE AGENCY,

Defendant-Respondent.
_________________________________

Argued May 2, 2017 – Decided September 19, 2017

Before Judges Koblitz and Sumners.

On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-837-
13.

Bina Shah, appellant, argued the cause pro se.

Respondent has not filed a brief.

The opinion of the court was delivered by

SUMNERS, J.A.D.

Plaintiff Bina Shah appeals from the November 17, 2015 order

denying her motion for reconsideration of a June 3, 2015 order,

which denied her default judgment request for an unpaid commission
from defendant Maguire Burke Real Estate, Inc. Real Estate Agency.1

We affirm.

Plaintiff was employed by defendant, a real estate broker,

as a licensed real estate salesperson under a written employment

contract. Plaintiff sued defendant alleging she was entitled to

an additional commission of $80,000 from the sale of a banquet

facility/liquor store (the property) that had occurred five years

ago.2 Default was subsequently entered against defendant when no

answer to the complaint was filed.

In a June 3, 2015 order, the trial court denied plaintiff's

unopposed pro se motion for entry of default judgment.3

1
Plaintiff's notice of appeal seeks review only of the court's
November 17, 2015 order denying her motion for reconsideration,
not the June 3, 2015 order denying entry of default judgment. We
could, therefore, limit our review to that order alone. See W.H.
Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455,
458 (App. Div. 2008); Fusco v. Bd. of Educ. of City of Newark, 349
N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544,
(2002). We choose to overlook that technical error and consider
the merits of defendant's appeal because "the substantive issues
in the case and the basis for the . . . judge's ruling [at motion
to enter default judgment] and [the] reconsideration motion[]
[were] the same." Fusco, supra, 349 N.J. Super. at 461.

2
Her claim for "tortious interference with a contractual
relationship and prospective economic advantage" is not the
subject of appeal.
3
Based upon the record provided, we assume that the court's
ruling was on the papers without an oral or written opinion by the
court.

2 A-1856-15T2
Apparently, plaintiff did not present sufficient proofs because

the order stated that she could file a motion for reconsideration

or a motion to vacate the order, and such motion needed to provide:

1. The agreement which governs commissions
allegedly due and owing to [p]laintiff;

2. A copy of the signed real estate contract;

3. A copy of the applicable statutes or
administrative codes that govern
[p]laintiff's affirmative claims;

4. A list of commission checks received by
[p]laintiff; [and]

5. A written calculation of the real estate
commissions which have been paid and which
[p]laintiff claims are due and owing.

Plaintiff submitted a motion for reconsideration directly to

the trial court, which the court directed her to file with the

court clerk. Plaintiff was further directed to submit a written

certification providing the amount of commission she was paid and

the amount due. She complied, submitting a certification stating

she was due $74,308 based upon a forty percent commission on

defendant's gross five percent commission on the property's seven

million dollar original contract purchase price. As with

plaintiff's motion for default judgment, defendant submitted no

opposition.

3 A-1856-15T2
 On November 17, 2015, the court entered an order denying

plaintiff's reconsideration motion and rendered an oral opinion.

The court determined that based upon an addendum to the contract

of sale executed by the seller, buyer, and defendant, the purchase

price was reduced to $6.7 million and the commission was reduced

to $200,000. The court noted that, according to the real estate

closing statement, the property actually sold for only $6,550,000,

but defendant was still paid a $200,000 commission.

The court found no merit to plaintiff's contention that she

was entitled to an additional commission due to a buyer she

produced who executed a letter of intent to purchase the property

for $7.4 million, because a contract was not executed for that

amount.

After plaintiff appealed, the trial court submitted a written

amplification of its decision. R. 2:5-1(b). Based upon

plaintiff's submission, the court found that, shortly following

the property's October 8, 2008 closing, she received $43,750, a

twenty-five percent commission based upon the following

calculation:

Sales Price $6,550,000

Defendant's %5 base commission $200,000
Less fee to P. Ryan Consulting, LLC $25,000

Balance $175,000

4 A-1856-15T2
 25% commission $43,750
Less advance $4,308
Paid to plaintiff after closing $39,442

Sometime after the sale, plaintiff received an additional

commission check from defendant in the amount of $26,250.4 The

court therefore found that plaintiff received a total commission

of $70,000 from the property sale, forty percent of $175,000.5

Plaintiff argues that defendant's $25,000 payment to P. Ryan

Consulting violates N.J.S.A. 45:15-3, and the payment of her

additional $26,250 commission was untimely under N.J.S.A. 45:15-

3.1.

In accordance with Rule 4:43-2(b), a plaintiff may be granted

a judgment by default upon application to the court where a default

has been properly entered against a defendant. The rule gives the

court authority to "determine the amount of damages" through a

proof hearing "as it deems appropriate." Ibid. A plaintiff is

4
It is unclear from the record when the check was received.
According to plaintiff's certification dated November 24, 2014,
she received the check seven weeks after the closing. However,
almost ten months later, she submitted another certification that
the additional commission check was received two-and-a-half weeks
after the closing. The certification included an exhibit of a
check stub with defendant's name and the following type:
"10/27/2008," "Bina Shah," "$26,250," and "Cedar Gardens – CZ
Patel." Cedar Gardens is the name of the property.
5
$4308 advance, plus $39,442, plus $26,250.

5 A-1856-15T2
also required "to furnish proof [as to] liability." Johnson v.

Johnson, 92 N.J. Super. 457, 464 (App. Div. 1966); accord Slowinski

v. Valley Nat'l Bank, 264 N.J. Super. 172, 183 (App. Div. 1993).

"[T]he question of what proofs are necessary is inherently within

the judge's discretion." Chakravarti v. Pegasus Consulting Grp.,

Inc., 393 N.J. Super. 203, 210 (App. Div. 2007). The trial court

is obliged to view a plaintiff's proofs indulgently, and the

general practice is "to require only a prima facie case." Heimbach

v. Mueller, 229 N.J. Super. 17, 20 (App. Div. 1988); see also

Pressler & Verniero, Current N.J. Court Rules, comment 2.2.2 on

R. 4:43-2 (2016).

We have also determined that we will not disturb a judge's

denial of a motion for reconsideration absent an abuse of

discretion. See Palombi v. Palombi, 414 N.J. Super. 274, 289

(App. Div. 2010). Plaintiff has not demonstrated such an abuse

of discretion.

We conclude plaintiff has failed to establish that N.J.S.A.

45:15-3.1 applies. The statute prohibits a broker from paying a

referral fee or commission to a person not licensed in New Jersey

unless the person "is a licensed real estate broker of another

jurisdiction in which the licensed broker maintains a bona fide

office." Ibid. Plaintiff's mere assertion that P. Ryan Consulting,

which was paid $25,000 from the commission received by defendant,

6 A-1856-15T2
is not a New Jersey licensed real estate broker based upon

purported print-out records of the State of New Jersey, Department

of Banking and Insurance, is insufficient. There is no

authentication of the documents, N.J.R.E. 901, and the documents

were not self-authenticating. N.J.R.E. 902. Moreover, even if

the documents were considered, they fail to establish that P. Ryan

Consulting was not a licensed real estate broker in New Jersey or

in any state when it received the fee.

Plaintiff's remaining argument concerning the timing of her

commission lacks sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(E).

Affirmed.

7 A-1856-15T2