NOT FOR PUBLICATION WITHOUT THE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-1533-17T1
PIZZA KING, INC., and
FIVE B CORPORATION,
Plaintiffs-Respondents,
v.
THEOCHARI, INC., MARIA
HADJIYEROU and HARRY
HADJIYEROU,
Defendants/Third-Party
Plaintiffs-Appellants,
v.
NATALINA BRUSCO,
Third-Party Defendant.
____________________________
Submitted November 19, 2019 – Decided December 3, 2019
Before Judges Fisher and Rose.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-8204-15.
George J. Cotz, attorney for appellants.
Kates Nussman Ellis Farhi & Earle, LLP, attorneys for
respondents (Zachary M. Rosenberg, on the brief).
PER CURIAM
Plaintiff Five B Corporation owns commercial property on Abbott
Boulevard in Fort Lee that consists of five apartments and two stores; plaintiff
Pizza King, Inc. owned and operated a pizzeria in the premises. In 2013, Pizza
King sold its business to defendant Theochari, Inc., for $90,000 plus inventor y;
their contract required Theochari's payment of $10,000 at the time of signing
and $15,000 at the time of closing. Theochari was also required to provide a
$65,000 five-year promissory note at closing. In accordance with their
agreement, Five B leased Pizza King's premises to Theochari for five years at
the monthly rate of $4000. The individual defendants personally guaranteed
Theochari's performance of these obligations. The contract documents provided
that defendants' default on the lease would trigger a default on the note, and vice
versa.
Theochari experienced cash flow problems in the summer of 2014 and
failed to pay rent in the fall. Five B and Pizza King (hereafter "plaintiffs") filed
a tenancy action in December 2014, asserting Theochari's failure to pay rent in
September, October, and November 2014. That complaint also asserted a
default on the promissory note.
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In January 2015, the parties resolved the tenancy matter and entered into
a consent judgment that required Theochari to pay the past due rent and the
outstanding payments on the promissory note. That total amount was divided
roughly in half; the judgment required the first half to be paid on or before
January 15, 2015, and the other half three days after plaintiffs repaired the
premises.1 The judgment also contained Theochari's agreement to timely
provide the note payments and rent payments going forward; Theochari also
agreed to comply with its original obligation under the lease to provide a
certificate of insurance.
Theochari and the individual defendants (hereafter "defendants") never
made any of the payments required by the consent judgment or as otherwise
obligated by the promissory note and the lease; they did not provide the
certificate of insurance. And they never inquired whether plaintiff made the
repairs required and never resumed operation of the business.
Plaintiffs commenced this action, seeking damages arising from
defendants' breach of the settlement agreement, the promissory note, and the
lease. After a four-day bench trial, the judge ruled in plaintiffs' favor. As
1
In November 2014, a water leak in an upstairs apartment caused problems for
Theochari's business.
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explained in a thorough written decision, the judge found that defendants
breached the promised they made in the contract documents, that plaintiffs made
timely repairs of the premises, and that plaintiffs reasonably attempted to
mitigate damages after defendants breached. In a later written opinion, the judge
quantified the counsel fees to which plaintiffs were entitled.
Defendants appeal, arguing:
I. STANDARD OF REVIEW.
II. [NATALINA] BRUSCO [2] WAS NOT A
CREDIBLE WITNESS.
III. PLAINTIFF CANNOT RECOVER DAMAGES
FOR BREACH OF THE LEASE BECAUSE IT DID
NOT MAKE REASONABLE EFFORTS TO
MITIGATE.
IV. PLAINTIFF BREACHED THE LEASE BY
ALLOWING THE PREMISES TO REMAIN
UNINHABITABLE THEREBY EXCUSING
DEFENDANTS' DEFAULT.
V. PLAINTIFF EXERCISED ITS RIGHT TO A
STRICT FORECLOSURE AGAINST THE
COLLATERAL.
VI. TO THE EXTENT CONTRACTUAL DAMAGES
ARE REDUCED, COUNSEL FEES MUST ALSO BE
REDUCED.
2
Natalina Brusco was a principal in these entities.
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We find insufficient merit in these arguments to warrant further discussion in a
written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set
forth in Judge Mary F. Thurber's thorough and well-reasoned written opinion.
Affirmed.
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