Jones, Wolf & Kapasi, LLC ("JWK") obtained summary judgment from the Superior Court of New Jersey, Union County, based on New Jersey’s “sham affidavit” doctrine and Dead Man’s Statute.
JWK represented co-trustees and an executor of an estate defending a lawsuit whereby the plaintiff alleged entitlement to incentive payments from the sale of New Jersey commercial properties. Critically, the primary basis for plaintiff’s case was alleged oral promises that occurred many years ago with two (now deceased) individuals.
JWK moved for summary judgment arguing, in part, that the lawsuit was barred by New Jersey’s Dead Man’s Statute and/or by a separate written contract between plaintiff and a non-party. In opposition, the plaintiff relied on his affidavit, which JWK contended was solely used to contradict his prior deposition testimony. In other words, it was a “sham affidavit” used to save plaintiff’s case when no triable issue of fact actually existed. JWK further argued that plaintiff failed to provide the necessary “clear and convincing” evidence to overcome the Dead Man’s statute.
The court agreed with JWK dismissing the plaintiff’s case in its entirety. As to the “sham affidavit” doctrine, the court ruled, in part: “…It is evident, in this court’s opinion, that the only issue in this case is created by Plaintiff’s contradictory testimony. In fact, as to the Schelcusky parameters, Plaintiff has hit the trifecta. The issues raised by Plaintiff are unsupported by the record. The Plaintiff only entered into one written agreement and it was admittedly not made with any of the Defendants. Despite insisting that there were oral agreements made with both Mr. and Ms…, there is nothing in the record to support these alleged oral promises apart from Plaintiff’s self-serving, contradictory, and illogical assertions.” (emphasis added)
As to the Dead Man’s Statute, the court opined, in part: “Here, Plaintiff’s Complaint names the Estate of … as a Defendant and is supported by claims made by Plaintiff about an oral promise allegedly made by.... As such, Plaintiff is required to establish his claims by clear and convincing proof. However, all the record identifies to support that claim is Plaintiff’s self-serving testimony that he received oral promises …about speculative incentive payments that were allegedly promised to him. The court agrees with Defendants that the supported testimony of an interested party, like Plaintiff, does not meet the clear and convincing evidence standard.”
The case is Mostafa Morsy v 205 Grand Street, LLC, et al., UNN-L-4229-18, and the Order, and Statement of Reasons can be read here.
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