SAMUEL S. RAIA VS. COHNREZNICK LLP (L-2262-18 AND L-0921-19, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1365-19T1
SAMUEL S. RAIA, TINA M. RAIA,
KIMBERLY RAIA NARDONE, TINA
T. RAIA, ANDREW RAIA, SAMUEL
S. RAIA FAMILY DYNASTY TRUST,
LAWRENCE A. RAIA, ELAINE RAIA,
JACQUELINE A. RAIA, JENNIFER T.
MARINO, LAWRENCE A. RAIA FAMILY
DYNASTY TRUST, JOSEPH S. RAIA,
ANNETTE RAIA, JOSEPH A. RAIA,
NADINE A. RAIA, JOSEPH S. RAIA
FAMILY DYNASTY TRUST, LAWRENCE
C. RAIA, ILLANA RAIA, LCR FAMILY
2012 TRUST, SAMUEL A. RAIA, BENITA
RAIA, SAR FAMILY 2012 TRUST, RAIA
PROPERTIES CORPORATION, and RAIA
CAPITAL MANAGEMENT,
Plaintiffs-Appellants,
v.
COHNREZNICK LLP, J.H. COHN LLP,
IRA S. HERMAN, and JOSEPH A. TIGHE III,
Defendants-Respondents.
______________________________________
SAMUEL S. RAIA, TINA M. RAIA,
KIMBERLY RAIA NARDONE, TINA T.
RAIA, ANDREW RAIA, SAMUEL S. RAIA
FAMILY DYNASTY TRUST, LAWRENCE A.
RAIA, ELAINE RAIA, JACQUELINE A. RAIA,
JENNIFER T. MARINO, LAWRENCE A. RAIA
FAMILY DYNASTY TRUST, JOSEPH S. RAIA,
ANNETTE RAIA, JOSEPH A. RAIA, NADINE
A. RAIA, JOSEPH S. RAIA FAMILY DYNASTY
TRUST, LAWRENCE C. RAIA, ILLANA RAIA,
LCR FAMILY 2012 TRUST, SAMUEL A. RAIA,
BENITA RAIA, SAR FAMILY 2012 TRUST,
RAIA PROPERTIES CORPORATION, and
RAIA CAPITAL MANAGEMENT,
Plaintiffs,
v.
LOWENSTEIN SANDLER LLP and ERIC
D. WEINSTOCK,
Defendants.
_________________________________________
Argued telephonically June 3, 2020 –
Decided June 22, 2020
Before Judges Fuentes, Haas and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket Nos. L-2262-18 and
L-0921-19.
Barry Coburn (Coburn & Greenbaum, PLCC) of the
District of Columbia Bar, admitted pro hac vice, argued
the cause for appellants (Schenck Price Smith & King,
LLP, and Barry Coburn, attorneys; Gary F. Werner,
Thomas Joseph Cotton, and Barry Coburn, on the
briefs).
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Joan M. Schwab argued the cause for respondents
(Saiber LLC, attorneys; Joan M. Schwab, Amy K.
Smith, and Vincent C. Cirilli, on the brief).
PER CURIAM
Plaintiffs appeal from the Law Division's September 24, 2019 order
granting defendants' motion to compel arbitration and dismissing plaintiffs'
complaint with prejudice. Plaintiffs also challenge the court's November 14,
2019 order denying their motion for reconsideration. Because we conclude that
the parties agreed to arbitrate their disputes and delegate issues of arbitrability
to the arbitrator, we affirm.
The material facts of this matter are well known to the parties and can be
briefly stated. In 2012, plaintiff Raia Properties Corporation (Raia Properties)
retained defendants' predecessor, J.H. Cohn LLP, now known as defendant
CohnReznick LLP (CohnReznick), to perform estate planning services for it. In
turn, Raia Properties shared the information and advice it received from
CohnReznick with the other plaintiffs, even though none of them were
signatories to the agreement. 1
1
Raia Properties also retained a law firm, Lowenstein Sandler LLP, to perform
the legal work necessary to effectuate the estate plan.
A-1365-19T1
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The Engagement Letter between the parties contained a broad arbitration
clause governing any and all disputes raised by Raia Properties. The arbitration
clause stated:
If any dispute, controversy, or claim arising out
of or relating to this agreement (including disputes
regarding the breach, termination, validity or
enforceability of this agreement) cannot be resolved by
mediation (or the parties agree to waive that process),
then the dispute, controversy or claim shall be finally
resolved by arbitration in accordance with the
International Institute for Conflict Prevention and
Resolution ("IICPR") Rules for Non-Administered
Arbitrations by a panel of three arbitrators, one chosen
by each party, and the third selected by the two-party
selected arbitrators. The arbitration shall be governed
by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.,
and judgment upon the award rendered by the
arbitrators may be entered by any court having
jurisdiction thereof. The arbitration hearings will take
place in New York, New York, unless the parties agree
to a different locale.
. . . . In agreeing to arbitration, J.H. Cohn and
you both acknowledge that in the event of any dispute
(including a dispute over fees charged by J.H. Cohn),
J.H. Cohn and . . . you are giving up the right to have
the dispute decided in a court of law before a judge or
jury and, instead, J.H. Cohn and you are accepting the
use of arbitration for resolution.
In March 2018, plaintiffs filed a complaint against CohnReznick and two
individuals associated with it (collectively CohnReznick), alleging malpractice
A-1365-19T1
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and breach of fiduciary duties. 2 In response, CohnReznick filed a motion to
compel Raia Properties to proceed to arbitration, and to dismiss the claims of
the remaining plaintiffs.
Following oral argument, Judge Robert C. Wilson granted CohnReznick's
motion to compel Raia Properties to proceed to arbitration, and dismissed
plaintiffs' complaint against it. 3 In a thorough written opinion rendered on
September 24, 2019, Judge Wilson explained:
The validity and enforceability of the
Engagement Letter . . . should be decided by the
arbitrators. The Supreme Court has stated that "parties
to an arbitration agreement can include a 'delegation
clause' providing that the arbitrator, rather than the
judge, will decide threshold issues, such as whether
they agreed to arbitrate." Rent-A-Center, W., Inc. v.
Jackson, 561 U.S. 63, 66, 72 (2010) (under [the Federal
Arbitration Act (FAA), 9 U.S.C.A. §§ 1 to -16,]
contract providing arbitrator with exclusive authority to
resolve "interpretation, applicability, enforceability or
formation" of Agreement, left challenges to validity of
the contract to the arbitrator); Goffe v. Foulke Mgmt.
Corp., 238 N.J. 191, 211 (2019) (recognizing that the
2
Plaintiffs also commenced legal action against Lowenstein Sandler, and the
two actions were consolidated. However, plaintiffs' claims against the law firm
are not the subject of the present appeal.
3
In addition, the judge dismissed the claims of the remaining plaintiffs because
they were not parties to the Engagement Letter and did not state a cognizable
claim against CohnReznick. On January 17, 2020, another panel of this court
denied the remaining plaintiffs' motion for leave to appeal. (Docket No. AM-
0176-19). Therefore, we do not address these claims further here.
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Court has "acknowledged the legitimacy and
applicability of the Rent-A-Center holding to
delegation provisions in New Jersey arbitration
agreements").
In the instant case, the Engagement Letter
includes a "delegation clause" which states that "if any
dispute, controversy, or claim arising out of or relating
to this agreement (including disputes regarding the . . .
validity or enforceability of this agreement) cannot be
resolved by mediation . . . then the dispute, controversy,
or [claim] shall be finally resolved by arbitration. . . [.]"
The arbitration clause makes it clear that issues of
validity or enforceability are reserved for the
arbitrators.
Raising the same arguments that they unsuccessfully presented in
opposition to CohnReznick's motion to dismiss, plaintiffs filed a motion for
reconsideration, which Judge Wilson denied on November 14, 2019. "A motion
for reconsideration is designed to seek review of an order based on the evidence
before the court on the initial motion, R. 1:7-4, not to serve as a vehicle to
introduce new evidence in order to cure an inadequacy in the motion record."
Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App.
Div. 2008) (citing Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.
1996)). Thus, reconsideration should only be granted in those cases in which
the court had based its decision "upon a palpably incorrect or irrational basis,"
or did not "consider, or failed to appreciate the significance of probative,
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competent evidence." Granata v. Broderick, 446 N.J. Super. 449, 468 (App.
Div. 2016) (Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462
(App. Div. 2002)).
In keeping with these well-settled rules of analysis, Judge Wilson
concluded that plaintiffs failed to "produce[] any evidence that the [c]ourt acted
in an incorrect or irrational manner. There is a signed agreement between the
parties that contains an arbitration provision. This requires the [c]ourt to s end
any disputes between the parties to arbitration." This appeal followed.
On appeal, plaintiffs argue that "the trial court's order compelling
arbitration and denying reconsideration should be reversed." We review orders
permitting or denying arbitration de novo because "[t]he enforceability of
arbitration provisions is a question of law." Goffe, 238 N.J. at 207.
Accordingly, we need not refer to the trial judge's "interpretative analysis"
unless is it "persuasive." Kernahan v. Home Warranty Admin. of Fla., Inc., 236
N.J. 301, 316 (2019).
Applying these principles, we reject plaintiffs' contentions and affirm the
September 24, 2019 and November 14, 2019 orders substantially for the reasons
set forth by Judge Wilson in his two written decisions. We add the following
comments.
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Arbitration is fundamentally a matter of contract. Rent-A-Center, 561
U.S. at 67. An agreement to arbitrate "must be the product of mutual assent, as
determined under customary principles of contract law." Atalese v. U.S. Legal
Servs. Grp., L.P., 219 N.J. 430, 442 (2014) (quoting NAACP of Camden Cty.
E. v. Foulke Mgmt., 421 N.J. Super. 404, 424 (App. Div. 2011)). The terms of
an arbitration provision "should be read liberally in favor of arbitration."
Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124,
132 (2001) (quoting Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282
(1993)).
In determining whether a matter should be submitted to arbitration, a court
must first evaluate (1) whether a valid agreement to arbitrate exists, and (2)
whether the dispute falls within the scope of the agreement. Martindale v.
Sandvik, Inc., 173 N.J. 76, 86, 92 (2002). However, the FAA allows the second
question, commonly known as "the threshold arbitrability question," to be
delegated to the arbitrator. Henry Schein, Inc. v. Archer & White Sales, Inc.,
586 U.S. ___, 139 S. Ct. 524, 529-30 (2019).
The Engagement Letter signed by Raia Properties and CohnReznick is
valid. The dispute resolution provision in the agreement is contained in a
separate paragraph, and its terms clearly and unambiguously mandate arbitration
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for "any dispute, controversy, or claim arising out of or relating to this
agreement (including disputes regarding the breach, termination, validity or
enforceability of this agreement)." The provision designates the arbitral forum,
with venue laid in New York "unless the parties agree to a different locale."
Accordingly, the arbitration provision is "succinctly stated, unambiguous, easily
noticeable, and specific with regard to the actual terms and manner of
arbitration." Curtis v. Cellco P'ship, 413 N.J. Super. 26, 37 (App. Div. 2010).
We are therefore satisfied that the arbitration provision is valid.
We next address whether the parties' dispute falls within the scope of the
Engagement Letter. Plaintiffs contend that the arbitration provision, its
delegation clause, and other portions of the Engagement Letter are
"unconscionable." However, these contentions plainly fall within the broad
scope of the Engagement Letter's arbitration provision. As our Supreme Court
has recognized, "when the parties' contract delegates the question of the
arbitrability of a particular dispute to an arbitrator, a court may not override the
contract, even if the court thinks that the argument that the arbitration agreement
applies to a dispute is 'wholly groundless.'" Goffe, 238 N.J. at 211 (quoting
Henry Schein, 568 U.S. at ___, 139 S. Ct. at 528-29). Therefore, we discern no
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basis for disturbing Judge Wilson's reasoned determination to compel Raia
Properties to proceed to arbitration.
Affirmed.
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