Aysseh v. Lawn

CourtSuperior Court of New Jersey
Writing for the CourtHAINES
Citation434 A.2d 1146,180 N.J.Super. 391
Decision Date26 February 1981
PartiesEmil F. AYSSEH, Trustee, Plaintiff, v. Howard M. LAWN and Pearl B. Lawn, his wife; David Schwartz and Irene Schwartz, his wife; Frank Moss t/a Seashore Real Estate; Roy Baylinson, Trustee; State ofNew Jersey; M. E. Sabosik Associates, Inc.; Citibank, N.A.; Lakewood OilCompany;United States of America; Park Mobile South, Inc.; Aetna Business Credit, Inc.;John Bologna; Abraham Grunwald; Migrash Realty Associates, a partnership; andPM Parking First, Inc., a Delaware corporation, Defendants.

Page 391

180 N.J.Super. 391
434 A.2d 1146
Emil F. AYSSEH, Trustee, Plaintiff,
v.
Howard M. LAWN and Pearl B. Lawn, his wife; David Schwartz
and Irene Schwartz, his wife; Frank Moss t/a Seashore Real
Estate; Roy Baylinson, Trustee; State ofNew Jersey; M. E.
Sabosik Associates, Inc.; Citibank, N.A.; Lakewood
OilCompany;United States of America; Park Mobile South,
Inc.; Aetna Business Credit, Inc.;John Bologna; Abraham
Grunwald; Migrash Realty Associates, a partnership; andPM
Parking First, Inc., a Delaware corporation, Defendants.
Superior Court of New Jersey, Chancery Division,
Atlantic County.
Decided Feb. 26, 1981.

[434 A.2d 1147]

Page 393

Julius B. Poppinga, Newark, for plaintiff (McCarter & English, attorneys).

Dianne Foley, Newark, for defendants Lawn and PM Parking First, Inc. (Connell, Foley & Geiser, Newark, attorneys).

Roy Baylinson, Atlantic City, for defendant Baylinson, Trustee.

Walter Greenhalgh, Millburn, for defendant Citibank, N. A. (Kleinberg, Maroney, Masterson & Schachter, Millburn, attorneys).

Donald J. Rapson, Asbury Park, for defendant Park Mobile South, Inc. (Lautman, Rapson & Henderson, Asbury Park, attorneys).

Frank J. Ferry, Atlantic City, for defendant Abraham Grunwald.

Ralph W. Platine, Atlantic City, for defendants Schwartz (Platine & Feldman, Atlantic City, attorneys).

Henry Gorelick, Wildwood, for receiver (Gorelick, Groon & Dare, Wildwood, attorneys).

[434 A.2d 1148] HAINES, J. S. C.

Emil F. Aysseh, trustee, commenced this suit on August 4, 1980 seeking several forms of relief, one of which was foreclosure of a mortgage securing a note for $1,600,000 given to him by defendant Howard Lawn. The mortgage covers fractional interests in Atlantic City, New Jersey, real property owned by Lawn. Numerous defendants are named in the litigation, some of whom hold mortgages covering various parcels of real estate involved in the proceedings. All of them, including Lawn, have answered. Lawn's answer includes a demand for arbitration; he has also counterclaimed. Loss of some of Lawn's properties was threatened by mortgage foreclosures and other financial difficulties. Cotenants are at odds with each other. As a result, on plaintiff's application and over Lawn's objection, a receiver

Page 394

was appointed to manage and protect the properties. The litigation is complex and has moved forward with considerable intensity.

On January 8, 1981 Lawn filed a demand for arbitration with the American Arbitration Association. He sought to arbitrate certain disputes arising under a stock transfer agreement affecting the stock of two corporations known as Park Mobile, Inc. and Park Mobile International, Inc. Lawn, Aysseh, his wife Josephine, a Lichtenstein corporation, a Luxemburg corporation and a Panamanian corporation are parties to the agreement. Among other things, Lawn claims that an oral modification of this agreement permits the note and mortgage which are the subject of this suit to be satisfied by a tender of stock pursuant to the stock transfer agreement, and further claims that the stock was tendered and refused. He requests the arbitration panel to require Aysseh to accept the stock, to cancel the note and mortgage, and to discontinue the foreclosure proceedings. Aysseh filed a counter-demand in the arbitration proceedings in which he denied making the alleged oral agreement and denied the right of the American Arbitration Association to arbitrate any questions regarding the note and mortgage in question. At the same time, he demanded arbitration of other claims arising under the stock transfer agreement.

On January 15, 1981, promptly after receiving notice of the demand for arbitration, plaintiff made an ex parte application to this court for an order restraining the arbitration as to the note and mortgage only, and restraining Lawn from commencing proceedings in any other court for the purpose of enjoining the within litigation. The application was granted, notwithstanding the lack of notice to opposing counsel, for two reasons: (1) defendant Lawn's arbitration demand was filed in the State of New York by counsel in Boston, Massachusetts, over which this court had no control, and (2) the giving of notice would have permitted defendant Lawn, through foreign counsel, to make the application sought to be restrained before a hearing could be held. In view of the lack of notice, however, the restraining

Page 395

order was made returnable the next day so that an immediate application for dissolution could be entertained. Later, counsel agreed to continue the restraints until the matter could be fully briefed and argued. Plaintiff now seeks to make the restraints interlocutory, while defendant Lawn moves for their complete dissolution.

I. The Propriety of the Restraints

Under usual rules, subject to a consideration of "special equities," a court first acquiring jurisdiction over a lawsuit has precedence over a like suit brought in the court of another state. Yancoskie v. Delaware River Port Auth., 78 N.J. 321, 324, 395 A.2d 192 (1978); Devlin v. National Broadcasting Co., 47 N.J. 126, 219 A.2d 523 (1966); Interstate Wrecking Co. v. Palisades Interstate Park Comm'n, 57 N.J. 342, 352, 273 A.2d 10 (1971). In such cases, as here, the litigants may be restrained from proceeding in the other jurisdiction. Trustees of Princeton University v. Trust Co. of N.J., 22 N.J. 587, 598, 127 A.2d 19 (1956). When an arbitration proceeding is commenced, after the beginning of litigation, and questions of arbitrability are presented, it is appropriate for the court to restrain [434 A.2d 1149] the arbitration proceeding until it decides whether the issues in question are subject to arbitration. American Broadcasting Cos. v. American Fed'n of Television and Radio Artists, 412 F.Supp. 1077, 1082 (S.D.N.Y.1976); New Jersey Mfrs. Ins. Co. v. Franklin, 160 N.J.Super. 292, 300, 389 A.2d 980 (App.Div.1978); Polshek v. Bergen Cty. Iron Works, 142 N.J.Super. 516, 362...

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5 practice notes
  • Labib v. Younan, Civ. A. No. 90-3682(MHC).
    • United States
    • U.S. District Court — District of New Jersey
    • January 23, 1991
    ...573, 576 (3d Cir.1989); Laborers' Local Union v. Interstate Curb and Sidewalk, 90 N.J. 456, 463, 448 A.2d 980 (1982); Aysseh v. Lawn, 180 N.J.Super. 391, 395, 434 A.2d 1146 (Ch.Div.1981). But see Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr, 124 Ill.2d 435, 125 Ill.Dec. 281, 530 N.E.2......
  • Laborers' Local Union Nos. 472 and 172 v. Interstate Curb & Sidewalk, Nos. 472 and 172
    • United States
    • United States State Supreme Court (New Jersey)
    • August 9, 1982
    ...arbitrators, to make the initial and threshold determination regarding the arbitrability of a particular issue. Grover; Aysseh v. Lawn, 180 N.J.Super. 391, 434 A.2d 1146 (Ch.Div.1981). See generally Annot., "Collective Labor Contract--Arbitration," 24 A.L.R.2d 752, 766 The parties in this c......
  • State v. Clawges, No. 13–0110.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2013
    ...(“A state court lacks subject matter jurisdiction to control the action, process, or proceeding in a federal court.”); Aysseh v. Lawn, 180 N.J.Super. 391, 434 A.2d 1146, 1149 (1981) ( “State courts and federal courts have concurrent jurisdiction over in personam proceedings and neither may ......
  • Worthington v. Fauver
    • United States
    • New Jersey Superior Court – Appellate Division
    • September 4, 1981
    ...who already have the same or worse problems. We should not overlook the fact that this case was started even before the Governor [434 A.2d 1146] promulgated his executive order. Because of the jam-packed condition at the county jail, plaintiffs brought the action to compel the State to acce......
  • Request a trial to view additional results
5 cases
  • Labib v. Younan, Civ. A. No. 90-3682(MHC).
    • United States
    • U.S. District Court — District of New Jersey
    • January 23, 1991
    ...573, 576 (3d Cir.1989); Laborers' Local Union v. Interstate Curb and Sidewalk, 90 N.J. 456, 463, 448 A.2d 980 (1982); Aysseh v. Lawn, 180 N.J.Super. 391, 395, 434 A.2d 1146 (Ch.Div.1981). But see Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr, 124 Ill.2d 435, 125 Ill.Dec. 281, 530 N.E.2......
  • Laborers' Local Union Nos. 472 and 172 v. Interstate Curb & Sidewalk, Nos. 472 and 172
    • United States
    • United States State Supreme Court (New Jersey)
    • August 9, 1982
    ...arbitrators, to make the initial and threshold determination regarding the arbitrability of a particular issue. Grover; Aysseh v. Lawn, 180 N.J.Super. 391, 434 A.2d 1146 (Ch.Div.1981). See generally Annot., "Collective Labor Contract--Arbitration," 24 A.L.R.2d 752, 766 The parties in this c......
  • State v. Clawges, No. 13–0110.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2013
    ...(“A state court lacks subject matter jurisdiction to control the action, process, or proceeding in a federal court.”); Aysseh v. Lawn, 180 N.J.Super. 391, 434 A.2d 1146, 1149 (1981) ( “State courts and federal courts have concurrent jurisdiction over in personam proceedings and neither may ......
  • Worthington v. Fauver
    • United States
    • New Jersey Superior Court – Appellate Division
    • September 4, 1981
    ...who already have the same or worse problems. We should not overlook the fact that this case was started even before the Governor [434 A.2d 1146] promulgated his executive order. Because of the jam-packed condition at the county jail, plaintiffs brought the action to compel the State to acce......
  • Request a trial to view additional results

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