                                NOT FOR PUBLICATION WITHOUT THE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-2744-18T3

GARY MATARAZZO,
EXECUTOR OF THE ESTATE
OF MARIA D. MATARAZZO,
Deceased,

          Plaintiff-Respondent,

v.

JOSEPH J. TALAFOUS, a/k/a
JOSEPH J. TALAFOUS, JR.,

     Defendant-Appellant.
__________________________

                   Submitted April 29, 2020 – Decided June 29, 2020

                   Before Judges Koblitz and Whipple.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-4047-17.

                   Miller Meyerson & Corbo, attorneys for appellant
                   (Gerald D. Miller, of counsel and on the briefs).

                   Walsh & Walsh, LLC, attorneys for respondent (John
                   K. Walsh, Jr., of counsel and on the brief).

PER CURIAM
      Defendant Joseph J. Talafous, Jr., appeals from the February 12, 2019

judgment entered after a bench trial in favor of plaintiff Gary Matarazzo,

executor of the estate of Maria D. Matarazzo (the estate).

      We discern the following facts from record. Plaintiff became friendly

with defendant because defendant's father previously represented plaintiff in a

worker's compensation matter related to his company. On May 12, 2012, Maria

D. Matarazzo, a resident of New York and plaintiff's aunt, died testate. Plaintiff

engaged defendant to provide legal services to plaintiff in connection with the

administration of her four-million-dollar estate.

      Maria's will identified plaintiff's deceased father as the estate's executor.

Defendant told plaintiff he would make him the executor and prepared papers to

that effect and secured the signatures of plaintiff's siblings. Defendant then went

to the Surrogate of Hudson County to make plaintiff the sole executor of Maria's

estate. Defendant was not licensed to practice law in New York, but, told

plaintiff "since [plaintiff is] a friend he would take care of [him] like no other

lawyer would . . . be able to." Although plaintiff testified as to certain acts

defendant undertook in connection with the estate, such as opening bank

accounts and creating a corporation, defendant never sent plaintiff any invoices

nor any statements indicating the nature of his services or an hourly rate.


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                                        2
      In May 2015, defendant told plaintiff he ran into some legal trouble and

that John K. Walsh, Jr. – plaintiff's counsel in the present matter – would handle

matters going forward, as he was licensed in New York and defendant had

planned to utilize him for the estate work because property, such as Maria's hair

salon business, was located in New York. Although defendant told plaintiff he

periodically paid Walsh, he never presented any bills to plaintiff. Defendant

was suspended from the practice of law on May 20, 2015 and disbarred on July

13, 2015. In re Talafous, 222 N.J. 127 (2015).

      On May 16, 2016, a New Jersey Grand Jury issued a nineteen-count

superseding indictment charging defendant with theft by deception and the

misapplication of entrusted property. On January 10, 2018, a jury convicted

defendant on all but one of the nineteen counts. In November 2018, defendant

was sentenced to twenty-six years in prison. We affirmed his conviction in State

v. Talafous, A-3594-17 (App. Div. June 10, 2020).

      By letter dated March 22, 2017, plaintiff requested fee arbitration, but the

Fee Arbitration Committee, which found the sum alleged was beyond its

jurisdiction, denied his request. On June 13, 2017, plaintiff filed a complaint

seeking reimbursement of the $353,362.46 in legal fees he paid defendant for

unknown services or "such amount representing the difference between the


                                                                          A-2744-18T3
                                        3
reasonable value[] of the services rendered and the amount paid by the Plaintiff."

Defendant answered, denying plaintiff was entitled to any refund.

      In April 2018, plaintiff served interrogatories and document demands but

defendant never responded nor did he provide any documents he intended to

utilize at trial or a list of potential witnesses. On May 25, 2018, the trial court

entered an order authorizing defendant's deposition at South Woods State Prison,

where he was serving his sentence. However, defendant advised he would assert

his Fifth Amendment privilege against self-incrimination. On November 19,

2018, the trial court denied defendant's request for a stay until the completion

of his criminal appeal and ordered plaintiff to proceed with a proof hearing as

defendant lacked standing to testify on his own behalf and his appearance at trial

would be meaningless due to his assertion of the self-incrimination privilege.

      On January 28, 2019, the parties appeared for a bench trial on the matter.

The trial judge first addressed defendant's request to call Walsh as a witness.

Defendant argued that Walsh already testified in the criminal trial concerning

the payments he received from defendant in connection with the estate and his

current representation presented an issue under the Rules of Professional

Conduct (RPC) 3.7. Defendant intended to call Walsh as a witness in order to

elicit testimony regarding the services rendered by defendant. Plaintiff argued


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                                        4
defendant's failure to respond to any discovery requests and the assertion of his

self-incrimination privilege barred him from calling any witnesses. Plaintiff

further argued Walsh's testimony in the criminal trial concerned Walsh's own

efforts in administering the estate and that, should the trial court allow the

testimony, the RPC 3.7 issue could be resolved by having another attorney from

his office testify concerning interactions with defendant.

       After reviewing the pre-trial history, the judge stated

              So the point being that it was Judge Polifroni's opinion
              that the defense had no standing to testify, and that the
              participation of the defense would be to challenge the
              proofs . . . presented, in that the defendant would not
              have standing to testify. So even if this court views this
              as a motion in limine to bar the defendant from calling
              witnesses . . . or testifying, [t]he [c]ourt would grant
              that motion in that the defendant, having failed to
              participate in discovery, should not, in essence, be
              permitted to do, in essence, the same thing by calling
              Mr. Walsh as a witness, as part, I guess, of a challenge
              to the proofs.

The trial judge further noted Walsh's previous testimony "would be of record,

and whatever that testimony was there would have been a transcript of it

available . . . ."

       The court denied defendant's application to call Walsh as a witness

"having made the determination that the defendant is not permitted to either

testify in his own behalf or call witnesses on his own behalf." The court al so

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                                          5
declined to rule "on RPC 3.7 . . . because [t]he [c]ourt [did] not have enough

information before it absent a full hearing on the in limine application . . . ." At

the close of plaintiff's case, the court allowed defendant to put a proffer on the

record concerning Walsh's testimony because defense counsel planned to

question him regarding his various interactions with defendant. Namely, the

administration of the estate as the information was relevant to any services

rendered by defendant to the estate.

      In a letter opinion dated January 29, 2019, the court found the facts

demonstrated defendant received nineteen checks totaling $353,262.46 from the

estate and Walsh received three checks from defendant totaling $7,951.85. The

court found plaintiff established a prima facie case that it was entitled to

$345,310.61, the difference between the money paid to defendant and the money

paid to Walsh. The court then shifted "the burden . . . to defendant to prove the

sum is less, or as set forth in defendant's answer to the complaint, that plaintiff

is owed nothing." The judge noted her disagreement with defendant's proffer

stating the proffer failed

             to set forth how an attorney, handling other aspects of
             the . . . [e]state, would be able to competently testify
             regarding services performed, the retainer agreement,
             amounts paid by [defendant] to other attorneys who are
             alleged to have performed work on the [e]state, or
             credits to which [defendant] is allegedly entitled for

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                                         6
            work done by accountants or other professionals in
            connection to the [e]state.

The court found plaintiff was a credible witness and concluded it was clear that

he trusted defendant and never saw any documentation related to services

rendered on the estate's behalf. The court also found testimony concerning the

eligibility of other family members as executors of the estate, and the work

performed regarding plaintiff's father's prior estate, were not germane to its

determination of what defendant owed plaintiff.

      On February 12, 2019, the court entered a judgment awarding plaintiff

$345,310.61 plus interest.    On March 18, 2019, the trial court entered an

additional order directing defendant to pay attorney's fees to plaintiff in the

amount of $27,408.95. This appeal followed.

      On appeal, defendant argues the trial court erred by not permitting him to

produce evidence relating to the services rendered. Defendant also argues the

court failed to give him credit for the services he provided. He contends that

plaintiff acknowledged services had been rendered by him and the court should

have required plaintiff to provide proof as to the reasonable value of the services

or allowed defendant to present proof of the services rendered.

      "[W]e apply an abuse of discretion standard to decisions made by [the]

trial court[] relating to matters of discovery." Pomerantz Paper Corp. v. New

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                                        7
Cmty. Corp., 207 N.J. 344, 371 (2011). However, a trial court's interpretation

of the law is not entitled to any special deference. State v. Pomianek, 221 N.J.

66, 80 (2015) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

      Rule 4:23-1 provides that a party may apply for an order to compel

discovery. In circumstances "where a party to civil litigation refuses to submit

to discovery because of the assertion of the privilege against self-incrimination,

it is clear that the party asserting the privilege legitimately cannot be held in

contempt . . . ." Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1. on R.

4:23-1.   Nevertheless, it is appropriate "to permit the party asserting the

privilege to testify at trial and direct[] that party to furnish a list of all trial

witnesses intended to be called for pretrial deposition purposes." Pressler &

Verniero, cmt. 2.1. on R. 4:23-1. "It would not, however, be appropriate to

permit the plaintiff to recover judgment against the party asserting the privilege

without requiring the plaintiff to introduce proofs and having his witness cross-

examined." Pressler & Verniero, cmt. 2.1. on R. 4:23-1.

      Before trial defendant refused to answer interrogatories, produce

documents, identify witnesses and be deposed by asserting, in good faith, his

privilege against self-incrimination. When we consider defendant's refusal to


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                                         8
provide discovery, we are fully cognizant his invocation of the privilege against

self-incrimination during a civil proceeding places him in a difficult posture. In

Mahne v. Mahne, 66 N.J. 53, 58 (1974), the Court observed that "[i]n civil

proceedings the courts have, in the interests of truth and justice, displayed

understandable readiness to impose noncriminal sanctions for refusal to submit

to pretrial discovery on the basis of the privilege . . . ." See also Woodward-

Clyde Consultants v. Chem & Pollution Scis., Inc., 105 N.J. 464, 475 (1987)

(noting that when a defendant invokes the privilege against self-incrimination,

a "trial court [may] . . . impose[] alternative sanctions such as staying discovery

or precluding defendant from offering affirmative proof at trial."). There, the

Court differentiated plaintiffs who invoke the right against self-incrimination to

avoid pretrial discovery to avoid dismissal from defendants, like Talafous, who

invoke the same right because he is in court involuntarily. Mahne, 66 N.J. at

59.   The Court explained, "courts have generally declined to strike [a

defendant's] answer and thus permit a default judgment . . . although they have,

in seeking proper balance, been willing to impose lesser sanctions." Ibid.

      In Whippany Paper Bd. Co. v. Alfano, 176 N.J. Super. 363, 374-75 (App.

Div. 1980), we observed that it is an appropriate remedy, in the face of a

defendant's claim of the privilege against self-incrimination, to preclude the


                                                                           A-2744-18T3
                                        9
party claiming the privilege from testifying at trial. In that case, we also

explained that if a plaintiff convinces a trial court that he or she is unable to

"proceed without discovery from defendants," the "judge may well be justified

in striking the answer of a defendant claiming the privilege against self-

incrimination and entering judgment against him without proof of the claim or

perhaps on the basis of less persuasive evidence that might otherwise be

required." Id. at 375.

      In this case, plaintiff provided defendant nineteen separate checks in

connection with the administration of the estate. In return, defendant never

provided plaintiff any statement, invoice, or correspondence as to the value or

nature of the services provided.      Upon hearing plaintiff's testimony and

assessing his credibility, the trial judge determined she "[could not] speculate

what services were performed by [defendant] or what the value of those services

might be." The judge reasonably determined that plaintiff had no knowledge of

the value of any services provided by defendant nor did defendant explain what

work he provided.

      After establishing plaintiff proved a prima facie case that the estate was

entitled to $345,310.61, it became defendant's burden to prove the sum was less.

Defendant provided limited insight as to the value of work he provided in


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                                      10
connection with the limited interactions about which plaintiff testified. We

discern no abuse of the court's discretion.

      Affirmed.




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