                        NOT FOR PUBLICATION WITHOUT THE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-3265-15T1

NAN JIN SUH KIM, SUK CHANG SUH,
and SC & NJ SUH REALTY LIMITED
LIABILITY COMPANY,

        Plaintiffs-Appellants,

v.

REDSTONE TREMATORE WESTAMPTON,
LLC, BRIAN TREMATORE,
TREMATORE WESTAMPTON, LLC,
MARQUIS REALTY MANAGEMENT,
LLC, MARQUIS REALTY HOLDING
COMPANY, LLC, REDSTONE RIDGE,
LLC, and CHRISTOPHER SMARGISSO,

        Defendants-Respondents.

______________________________________

              Argued October 31, 2017 – Decided November 27, 2017

              Before Judges Carroll and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. L-
              1181-15.

              Stacey E. Boretz argued the cause for
              appellants (Lindabury, McCormick, Estabrook &
              Cooper, PC, attorneys; Peter M. Burke, on the
              brief).
            Josiah   Contarino   argued   the cause   for
            respondents    Redstone    Ridge,   LLC   and
            Christopher Smargisso (Archer & Greiner, PC,
            attorneys; Michael S. Horn, of counsel and on
            the brief; Mr. Contarino, on the brief).

            Mara P. Codey argued the cause for respondents
            Brian Trematore, Trematore Westampton, LLC,
            Marquis Realty Management, LLC, and Marquis
            Realty Holding Company, LLC (Mandelbaum
            Salsburg, PC, attorneys; Ms. Codey, on the
            brief).

PER CURIAM

      Plaintiffs appeal from two June 12, 2015 orders dismissing

their complaint for failure to state a claim.               For the reasons

that follow, we affirm.

                                      I.

      The following facts are taken from the record.                On May 22,

2012, plaintiffs Nan Jin Suh Kim and Suk Chang Suh entered into a

purchase     and   sale   agreement    (PSA)   with     defendant     Redstone

Trematore    Westampton,    LLC   (Redstone)   to     acquire   a   commercial

property located in Westampton.

      On July 18, 2012, the parties executed an amendment permitting

Kim and Suh to assign the PSA to their company, Suh Realty, the

ultimate purchaser.       On September 28, 2012, Suh Realty purchased

the   property.     The    purchase   was   subject    to   a   written   lease

agreement between Redstone and TLE Westampton, LLC dated June 15,

2010.


                                      2                                A-3265-15T1
     On September 28, 2012, in conjunction with the closing of Suh

Realty's purchase of the property, Redstone, as assignor, and Suh

Realty, as assignee, executed an assignment and assumption of

lease agreement (assignment).

     The lease provided for Redstone to pay ComRealty, LLC, the

broker who produced the lease, a total commission of $100,000 with

"fifty percent [] payable upon the issuance of the CO [certificate

of occupancy] and fifty percent [] upon the twelfth [] month of

the Lease Term."   Accordingly, the first payment was due in March

2012, and the second payment was due in March 2013.

     Section 14.1(b) of the lease did not require payment of the

second half of the commission until March 2013.   However, section

14.1(c) of the lease accelerated the second payment: "In the event

the Leased Premises are conveyed to a third party, any unpaid

portions of the Commission shall be due and payable on the closing

date of the conveyance."   The lease also provided:

          In the event of any sale of the Leased Premises
          by Landlord, Landlord shall be entirely freed
          and relieved of all liability under all of its
          covenants and obligations contained in or
          derived from this Lease arising out of any
          act, occurrence or omission, occurring after
          the consummation of such sale; and the
          purchaser at such sale or any subsequent sale
          of the Leased Premises shall be deemed,
          without any further agreement between the
          parties or their successors in interest or
          between the parties and such purchaser, to
          have assumed and agreed to carry out any and

                                 3                          A-3265-15T1
           all of the covenants and            obligations    of
           Landlord under this Lease.

      The Assignment provided:

           C. The Agreement requires Assignor to assign
           to Assignee all of Assignor's right, title and
           interest in the Lease and requires Assignee
           to assume Assignor's obligations under the
           Lease.

                 2. Assignor agrees that it shall be
                 responsible   for    the   discharge   or
                 performance of any duties or obligations
                 to be performed or discharged by Assignor
                 as Landlord under the Lease prior to the
                 date hereof, but Assignor shall not be
                 responsible   for    the   discharge   or
                 performance of the duties or obligations
                 to be performed or discharged by Assignor
                 as Landlord under the Lease after the
                 date hereof.

                 3. Assignee hereby assumes and agrees to
                 perform all of the terms, covenants and
                 conditions of the Lease on the part of
                 Assignor required to be performed by
                 Landlord thereunder, from and after the
                 date hereof (but not those arising or
                 required to be performed prior thereto).

On   September   28,   2012,   the   parties   closed   on   the   property.

Pursuant to the lease, ComRealty, LLC's second commission payment

became due on that date.

      Suh Realty failed to pay the $50,000 commission, alleging it

was Redstone's obligation to make the payment at closing.                   On

February 21, 2013, ComRealty sent notice to Suh Realty demanding

payment.


                                      4                              A-3265-15T1
     Plaintiffs filed a complaint in the Law Division alleging

breach of contract, asserting it was Redstone's obligation to make

the commission payment.   The complaint further asserted fraudulent

transfer and veil piercing claims, and sought to impose liability

against defendants Brian Trematore and Christopher Smargisso on

these grounds.   Defendants filed motions to dismiss for failure

to state a claim.   The motion judge granted defendants' motions

to dismiss and determined the plain language of the lease and

assignment obligated plaintiffs to pay the commission. This appeal

followed.

                                II.

     We recite our standard of review.    "On appeal, we engage in

a de novo review from a trial court's decision to grant or deny a

motion to dismiss filed pursuant to Rule 4:6-2(e)."       Smith v.

Datla, 451 N.J. Super. 82, 88 (App. Div. 2017) (citing Rezem Family

Assoc., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App.

Div. 2011)).   When a court grants a party's motion to dismiss for

failure to state a claim "[w]e approach our review of the judgment

below mindful of the test for determining the adequacy of a

pleading: whether a cause of action is 'suggested' by the facts."

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746

(1989) (citing Valentzas v. Colgate-Palmolive Co., 109 N.J. 189,

192 (1988)).   "In reviewing a complaint dismissed under Rule 4:6-

                                 5                          A-3265-15T1
2(e) our inquiry is limited to examining the legal sufficiency of

the facts alleged on the face of the complaint."                    Ibid. (citation

omitted).    "However, a reviewing court 'searches the complaint in

depth and with liberality to ascertain whether the fundament of a

cause of action may be gleaned even from an obscure statement of

claim, opportunity being given to amend if necessary.'"                        Ibid.

      "[T]he Court is not concerned with the ability of plaintiffs

to prove the allegation contained in the complaint." Ibid. (citing

Somers Constr. Co. v. Bd. of Educ., 198 F. Supp. 732, 734 (D.N.J.

1961)).     "For purposes of analysis plaintiffs are entitled to

every reasonable inference of fact."              Ibid. (citing Indep. Dairy

Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956)).

"The examination of a complaint's allegations of fact required by

the   aforestated     principles    should        be   one       that     is   at    once

painstaking    and    undertaken     with     a    generous         and    hospitable

approach."    Ibid.

                                     III.

      Plaintiffs      contend   defendants         "had      a     clearly       defined

obligation to pay the $50,000 commission to ComRealty."                               They

argue   pursuant     to   section   14.1(c)       of   the       lease,    the      second

commission installment became "due and payable on the closing date

of the conveyance."       We disagree.



                                      6                                          A-3265-15T1
     "A   contract    is   an   agreement   resulting   in   obligation

enforceable at law. . . .        To be enforceable as a contractual

undertaking, an agreement must be sufficiently definite in its

terms that the performance to be rendered by each party can be

ascertained with reasonable certainty."      W. Caldwell v. Caldwell,

26 N.J. 9, 24-25 (1958) (citing Friedman v. Tappan Dev. Corp., 22

N.J. 523, 531 (1956)).     "The polestar of contract construction is

to discover the intention of the parties as revealed by the

language used by them."    Karl's Sales & Serv. v. Gimbel Bros., 249

N.J. Super. 487, 492 (1991).

     "Generally, the terms of an agreement are to be given their

plain and ordinary meaning."      M.J. Paquet v. N.J. DOT, 171 N.J.

378, 396 (2002).     "[W]here the terms of a contract are clear and

unambiguous there is no room for interpretation or construction

and the courts must enforce those terms as written." Karl's Sales,

249 N.J. Super. at 493 (citing Kampf v. Franklin Life Ins. Co.,

33 N.J. 36, 43 (1960)); see Cty. of Morris v. Fauver, 153 N.J. 80,

103 (1998) (citation omitted).

     The courts may not "remake a better contract for the parties

than they themselves have seen fit to enter into, or to alter it

for the benefit of one party and the detriment of the other."

Ibid. (citing James v. Fed. Ins. Co., 5 N.J. 21, 24 (1950)).           "A

court has no power to rewrite the contract of the parties by

                                   7                            A-3265-15T1
substituting a new or different provision from what is clearly

expressed in the instrument."   E. Brunswick Sewerage Auth. v. E.

Mill Assocs., Inc., 365 N.J. Super. 120, 125 (App. Div. 2004)

(citations omitted).

    Here, the assignment stated:

         Assignee hereby assumes and agrees to perform
         all of the terms, covenants and conditions of
         the Lease on the part of Assignor required to
         be performed by Landlord thereunder, from and
         after the date hereof (but not those arising
         or required to be performed prior thereto).

The motion judge concluded:

         The Assignment is dated September 28, 2012,
         the same date the second commission payment
         became due to ComRealty under the Lease.
         Accordingly, as the second commission payment
         was due on the date of the closing – which was
         the day Suh Realty assumed its obligations
         under the Lease – and not prior to that date,
         it is undisputed that the obligation to pay
         the second installment for the commission was
         none other than Suh Realty's.       Contrary to
         Plaintiff's argument that Defendants' focus
         [is] on the wrong assignment provision – and
         should focus on paragraph 2 – the two
         paragraphs   are   not    mutually    exclusive.
         Paragraph 2 specifies the assignor would not
         be    responsible    for     the    duties    or
         responsibilities    under    the   Lease   after
         September 28, 2012.       Paragraph 3 further
         narrows   the    scope    of   the    assignor's
         obligations by placing those obligations upon
         the assignee for the date of the transaction.
         Accordingly,   Suh    Realty's   complaint    is
         dismissed pursuant to [Rule] 4:6-2(e), as it
         has failed to plead a cause of action upon
         which relief may be granted.


                                8                           A-3265-15T1
       Our de novo review leads us to the same conclusion as the

motion   judge.        Plaintiffs'    complaint    could    only       proceed      if

defendants were responsible for payment of the $50,000 commission.

The plain language of the contract indicates plaintiffs were

responsible for payment of the commission.             Therefore, the motion

judge properly dismissed plaintiffs' complaint for failure to

state a claim.

                                      IV.

       Plaintiffs contend "Redstone was just one entity among many

that   Smargisso   and    Trematore    intentionally       set    up    to    shield

themselves and hide their assets."           Therefore, plaintiffs assert

the motion judge should not have barred them from asserting their

fraudulent conveyance and veil piercing claims by dismissing the

complaint.

       Because   the   plain   language     of   the   lease     and   assignment

demonstrate Suh Realty was obligated to pay the second $50,000

commission payment, we do not reach the fraudulent conveyance and

veil piercing arguments.       These arguments, along with the argument

the motion judge erred by dismissing their claim for punitive

damages, lack sufficient merit to warrant further discussion in a

written opinion.       R. 2:11-3(e)(1)(E).

       Affirmed.



                                       9                                     A-3265-15T1
