                        NOT FOR PUBLICATION WITHOUT THE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-2968-16T1

STEVEN D'AGOSTINO,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

GESHER LLC, SCOTT LINDENBAUM,
KEITH LINDENBAUM, KAREN
LINDENBAUM, GENNARO PAGANO,
ANTOINETTE PAGANO, CENTURY 21/
GEMINI REO LLC,

        Defendants-Respondents
        Cross-Appellants,

and

GAYLE COLAVITO and FEIN SUCH
KAHN AND SHEPARD, PC,
NEWPORT REALTY, INC. AND
NICHOLAS MANDVENO,

     Defendants.
______________________________

              Argued May 24, 2018 – Decided June 8, 2018

              Before Judges Simonelli and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Docket No. L-0522-
              12.
          Steven      D'Agostino,      appellant/cross-
          respondent, argued the cause pro se.

          Alyse Berger Heilpern argued the cause for
          respondents/cross-appellants    Century   21/
          Gemini REO LLC, Gennaro Pagano and Antoinette
          Pagano (L'Abbate, Balkan, Colavita & Contini,
          LLP, attorneys; John R. Gonzo, of counsel and
          on the brief).

          Kevin P. Gilmartin argued the cause for
          respondents/cross-appellants Gesher LLC, and
          Scott, Keith and Karen Lindenbaum (Rothstein,
          Mandell, Strohm & Halm, PC, attorneys; Michael
          L. Pescatore, of counsel and on the brief).

PER CURIAM

     Plaintiff Steven D'Agostino appeals from the February 3, 2017

Law Division order, which denied his motion for post-judgment

interest pursuant to Rule 4:42-11.   Defendants Century 21/Gemini

REO, LLC, Gennaro and Antoinette Pagano (collectively Pagano), and

defendants Gesher LLC and Scott, Keith, and Karen Lindenbaum

(collectively Gesher)1 cross-appeal from the denial of their cross-

motions to impose frivolous lawsuit sanctions pursuant to N.J.S.A.

2A:15-59.1.   We affirm.

                                I.

     This matter involved plaintiff's claims against defendants

for allegedly interfering with his attempt to purchase property.



1
   We shall sometimes refer to Pagano and Gesher collectively as
defendants.


                                2                           A-2968-16T1
The trial court dismissed the complaint with prejudice pursuant

to Rule 4:6-2(e) for failure to state a claim upon which relief

could   be   granted    and   denied     plaintiff's   motion    for

reconsideration.   See D'Agostino v. Gesher LLC, No A-1040-12 (App.

Div. Jan. 15, 2015) (slip op. at 1).     We reversed and remanded.

Id. at 19.

     Thereafter, plaintiff filed a motion with this court for

appellate costs and sanctions.     In a February 23, 2015 order, we

denied the motion.   Plaintiff took no further action with respect

to the order.      Accordingly, he is not entitled to costs and

sanctions for the first appeal.2

     On April 29, 2016, the parties entered a global settlement

in the amount of $70,000, with Pagano paying plaintiff $55,000 and

Gesher paying $15,000 within thirty days.    The settlement did not

provide for post-settlement interest.      Plaintiff agreed to the

global settlement under oath on the record and testified he entered

into it freely, voluntarily, and without force or coercion.




2
   Plaintiff argues in the present appeal that he is entitled to
costs for the first appeal, citing only part of Rule 2:11-5 that
states costs on appeal "shall be taxed by the clerk of the
appellate court . . . in favor of the prevailing party."      He
conveniently omits the language that costs on appeal "shall be
taxed by the clerk of the appellate court in the manner ordered
by the appellate court. . . ."    (Emphasis added).   We did not
order an award of costs to plaintiff.

                                   3                        A-2968-16T1
     On April 29, 2016, the trial court entered an order of

dismissal, which listed the terms of the settlement, marked the

case settled, and dismissed it with prejudice.               All parties signed

the order.    Contrary to plaintiff's position on appeal, the order

did not award him any money or order defendants to make payment.

Accordingly, the order was not a judgment or enforceable as a

judgment.

     Before    the   expiration   of       thirty   days,    on   May    4,     2016,

plaintiff filed a motion to vacate the global settlement as to

Gesher only.    As a result, defendants, who were ready, willing,

and able to pay the settlement money, withheld payment pending

disposition of the motion, and filed cross-motions to enforce the

settlement and for attorney's fees and costs.                 On June 7, 2016,

the court entered an order enforcing the settlement and denying

all other relief.

     Plaintiff appealed and defendants cross-appealed.                         Pagano

filed a motion with this court to deposit its portion of the

settlement with the court. In an August 29, 2016 order, we granted

Pagano's motion.        In a November 14, 2016 order, we dismissed

plaintiff's    appeal    for   failure        to    prosecute.          Defendants

subsequently withdrew their cross-appeals.

     Thereafter,     plaintiff    demanded         payment   of   post-judgment

interest, but defendants declined.           On January 10, 2017, plaintiff

                                       4                                      A-2968-16T1
filed a motion for post-judgment interest pursuant to Rule 4:42-

11 and for sanctions. Defendants filed cross-motions for frivolous

lawsuit sanctions pursuant to N.J.S.A. 2A:15-59.1.     In a February

3, 2017 order, the motion judge denied all motions. In a statement

of reasons, the judge found plaintiff's appeal from the order

enforcing the settlement was meritless.     Citing Mehta v. Johns-

Manville, 163 N.J. Super. 1 (App. Div. 1978), the judge found it

would be inequitable to compel defendants to pay interest for a

delay in payment not attributable to them.      Citing Gerhardt v.

Continental Ins. Co., 48 N.J. 291 (1966), the judge found "[a]n

award of counsel fees, sanctions and costs is disfavored unless

sanctioned under [Rule] 4:42-9 and no compelling reasons are

established for the award."    This appeal followed.

                                 II.

     On appeal, plaintiff argues he is entitled to post-judgment

interest as a matter of right; Pagano should be responsible for

retrieving the money deposited with the court; and he is entitled

to costs for this appeal.     We have considered these arguments in

light of the record and applicable legal principles and conclude

they are without sufficient merit to warrant discussion in a

written opinion.    R. 2:11-3(e)(1)(E).      However, we make the

following brief comments.



                                  5                          A-2968-16T1
     Plaintiff cites no authority requiring Pagano to retrieve the

settlement money deposited with the court.        There was no judgment

entered in this case.     Thus, cases plaintiff cites regarding the

right   of   judgment   creditors   to     post-judgment    interest   are

inapplicable.

     Further, Hagrish v. Olson, 254 N.J. Super. 133 (App. Div.

1992), on which plaintiff relies to argue he is entitled to

interest absent a judgment, is also inapplicable.             There, the

defendants refused to finalize the settlement, thus forcing the

plaintiffs to file a motion to enforce.               Id. at 136-37.     We

reversed the trial court's denial of the plaintiff's motion, and

remanded for entry of an order requiring immediate payment of the

settlement money plus interest.         Id. at 139.

     Here, it was plaintiff who refused to abide by the global

settlement and defendants who were forced to file a motion to

enforce and defend a frivolous appeal.            Defendants cannot be

compelled to pay interest on the settlement where they clearly did

not cause the delay.

     Contrary to plaintiff's position, Mehta is still good law and

has been cited with approval by this court.           See Regino v. Aetna

Casualty & Sur. Co., 200 N.J. Super. 94, 99 (App. Div. 1985);

Baker v. Nat'l State Bank, 353 N.J. Super. 145, 177 (App. Div.

2002.   In Mehta, the defendants appealed from an order adding

                                    6                             A-2968-16T1
interest to a settlement.       163 N.J. Super. at 2.       We reversed,

concluding, "it is inequitable to compel the payment of interest

by defendants for a delay which [cannot] be attributed to them in

any respect whatsoever."    Id. at 6-7.      So too, it is inequitable

to compel defendants here to pay interest, as the delay in payment

cannot be attributed to them in any way whatsoever.          Further, it

would be utterly inequitable to award interest to a party, such

as plaintiff, who was solely responsible for the delay in payment.

Had plaintiff abided by the global settlement and not filed the

motion to vacate and the frivolous appeal, he would have received

the payment of the settlement funds long ago.          We cannot permit

plaintiff to benefit with any interest under the circumstances of

this case.

                                  III.

     On cross-appeal, defendants argue the motion judge erred in

failing to award frivolous lawsuit sanctions against plaintiff

under   N.J.S.A.   2A:15-59.1   for    his   motion   for   post-judgment

interest.3   We disagree, but for reasons different from those


3
   We decline to address Pagano's additional argument that the
court erred in failing to award attorney's fees for plaintiff's
motion to vacate the settlement. Pagano voluntarily dismissed its
cross-appeal from the June 7, 2016 order denying its cross-motion
for attorney's fees and costs, and the time to reinstate that
appeal has long expired. Further, Pagano's notice of cross-appeal
states it is only appealing from the February 3, 2017 order. "[I]t


                                   7                              A-2968-16T1
stated by the motion judge.      See Aquilio v. Cont'l Ins. Co. of

N.J., 310 N.J. Super. 558, 561 (App. Div. 1998).

     Claims against parties governed by N.J.S.A. 2A:15-59.1 are

affected by the procedural but not the substantive provisions of

Rule 1:4-8.   Toll Bros., Inc. v. Twp. of W. Windsor, 190 N.J. 61,

69-73 (2007).   The procedural provisions of Rule 1:4-8(b)(1) are

as follows, in pertinent part:

          An application for sanctions under this rule
          shall be by motion made separately from other
          applications and shall describe the specific
          conduct alleged to have violated this rule.
          No such motion shall be filed unless it
          includes a certification that the applicant
          served written notice and demand pursuant to
          R. 1:5-2 to the attorney or pro se party who
          signed or filed the paper objected to.    The
          certification shall have annexed a copy of
          that notice and demand, which shall (i) state
          that the paper is believed to violate the
          provisions of this rule, (ii) set forth the
          basis for that belief with specificity, (iii)
          include a demand that the paper be withdrawn,
          and (iv) give notice, except as otherwise
          provided herein, that an application for
          sanctions will be made within a reasonable
          time thereafter if the offending paper is not
          withdrawn within 28 days of service of the
          written demand. . . . The certification shall
          also certify that the paper objected to has
          not been withdrawn or corrected within the
          appropriate time period provided herein

is only the judgments or orders or parts thereof designated in the
notice of appeal which are subject to the appeal process and
review." Pressler and Verniero, Current N.J. Court Rules, cmt. 6
on R. 2:5-1(f)(1) (2018); see 1266 Apt. Corp. v. New Horizon Deli,
Inc., 368 N.J. Super. 456, 459 (App. Div. 2004).


                                  8                        A-2968-16T1
              following service of the written notice and
              demand.

Failure to conform to the rule's procedural requirements will

result in a denial of the request for a counsel fee sanction.

State v. Franklin Sav. Account No. 2067, 389 N.J. Super. 272, 281

(App. Div. 2006).

      Here, the record is devoid of evidence that defendants served

the required written notice and demand on plaintiff or filed the

required certification, and defendants do not argue on appeal that

they complied with the rule.          Because of defendants' failure to

conform to the rule's procedural requirements, we are constrained

to   affirm    the   denial   of   their   motion   for   frivolous   lawsuit

sanctions.

      Affirmed.




                                       9                              A-2968-16T1
