Kean ‘appeals’ court ruling on Merck property

UNION COUNTY, NJ — Despite a Superior court judge ruling earlier this month that Kean has no legal claim to the right of first refusal on the 50-acres of Merck property fronting Morris Avenue, the university filed a “motion for reconsideration” with the court late last week.

Kean had a 45-day window to file an appeal, but opted for a rehearing, or reconsideration, to alter or amend the judgement. A motion of this particular type is different than an appeal and had to be filed within 20-days of the 11-page decision rendered by Superior Court Judge Katherine R. Dupuis on Jan. 5.

Union Mayor Manuel Figueiredo slammed Kean University President Dawood Farahi and the board of trustees, saying the decision to continue pursuing costly legal remedies after being told by the court their claims of the right of first refusal were “completely unsubstantiated” prevents the township from obtaining $4 million in taxes that is much needed.

“The court’s decision this month was decisive and left no room for misinterpretation; the land does not belong to Kean University. This latest land grab by President Farahi and the board of trustees will cost even more taxpayer money in unnecessary court costs and will further delay the $4 million in property tax that will be paid to the township as a result of the deal with Russo Developers,” the mayor said, adding the state university is now being investigated by the state comptroller’s office because of the purchase of a conference table from China using $219,000 in taxpayers dollars.

According to the New Jersey Rules Governing Civil Practice involving court judgements, this type of motion has to specifically state the basis for reconsideration, including why Kean believes the court overlooked or erred in its decision.

The motion, filed by Lindabury, McCormick, Estabrook & Cooper, the firm representing Kean University’s interests in this matter, made three points, including that the court overlooked and failed to apply “the statute of uses” to determine that legal title belonged to current heir John Kean as the beneficiary. Therefore, they said, no written assignment, or will, was required to prove his right to hand over the right of first refusal to the university.

Further, the motion for reconsideration pointed out there were two additional legal reasons why the court decision was not accurate. The second involved the “right of first refusal,” which Kean’s legal team maintained was a real property asset of the Kean trust and legal title of that trust automatically shifted to John Kean, as an heir of the property in question.
The third reason pointed to the fact that the legal decision involving the transfer of such title to John Kean should not have been based on the Statute of Frauds.

To substantiate the three claims for Dupuis to reconsider, Kean’s legal team submitted the 1925 Last Will and Testament where one John Kean passed on all the “right, title and interest” he received from an uncle, also named John Kean.

According to the will, all real property, known as Ursino at the time — the name of a restaurant on the Kean campus — was passed on to Kean’s eldest son “in fee simple absolute.” When John Kean died in 1949 his estate was probated in the Union County Surrogate’s Office, where the last will and testament was filed.

Kean’s legal team stressed in their motion that Dupuis made her decision based on either a “palpably incorrect or irrational basis” or it was “obvious the court did not consider or failed to appreciate the significance of proactive, competent evidence.”
They further suggested reconsideration by Dupuis should be made to ensure the ultimate goal of “substantial justice” is reached.

Submitted as evidence was that the court “incorrectly determined written assignment” of the property to John Kean was necessary because the land was “real property,” which can be assigned legally. Kean’s legal team suggested this failure on the part of Dupuis prevented the Kean heir from assigning the right to ownership to the university, which they say he had every legal right to do.

As further supporting evidence, Kean’s legal team said there were state statutes that maintained every person has the right to bequest property in a trust to another person. However, while they said this statute remains in effect in New Jersey, they admitted there was little case law addressing this particular issue. But, they strongly suggested interpretation of the law was in Kean’s favor and not against, as Dupuis ruled.

They argued the court should reverse its decision and rule that John Kean acquired the Merck property legally and had every right to transfer the right of first refusal to the Kean University Board of Trustees, and they, in turn, had the right to purchase the Merck property.

Also brought up was the fact that in 1986, when John Kean sold the property to the Schering Corporation, it was specifically noted the right of first refusal was fully in force and intended for the personal benefit of the Kean family “whether or not they continue to own any lands adjoining the property.”

The legal team said this satisfied the legal requirement that the right of first refusal be in writing, which was one of the reasons Dupuis ruled in favor of Russo Development, who had been in negotiation with Merck for a year to buy the 50-acre parcel of land.

The township, which has been at battle with Kean over this issue since last fall for fear of losing potentially $4 million in tax ratables should the university gain control of the land, reacted strongly to news a motion for reconsideration had been filed.

“The complete and total disregard for the people of our community who have worked in partnership with the university over these past years is almost incomprehensible,” Figueiredo said, pointing out he was “stunned to see Kean University leadership continuing to persist in trying to hold the land hostage.”

The mayor pointed out the university remains $330 million in debt and “still handed out $19 million in taxpayer money last year, including a staggering $200,000 bonus for Dr. Farahi, which doesn’t even include the $219,000 they spent for the table they had made in China.”

“President Farahi and the board of trustees are presiding over huge tuition increases, plummeting admissions and consistently decreasing credit ratings while they continue to spend taxpayer money for a land claim that has already been strongly slapped down by the courts,” the mayor added.

Figueiredo said Farahi and the board of trustees “clearly were going to continue pushing forward with their attempted land grab,” while exhibiting complete disregard for the Superior Court ruling and continued cost to taxpayers.

“There is no course of action we can take as a deterrent for university leadership’s continued mismanagement of Kean University, but we can and will continue to fight for the 44-acre Merck property in our town,” the mayor said.