DOVID RUDNICKI VS. JOSHUA Z. SCHWARTZMAN (C-000104-19, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 29, 2021
• Docket: A-4063-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4063-19

DOVID RUDNICKI,

Plaintiff-Appellant,

v.

JOSHUA Z. SCHWARTZMAN and 308CB, LLC,

Defendants-Respondents. ___________________________

Submitted October 18, 2021 – Decided October 29, 2021

Before Judges Mayer and Natali.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-000104-19.

Dovid Rudnicki, appellant pro se.

Simio & Jones, LLP, attorneys for respondent (William B. Jones, II, on the brief).

PER CURIAM Plaintiff Dovid Rudnicki filed a complaint in which he sought a

declaration of adverse possession of a portion of defendants Joshua Z.

Schwartzman and 308CB, LLC's lot, which adjoined property he purchased in

2015. He contends that in the early 1960s, defendants' predecessor, Terry Perry,

installed a chain link fence within the boundaries of defendants' property.

According to plaintiff, that act transferred ownership of the disputed portion of

defendants' lot as it evidenced his "open and notorious" possession for a period

of thirty years as required under N.J.S.A 2A:14-30.

After the close of discovery, defendants moved for summary judgment

and supported their application with a fully compliant Rule 4:46-2(a) statement

of material facts and the affidavits of Perry and Joshua Feldberger, whose father

owned plaintiff's lot from 2011 until the 2015 sale to plaintiff. Notably, Perry

certified that during the approximate forty-three-year-period he owned the

property, only he and his tenants occupied the property, and no one ever

challenged his ownership rights.

For his part, Feldberger attested that neither he, nor his father, "walked

onto," "possessed," or "attempted to claim any of [defendants' property] as our

own." He further certified that he never considered the boundary line for the

A-4063-19 2 parties' respective properties to be delineated by the chain link fence, but rather

by the official surveys.

Plaintiff filed belated opposition, which failed to include a compliant

statement of material facts admitting or disputing any of defendants' statements

as required by Rule 4:46-2(b), or any competent proofs contradicting defendants'

affidavits or exhibits. After hearing oral arguments, Judge Francis R. Hodgson,

Jr., granted defendants' summary judgment application and dismissed plaintiff's

complaint with prejudice. In his accompanying May 22, 2020 oral decision,

Judge Hodgson, relying in part on Mannillo v. Gorski, 54 N.J. 378 (1969),

rejected plaintiff's claim that adverse possession could be established based

solely on the existence of the chain link fence on defendants' property.

Judge Hodgson explained that a "fence by itself, without open or notorious

possession, is insufficient to establish adverse possession." The court also noted

that plaintiff's proofs consisted exclusively of "unsupported self-serving

statements and pictures with no foundation," and were thus insufficient to create

a genuine and material factual question supporting his claim that he or his

predecessors possessed the disputed property openly, notoriously, continuously

and in an uninterrupted and exclusive manner for the statutorily required thirty-

year period.

A-4063-19 3 On appeal, plaintiff challenges the court's factual findings and legal

conclusions contending that under New Jersey law "a fence is considered open

and notorious," and he need not demonstrate "hostile" intent to establish adverse

possession. We have reviewed the summary judgment record consistent with

our de novo standard of review, see Murray v. Plainfield Rescue Squad, 210 N.J.

581, 584 (2012), and conclude that plaintiff's arguments are without sufficient

merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm

for the reasons expressed in Judge Hodgson's well-reasoned May 22, 2020 oral

decision.

Affirmed.

A-4063-19 4