FERNANDO A. PORTES VS. EILEEN MARKENSTEIN (L-1335-18, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 22, 2020
• Docket: A-0319-18T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0319-18T1

FERNANDO A. PORTES,

Plaintiff-Appellant,

v.

EILEEN MARKENSTEIN, DALIAH AMAR, GEORGE DOERRE, HENRY KADEN, MICHAEL CANBERG, TROY TOWERS CORPORATION, FS RESIDENTIAL, and TJ LEGG,

Defendants-Respondents,

and

THE STATE OF NEW JERSEY,

Defendant. __________________________________

Argued telephonically June 3, 2020 – Decided June 22, 2020

Before Judges Fuentes, Haas and Mayer.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1335-18. Fernando A. Portes, appellant, argued the cause pro se.

Brandon D. Minde argued the cause for respondents Eileen Markenstein, Daliah Amar, George Doerre, Henry Kaden, Michael Canberg, Hudson Troy Towers Corporation and FS Residential (Dughi Hewit Domalewski PC, attorneys; Suzanne D'Amico Brodock, on the brief).

Christopher Kennedy Harriott argued the cause for respondent TJ Legg (Florio Kenny Raval LLP, attorneys; Christopher Kennedy Harriott, on the brief).

PER CURIAM

Plaintiff Fernando A. Portes appeals from the Law Division's September

7, 2018 order denying his motion for reconsideration of a June 22, 2018 order

that had granted a motion filed by the "Troy Towers defendants" 1 to dismiss his

complaint against them. Plaintiff also appeals from the court's March 15, 2019

order granting the motion filed by the remaining defendant, municipal

prosecutor T.J. Legg, to dismiss the complaint. We affirm.

1 The Troy Towers defendants include: Hudson Troy Towers Corporation; its property manager, Michael Canburg; the company Canburg works for, FS Residential; members of its Board of Directors, George Doerre, Daliah Amar, and Eileen Markenstein; and another co-op resident, Henry Kaden. Plaintiff does not challenge the court's June 22, 2018 order dismissing its complaint against defendant State of New Jersey. Therefore, the State is not a party to this appeal. A-0319-18T1 2 Plaintiff is a shareholder in Hudson Troy Towers Corporation, which is a

residential co-op. On a number of occasions over the past several years, plaintiff

has sought an elected position on the Troy Towers' Board of Directors (Board).

However, the Board did not permit him to run for this office after he violated

the Board's rules by including disparaging comments about other candidates in

the candidate biographies he submitted.

Plaintiff filed three lawsuits against the Troy Towers defendants alleging,

among other things, that these defendants had discriminated against him by

refusing to permit him to participate as a candidate in the Board's elections. The

trial courts dismissed all three of these complaints, with the last dismissal

occurring in April 2015.

In April 2018, plaintiff filed a fourth complaint against the Troy Towers

defendants, raising claims that were identical to those that were litigated and

decided in the prior litigation. Plaintiff also alleged that Legg, while acting as

a municipal prosecutor, discriminated against him on the basis of his race by

prosecuting him for an alleged violation of a no-contact order a court had entered

between plaintiff and one of the Board members.

The Troy Towers defendants filed a motion to dismiss the portions of the

complaint pertaining to them. After plaintiff failed to respond to the complaint,

A-0319-18T1 3 the trial judge granted the motion on June 22, 2018, and dismissed plaintiff's

complaint against the Troy Towers defendants with prejudice. In so ruling, the

judge explained, "This unopposed motion is granted as it appears that these very

same issues although involving different years, were already litigated and the

other counts do not state a cause of action."

Plaintiff filed a motion for reconsideration of the June 22, 2018 order.

Following oral argument, the same denied the motion in an order issued on

September 7, 2018. "A motion for reconsideration is designed to seek review

of an order based on the evidence before the court on the initial motion, R. 1:7-

4, not to serve as a vehicle to introduce a new evidence in order to cure an

inadequacy in the motion record." Capital Fin. Co. of Del. Valley, Inc. v.

Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (citing Cummings v. Bahr,

295 N.J. Super. 374, 384 (App. Div. 1996)). Thus, reconsideration should only

be granted in those cases in which the court had based its decision "upon a

palpably incorrect or irrational basis," or did not "consider, or failed to

appreciate the significance of probative, competent evidence." Granata v.

Broderick, 446 N.J. Super. 449, 468 (App. Div. 2016) (quoting D'Atria v.

D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

A-0319-18T1 4 Applying these standards, the judge explained in his thorough oral

decision that plaintiff failed to demonstrate that the dismissal of his complaint

was premised "upon a palpably incorrect or irrational basis," or that the court

failed to consider the evidence and legal arguments he presented. Instead,

plaintiff simply repeated the identical arguments he raised in the prior

proceedings, which had all already been dismissed.

Legg subsequently moved for summary judgment and sought to dismiss

the portions of the complaint pertaining to him. Legg argued that as a municipal

prosecutor, he was entitled to qualified immunity for his actions in prosecuting

plaintiff for contempt of the no-contact order. Following oral argument, a

second judge granted Legg's motion and dismissed plaintiff's complaint wi th

prejudice on March 15, 2019.

In his comprehensive written decision, the judge explained that the

doctrine of qualified immunity shields government officials like Legg from

liability for civil damages while they are performing discretionary functions,

unless their conduct violates established statutory or constitutional rights "of

which a reasonable person would have known. Morillo v. Torres, 222 N.J. 104,

116 (2015) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))." Here, Legg

A-0319-18T1 5 was a municipal prosecutor and, in that position, the judge found he had

"absolute discretion [in deciding] whether to bring charges" against plaintiff.

The judge further found that plaintiff failed to present any evidence that

Legg violated his statutory or constitutional rights. The judge stated,

[Legg] evaluated the alleged violations of the no- contact order, and decided that [p]laintiff's conduct was in violation of the no-contact order. The mere allegation of racial discrimination by [p]laintiff is not supported by evidence, and so it cannot be said [Legg] violated a clearly established statutory or constitutional right. Plaintiff simply cites articles to show white privilege and racial biases exist. Plaintiff cites to incidents before several [j]udges that have absolutely no bearing to the violation of the no-contact order and subsequent investigation only.

The [c]ourt finds [Legg] is entitled to qualified immunity. Plaintiff cannot demonstrate objective bad faith and subjective bad faith.

This appeal followed.

On appeal, plaintiff raises the same arguments he unsuccessfully pressed

before the trial court. Having considered these contentions in light of the record

and the applicable law, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the September

7, 2018 and March 15, 2019 orders substantially for the reasons set forth by the

two judges in their respective decisions.

A-0319-18T1 6 We add only the following comment. In his appellate brief, plainti ff

alleges for the first time, without citing any competent evidence whatsoever,

that one of the judges who presided over this matter was biased against him.

Appellate courts review legal arguments addressed to claimed errors by trial

courts. Criticism of trial judges who made rulings adverse to the party filing an

appeal do not constitute proper appellate argument. A party's contention that a

trial judge was unfair or biased "cannot be inferred from adverse rulings against

a party." Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008).

Based on our review of the appellate record, we conclude that both judges

accorded plaintiff a full opportunity to present evidence and arguments in

support of his claims. Each judge treated plaintiff in a respectful and

professional manner throughout the proceedings before them. Therefore, we

reject plaintiff's unsupported contentions to the contrary.

Affirmed.

A-0319-18T1 7