LAKESIDE ESTATES CONDOMINIUM ASSOCIATION VS. ROCHELLE GIMMILLARO (DC-000827-17, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 21, 2018
• Docket: A-1666-17T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1666-17T4 LAKESIDE ESTATES CONDOMINIUM ASSOCIATION,

Plaintiff-Respondent,

v.

ROCHELLE GIMMILLARO,

Defendant-Appellant. ____________________________

Submitted December 10, 2018 – Decided December 21, 2018

Before Judges Messano and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. DC-000827-17.

Rochelle Gimmillaro, appellant pro se. 1

Eric S. Kershenblatt, attorney for respondent.

1 In her merits brief, Rochelle Gimmillaro listed herself erroneously in her caption as a plaintiff, and Lakeside Estates Condo Association, Inc., as a defendant. PER CURIAM

In this Special Civil Part book account case, involving a dispute over

defendant's obligation to pay maintenance or condominium fees, defendant

appeals from an October 10, 2017 order denying her motion for reconsideration

of summary judgment that the judge had improvidently entered in favor of

plaintiff on September 18, 2017. We reverse the order denying reconsideration

and vacate summary judgment because there exists genuine issues of material

fact as to the amount that defendant owes, and we remand for further

proceedings to resolve the factual disputes.

Defendant entered into a payment plan before plaintiff previously

obtained default judgment. She learned that plaintiff obtained default judgment

when plaintiff levied on her bank account. Defendant vacated default judgment

and lifted the levy, and maintained that she adhered to and even made payments

before they became due. Plaintiff disagreed and filed its motion for summary

judgment.

Although defendant filed an opposition to plaintiff's motion, the judge

granted the motion as unopposed. Defendant filed a motion for reconsideration

and provided the opposition that the judge had not considered. On

A-1666-17T4 2 reconsideration, the judge concluded defendant "failed to allege sufficient good

cause" and denied reconsideration.

On appeal, defendant argues primarily that there exists genuine issues of

material fact that preclude summary judgment. Defendant acknowledges that

she agreed to pay plaintiff, but disputes the amount due. She is not contending

that she is entitled to an offset for monies that she had prepaid under the

agreement. Rather, defendant certified that plaintiff committed bookkeeping

errors upon receipt of those payments, which led to unnecessary late fees and

legal fees. She contends the judge abused his discretion by denying

reconsideration, maintains that summary judgment was inappropriate, and urges

us to remand for further proceedings.

A motion for reconsideration is committed to the sound discretion of the

court, which should be "exercised in the interest of justice." Cummings v. Bahr,

295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J.

Super. 392, 401 (Ch. Div. 1990)). Reconsideration is appropriate only when a

court has rendered a decision "based upon a palpably incorrect or irrational

basis," or failed to consider or "appreciate the significance of probative,

competent evidence." Ibid. (quoting D'Atria, 242 N.J. Super. at 401). We

review the denial of a motion for reconsideration to determine whether the judge

A-1666-17T4 3 abused his discretionary authority. Id. at 389. We "may only disturb the

decision below if [we] find[] error which is 'clearly capable of producing an

unjust result.'" Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408,

413 (App. Div. 2006) (quoting R. 2:10-2).

We conclude the judge abused his discretion by denying reconsideration.

Here, he denied the motion concluding that defendant failed to show "good

cause," but such a showing does not govern motions for reconsideration. Rather,

we reach our conclusion because the judge's statement of reasons denying the

motion reflects that he did not properly consider the opposition that defendant

had filed in response to plaintiff's motion for summary judgment. Instead, he

explained that reconsideration motions are inappropriate "to bring up arguments

or facts known to the movant prior to entry of the decision being challenged,"

and that such motions are unjustified if a litigant is displeased by the earlier

decision. That said, defendant certainly showed "good cause" to grant

reconsideration, especially because the judge did not originally consider the

opposition. Consequently, the judge should have reconsidered the soundness of

his summary judgment order, which we will do now.

When reviewing an order granting summary judgment, we apply "the

same standard governing the trial court . . . ." Oyola v. Xing Lan Liu, 431 N.J.

A-1666-17T4 4 Super. 493, 497 (App. Div. 2013). A court should grant summary judgment

when the record reveals "no genuine issue as to any material fact" and "the

moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). We owe no special deference to the motion judge's conclusions on issues

of law. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995). We therefore consider the facts in a light most favorable to plaintiff.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Having done

so, the record reflect numerous factual disputes.

In her summary judgment opposition, defendant outlined accounting

discrepancies. She identified several payments marked as late, but that she

claims were timely paid. For example, in November 2015, defendant's payment

was marked as "prior balance" and subsequent late charges were applied. In

2016, plaintiff again applied late charges even though defendant claims to have

made timely payments. And in 2016 and 2017, defendant made several

payments on time but they had to be forwarded to a new management company.

Moreover, she listed a number of association fees and dues that plaintiff

allegedly "mismarked." For example, in February and March 2014, plaintiff

recorded the payments as "prepaid" and "prior balance" respectively. For the

years 2015, 2016, and 2017, plaintiff's ledger reflects defendant's payments as

A-1666-17T4 5 "prior balance," and "legal." Finally, defendant produced her own ledger

showing invoices, charges billed, and payments between March 2012 and April

2015.

We therefore reverse the orders and remand for further proceedings. We

do not retain jurisdiction.

A-1666-17T4 6