NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3008-23
LOBNA ELBERRI,
Plaintiff-Appellant,
v.
CROSSPOINTE CONDO ASSOCIATION, JOSEPH GENCHIK, DHELMA SALAZAR, TANIA SALAZAR, and KUAN HSIUNG CHOU,
Defendants-Respondents,
and
JACOBSON GOLDFARB SCOTT INSURANCE and ALLSTATE INSURANCE COMPANY,
Defendants. _____________________________
Submitted September 10, 2025 – Decided October 2, 2025
Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7205-20. Lobna Elberri, appellant pro se.
Hill Wallack, LLP, attorneys for respondent Crosspointe Condominium Association (Michael S. Karpoff, on the brief).
Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for respondent Joseph Genchik (Juliann M. Alicino, of counsel and on the brief; Kristin M. Gummoe, on the brief).
O'Toole, Couch & Della Rovere, LLC, attorneys for respondents Dhelma Salazar and Tania Salazar (Michael Della Rovere, on the brief).
Venema, Proko & Keahey, attorneys for respondent Kuan Hsiung Chou (George B. Keahey, on the brief).
PER CURIAM
This dispute arises from flooding incidents that occurred at the
Crosspointe Condominium located in East Brunswick. Plaintiff Lobna Elberri's
ground-floor unit was damaged as a result of the flooding and was deemed
uninhabitable. Plaintiff sued Crosspointe Condominium Association
(Association) as well as three insurance entities 1 and four individual unit owners
whose units allegedly caused the flooding. The individual defendants are
Dhelma Salazar, Tania Salazar, Kuan Hsiung Chou, and Joseph Genchik. After
1 The insurance companies were subsequently dismissed from the case by stipulation or court order. A-3008-23 2 extensive motion practice, the trial court ultimately granted summary judgment
in favor of the Association and the individual defendants and denied
reconsideration, effectively dismissing plaintiff's complaint with prejudice. The
court also granted partial summary judgment on the Association's counterclaim,
which sought a court order to enforce its right to inspect plaintiff's unit and make
necessary repairs.
Despite listing several orders in her amended notice of appeal, other than
challenging the February 3, 2023 order granting the Association's motion for
summary judgment on its counterclaim, plaintiff, who is self-represented, makes
no argument to support any other claim. Accordingly, we deem those claims
waived and only address the February 3 order granting summary judgment to
the Association, which we affirm. See Pressler and Verniero, Current N.J. Court
Rules, cmt. 5 on R. 2:6-2 (2026) ("[A]n issue not briefed is deemed waived.");
see also N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2
(App. Div. 2015) ("An issue that is not briefed is deemed waived upon appeal.");
Telebright Corp. v. Dir., N.J. Div. of Tax'n, 424 N.J. Super. 384, 393 (App. Div.
2012) (deeming contention waived when party failed to include arguments
supporting contention in its brief other than "one sentence in the conclusion
section").
A-3008-23 3 I.
The following facts are germane to the issues properly before us on
appeal. Plaintiff purchased a ground-floor unit at Crosspointe Condominium in
December 2018. Plaintiff's unit is located in a condominium building consisting
of three floors. As a unit owner, plaintiff was subject to the governing master
deed (Master Deed) and bylaws of the Association (Bylaws). The Master Deed
defined both the unit elements and the common elements comprising a
condominium building. The Master Deed also specified the responsibility for
and method of addressing casualty losses to the property.
Specifically, Section 11.02 of the Master Deed provided that if any
building, improvement, or common element or part thereof was damaged by
casualty, the repair, restoration, or disposition of insurance proceeds must be
done in accordance with its terms. Section 11.05 stated that if damage was only
to those parts of the unit for which the responsibility for repair was that of the
unit owner, then the net insurance proceeds would be paid to the unit owner.
Section 11.04 specified that if insurance proceeds derived from property loss
exceeded $25,000, the Board of Trustees (Board) of the Association shall enter
into a contract with a licensed contractor for the repair or rebuilding of all the
damaged portions of the affected property in accordance with all applicable
A-3008-23 4 building codes. Subsection (C) of Section 11.04 further provided that the Board
shall employ a qualified party to supervise the repair work to ensure that such
work was properly performed in accordance with plans and specifications.
On October 11, 2020, plaintiff filed a complaint against the Association
alleging that on January 11, 2020, her unit had been "flooded with water from
the above unit." In the complaint, plaintiff claimed that her primary insurance
was the Association and because it was "refusing to give [her] the money to fix
[her] condo" and she had "exhaust[ed] . . . [her] temporary living expenses" from
her own insurance policy with Allstate Insurance Company (Allstate), she was
"forced to move back" into her "uninhabitable" unit, which "[did not] have a
shower, kitchen, [or] ceiling."
The complaint further alleged that plaintiff and her family had "suffered
emotional and physical distress" from being displaced from the unit "for [nine]
months during a global pandemic." In addition, plaintiff asserted that her
"human rights ha[d] been violated" because the Association had enabled two
"white male" tenants who were "involved in the incident . . . to fix their condos
without any issues" but had "discriminat[ed]" against her as "a single woman of
color." In the complaint, plaintiff requested relief in the form of damages,
attorneys' fees, and "any other relief" the court deemed proper.
A-3008-23 5 The Association filed a contesting answer, asserting nine affirmative
defenses and a counterclaim. The counterclaim alleged that the January 11,
2020 flood had damaged "the interior of plaintiff's unit" and "[t]he two units
located directly above plaintiff's unit," as well as "common elements of the
building." As a result, "[p]laintiff submitted a claim to the Association for
insurance proceeds" to repair her unit and the common elements "that were
covered by the Association's casualty insurance policy" with Philadelphia
Indemnity Insurance Company (PIIC).
According to the counterclaim, "Decker Associates adjusted plaintiff's
claim on behalf of . . . [PIIC] and produced a list of items for repair and
replacement in and adjacent to plaintiff's unit," including "removal of the unit's
sheetrock to inspect the walls for potential mold and other underlying damage."
Thereafter, "[PIIC] paid the Association the net sum of $36,147.71," after
withholding the policy's deductible and an amount for depreciation. The
counterclaim further alleged that plaintiff received insurance proceeds in the
amount of $23,521.21 from Allstate "to be used for repairs of her unit, plus
$3,333.33 representing Allstate's estimate of her share of the Association's
policy deductible."
A-3008-23 6 The counterclaim asserted that despite the requirement in Section 11.04
of the Master Deed that the Association should contract directly with a licensed
contractor for the repairs, the Association acquiesced to plaintiff's demand "to
retain her own contractor," conditioned upon the contractor "provid[ing] the
Association with approved plans, appropriate construction permits[,] and a
proper certificate of insurance." However, "little work ha[d] been done in
accordance with the scope of work that was presented by plaintiff's contractor"
and plaintiff had refused to permit the Association "to conduct a complete
inspection of the walls" or "make the necessary repairs." Plaintiff's unit thus
"remain[ed] in an unsafe and dangerous condition" and "create[d] a risk of
further damage to common elements, the unit itself[,] and other units." The
counterclaim sought damages and injunctive relief "compelling plaintiff to grant
the Association immediate access to her unit to fully inspect the unit and to
complete all remaining repairs to the common elements and the unit" and to pay
the Association the Allstate insurance proceeds "to complete the repairs."
In response, plaintiff filed a document objecting to the Association's
affirmative defenses and counterclaim. 2 In it, plaintiff asserted that any delay
in completing the repairs was due to the Association's piecemeal requests of
2 Page three of the document is missing from the record. A-3008-23 7 plaintiff and her contractor as well as the Association's directive in April 2020
to "stop doing any work." Plaintiff claimed that she had allowed the
Association's inspectors into her unit "many times to assess the damages," that
she had already used the Allstate insurance proceeds to replace her tangible
personal property, and that two additional floods had occurred since the January
11, 2020 flood, causing further damage to her unit. According to plaintiff, a
second flood occurred on May 1, 2020, and a third flood occurred on December
2, 2020. Although the Association had sent representatives to assess the
additional damage, plaintiff said she had not received any estimates for the new
damage.
Thereafter, plaintiff filed a first amended complaint (FAC) dated
December 30, 2021, naming the Association, Allstate, Jacobson Goldfarb Scott
Insurance (JGS), and NJM Insurance Group as defendants. She sought the same
relief but added claims for breach of contract and breach of fiduciary duty and
included damages for destruction of personal property and health issues due to
"mold," "dust," "lack of nutrition," and "lack of necessary daily hyg[i]ene."
Plaintiff filed a second amended complaint (SAC) dated February 23, 2022,
naming the same parties and requesting the same relief. In the SAC, plaintiff
asserted that her unit suffered water damage three times after the initial flood—
A-3008-23 8 May 1, 2020, December 2, 2020, and September 1, 2021—resulting in further
damage. The Association filed a contesting answer to the SAC, asserting
twenty-four affirmative defenses and cross-claims for breach of contract,
contribution, and indemnification against the co-defendants.
Plaintiff then filed a third amended complaint (TAC) dated May 19, 2022.
In the TAC, plaintiff added the individual defendants, identifying them as "the
owners of the units that flooded [her] unit." 3 The complaint alleged plaintiff's
"entire condo and personal belongings were damaged and made unliv[able]" by
the four flooding incidents and that the individual defendants and "their
respective insurance companies ha[d] not paid . . . plaintiff any compensation to
repair her condo." Plaintiff again alleged physical and emotional distress, and
sought damages, attorneys' fees, costs of suit, and "other relief." The
Association filed an answer to the TAC, asserting the same twenty-four
affirmative defenses and cross-claims.
On January 6, 2023, the Association moved for partial summary judgment
on its counterclaim, seeking to compel plaintiff "to permit the Association to
make repairs to the common elements in and around [p]laintiff's unit and to
3 Plaintiff titled the document "Fourth Amended Complaint" and did not include NJM Insurance Group as a defendant. A-3008-23 9 restore the [u]nit to its pre-loss structural condition." In support, the Association
submitted the January 4, 2023 certification of Kathleen Fazzaro, the property
manager for Crosspointe Condominium, who confirmed the accuracy of several
motion exhibits, including pertinent portions of the Master Deed and Bylaws;
an April 8, 2020 email exchange between the Association's attorney and
plaintiff; and a report by Accurate Reconstruction, a contractor retained by the
Association, estimating the cost to repair the unit and common elements at
approximately $33,954.73. In the April 8, 2020 email exchange, plaintiff wrote
that "no one [was] allowed [to] touch" her unit because the Association had a
"long history of discriminating" against her and "trying to kill [her]."
The Association filed two additional motions for summary judgment, one
to dismiss plaintiff's claims for emotional and physical damages, and one to
dismiss the complaint for failure to prove causation. In support, the Association
submitted excerpts from plaintiff's October 4, 2022 deposition, in which she
denied seeking treatment from any mental health professional and claimed that
the flooding incidents, for which she allegedly sustained significant damage to
her personal possessions and fixtures, were caused by "broken pipes" in
adjoining units. The Association also submitted a supporting certification by its
counsel, in which counsel averred that "[p]laintiff ha[d] not served an expert
A-3008-23 10 report to substantiate a compensable claim for emotional damages and physical
injuries, and her time to serve [such] a report ha[d] expired." Counsel further
certified that "[p]laintiff ha[d] not served an expert report as to causation for any
of the four water intrusions or to substantiate her claim for damages, and her
time to serve [such] a report ha[d] expired."
The individual defendants also filed motions for summary judgment.
Although plaintiff did not oppose any of the summary judgment motions, she
moved for summary judgment of her own, seeking damages in the amount of
$2.1 million, constituting $100,000 for "the present[-]day inflated estimate
amount to fix her condo," and $2 million "for forcing [her] to live in . . .
uninhabitable, inhumane living conditions."
In three separate orders entered on February 3, 2023, the judge granted
the Association's unopposed motions pursuant to Rule 1:6-2, "substantially for
the reasons set forth in the moving papers." The order addressing the
counterclaim required plaintiff to "permit the Association access to her [u]nit
to: (a) make the necessary repairs to the [c]ommon [e]lements in and around
[her unit]; and (b) restore the [u]nit to its pre-loss condition." The remaining
orders dismissed plaintiff's complaint and all cross-claims as to the Association
A-3008-23 11 with prejudice. The same day, the judge also issued orders granting the
individual defendants' unopposed motions for summary judgment.
Subsequently, on February 21, 2023, plaintiff filed a motion "to redact the
partial summary [judgment] that was granted on February 3, 2023 because . . .
[the Association] has yet to show documented proof that the common elements
. . . were damaged." In support of her motion, plaintiff provided a certification
responding to the statement of material facts submitted with the Association's
motion for summary judgment on its counterclaim. In the certification, plaintiff
asserted that based on the estimate of the Association's Insurance Adjuster,
David Shupe of Decker Associates, as well as her contractor's report, "no
common elements" sustained water damage. Plaintiff also included Shupe's
estimate; her contractor's proposal; an unsigned construction permit dated June
4, 2020; and communications between plaintiff, her contractor, the Association,
its lawyer, and Decker Associates.
The Association opposed plaintiff's motion, supporting its opposition with
certifications from counsel and a counterstatement of material facts, including
Sections 3.01 and 3.02 of the Master Deed which described the boundaries of
and the items included in each unit. In the counterstatement of material facts,
the Association asserted:
A-3008-23 12 Stated simply, [plaintiff's] unit only includes the face (gy[]psum board) of the sheet rock only, not the entire sheet rock. The balance of the sheet rock, which [plaintiff] acknowledges was damaged in this matter is common area as are the firestops associated with same. Typical sheet rock consists of three parts: two paperboards that sandwich gypsum, a powdery white or gray material. Face; interior; Face. [Plaintiff's] unit includes only the paper faceboard adjacent to the interior of the unit. The gy[]psum and the backside of the paperboard are not part of her unit, but are common elements as are the life safety firestops that are part of installation of the sheetrock.
Although plaintiff's motion only addressed the Association's
counterclaim, the judge treated it as one for reconsideration of all orders issued
on February 3, 2023, and heard oral argument on June 2, 2023. Following oral
argument, the judge summarily denied reconsideration of the orders granting
summary judgment to the individual defendants and denied reconsideration on
the Association's counterclaim. The judge credited the Association's argument
that plaintiff had "not demonstrated any . . . basis for reconsideration" and issued
an order on June 13, 2023, memorializing that decision. The June 13, 2023 order
allowed the Association to enter plaintiff's unit "without notice" to inspect it and
restore common elements, and to do what was "reasonably necessary to access
the [u]nit for such purpose, including changing the lock."
A-3008-23 13 As to the other two February 3, 2023 orders dismissing plaintiff's
complaint against the Association, the judge granted reconsideration. However,
after further motion practice, the judge ultimately granted the Association
summary judgment and dismissed plaintiff's complaint in its entirety in an order
entered October 6, 2023. Just prior to the entry of the October 6, 2023 order,
the Association filed a motion "for an [o]rder permitting the Association to
complete construction of plaintiff's unit without [her] input," noting in counsel's
supporting certification that plaintiff "never responded" to the Association's
letters sent in accordance with the judge's June 13, 2023 order and had
"expressed on numerous occasions . . . that she intend[ed] to rip out any finishes
made by the Association." Plaintiff opposed the motion.
In a May 14, 2024 order,4 the judge granted the Association's motion,
stating:
Although plaintiff filed opposition, her papers are [non- ]responsive and mainly re-hash arguments that she previously made throughout the pendency of this matter which have been rejected by this court. Also, the court notes that plaintiff includes certain bizarre and irrational fears in her papers; to wit, she is concerned that the . . . Association will poison her with "killing chemicals" and that the . . . Association will install
4 The judge issued nine additional orders on May 14, 2024, adjudicating a litany of motions filed by plaintiff, all of which the judge denied as frivolous , unfounded, or repetitious. A-3008-23 14 hidden cameras and spy on her . . . . The reason that the court granted the Association the authority to complete repairs in . . . [p]laintiff's apartment regardless of her cooperation is due to potential public health issues which could endanger . . . [p]laintiff's neighbors who reside in attached units. This was a water damage/potential mold case.
Plaintiff subsequently filed an amended notice of appeal identifying the
February 3, 2023, June 2, 2023, and May 14, 2024 orders as the subjects of her
appeal.5 As previously stated, only consideration of the February 3, 2023 order
pertaining to the Association's counterclaim was properly preserved for appeal
and we deem all other issues abandoned, including challenging the denial of
reconsideration of the February 3, 2023 order. See Telebright Corp., 424 N.J.
Super. at 393.
II.
We review a trial court's summary judgment ruling "de novo under the
same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That standard is well-
settled.
[I]f the evidence of record—the pleadings, depositions, answers to interrogatories, and affidavits—"together with all legitimate inferences therefrom favoring the
5 Plaintiff also identified an October 13, 2023 order in the amended notice of appeal. However, no such order exists. A-3008-23 15 non-moving party, would require submission of the issue to the trier of fact," then the trial court must deny the motion. R. 4:46-2(c); see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On the other hand, when no genuine issue of material fact is at issue and the moving party is entitled to a judgment as a matter of law, summary judgment must be granted. R. 4:46-2(c); see Brill, 142 N.J. at 540.
[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016) (citation reformatted).]
Whether a genuine issue of material fact exists depends on "whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party in consideration of the applicable evidentiary
standard, are sufficient to permit a rational factfinder to resolve the alleged
disputed issue in favor of the non-moving party." Brill, 142 N.J. at 523.
However, "Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard mandates
that the opposing party do more than 'point[] to any fact in dispute' in order to
defeat summary judgment." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479
(2016) (alterations in original) (quoting Brill, 142 N.J. at 529).
Where there is no material fact in dispute, we "must then 'decide whether
the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007),
A-3008-23 16 overruled on other grounds by Wilson ex rel. Manzano v. City of New Jersey,
209 N.J. 558 (2012)). "We review issues of law de novo and accord no deference
to the trial judge's [legal] conclusions . . . ." MTK Food Servs., Inc. v. Sirius
Am. Ins. Co., 455 N.J. Super. 307, 312 (App. Div. 2018).
Plaintiff essentially argues the judge erred in granting the Association
summary judgment on its counterclaim because no common elements were
damaged by the flooding and she was thus entitled to the insurance proceeds
from PIIC to repair her unit. In support, she asserts that no "common elements"
as defined by the Master Deed and Bylaws were "stated on any estimates . . .
[as] damaged by the flood(s)." Therefore, she contends that the Association did
not have the right to repair her unit and had a "fiduciary duty to give the [PIIC]
insurance proceeds to [her]."
"The physical extent of [a unit] depends upon what has been included in
the common elements." Siller v. Hartz Mountain Assocs., 93 N.J. 370, 382
(1983). Whether an item is a common element "may be ascertained by
examination of the statutory definition and the master deed." Ibid. N.J.S.A.
46:8B-3(d) defines "common elements" for condominiums in New Jersey. That
definition includes:
as to any improvement, the foundations, structural and bearing parts, supports, main walls, roofs, basements,
A-3008-23 17 halls, corridors, lobbies, . . . and other means of access, excluding any specifically reserved or limited to a particular unit or group of units;
. . . all other elements of any improvement necessary or convenient to the existence, management, operation, maintenance and safety of the condominium property or normally in common use; and
. . . such other elements and facilities as are designated in the master deed as common elements.
[Ibid. (emphasis added).]
"[A]s a general matter the thrust of [N.J.S.A. 46:8B–3(d)] is to define
common elements in general as those elements existing or intended for common
use." Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 85 (App. Div.
2013) (quoting Soc'y Hill Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J.
Super. 163, 170 (App. Div. 2002)). We previously summarized the distinction
between a common element and a unit as follows:
One easy way to visualize a condominium unit is as a cube of air, the tangible boundaries of which are usually the finished side of the interior sheetrock, ceilings[,] and floors. While many condominiums vary this definition slightly (driven, in part, by allocating maintenance responsibilities), the condominium unit is generally seen by owners as the "inside" of their structure while the shell and "outside" of the building is a common element.
[Ibid. (quoting Soc'y Hill, 347 N.J. Super. at 172).]
A-3008-23 18 Our citation to the 1994 Uniform Common Interest Ownership Act's
definition of unit boundaries in Society Hill is also instructive:
Except as provided by the declaration:
(1) If walls, floors, or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements.
[Soc'y Hill, 347 N.J. Super. at 172 n.1 (quoting Unif. Common Int. Ownership Act § 2–102, 7 U.L.A. 65 (1994)).]
Section 3.01 of Article III of the Master Deed describes the boundaries of
each Crosspointe Condominium unit as follows:
Each [u]nit is intended to contain all space within the area bounded by the interior surface of the perimeter walls of each [u]nit and the lowermost floor and the uppermost ceiling of each [u]nit as follows:
BOTTOM: The bottom is an imaginary horizontal plane through the lowest point of the interior surface of each portion of subfloor, if any, within the [u]nit, and extending in every direction to the point where it closes with a side of such [u]nit.
TOP: The top is an imaginary horizontal plane along and coincident with the unfinished and unexposed upper surface of the gypsum board or other material which forms the uppermost ceiling of the [u]nit,
A-3008-23 19 extending in every direction to the point where it closes with every side of such [u]nit.
SIDES: The sides of each [u]nit are imaginary vertical planes along and coincident with the innermost surface of the studding of the perimeter walls. . . . The sides of each such [u]nit are bounded by the bottom and top of the [u]nit.
Section 4.01 defines the common elements as "[a]ll appurtenances and facilities
and other items which are not part of the [u]nits described in Article III,"
including "exterior or interior bearing or main walls and floors between
[u]nits."6
Section 7.01, which sets forth each unit owner's responsibilities, reads:
Each [u]nit [o]wner is responsible to perform all of the maintenance, repairs[,] and replacements that may be required within the boundaries of his own [u]nit, at his own expense, and in accordance with the requirements of this Master Deed and the [Bylaws] . . . .
In addition, each [u]nit [o]wner shall be responsible to perform all of the maintenance, repairs[,] and replacements that may be required for parts of his [u]nit which are not located within the boundaries of his [u]nit as set forth in Section 3.01 when the following conditions are met:
6 Section 1.14 provides that "'[g]eneral [c]ommon [e]lements' shall have the same meaning as '[c]ommon [e]lements' pursuant to N.J.S.A. 46:8B-3(d), except as same may be modified by the provisions of Article IV of th[e] Master Deed." A-3008-23 20 (i) the part of the [u]nit is accessible without a breaking or intrusion into the [c]ommon [e]lements or any other [u]nit; and
(ii) the part of the [u]nit is not functionally connected with a [c]ommon [e]lement or a component of an integrated system which services more than one [u]nit.
In turn, Sections 7.02 and 7.03 describe the Association's responsibilities
and rights. Section 7.02 provides that "[t]he Association shall . . . furnish the
maintenance, repairs[,] and replacements that are required for any part of a [u]nit
not located within the boundaries of the [u]nit as set forth in Section 3.01 herein
(except as otherwise provided in Section 7.01 herein) . . . ." Section 7.03
provides:
The Association may effect emergency repairs to any [u]nit which the [o]wner of that [u]nit has failed to perform . . . . The Association may also effect non- emergency repairs within the boundaries of a [u]nit which the [u]nit [o]wner has failed to perform . . . if (i) any such failure to maintain by the [u]nit [o]wner will have a material and adverse impact upon any other portion of the [c]ondominium and (ii) the [u]nit [o]wner(s) responsible for such . . . repair . . . have failed to remedy the situation within sixty . . . days after written notice is given by the Association to do so.
Relatedly, Section 8.03 reserves both a "perpetual exclusive easement" for
the Association to maintain "any [c]ommon [e]lements, including those which
presently or may hereafter encroach upon a [u]nit," and a "perpetual and non -
A-3008-23 21 exclusive right of access to each [u]nit (i) to inspect same, (ii) to remedy any
violations of the provisions of th[e] Master Deed[ or Bylaws] . . . , and (iii) to
perform any operations required in connection with the maintenance, repairs or
replacements of or to the [c]ommon [e]lements . . . ." See Restatement (First)
of Prop. § 493 cmt. c (A.L.I. 1944) ("An exclusive easement in gross is one
which gives the owner the sole privilege of making the uses authorized by it.").
Taken together, these provisions of the Master Deed establish that some
parts of each unit's perimeter walls lie outside the unit's boundaries, making it
solely the Association's responsibility to repair those portions. Only the interior-
facing surface of the sheetrock belongs to the unit itself; the remainder of the
sheetrock, including the material covering the outermost portions of the wall, is
considered a common element. It is also the Association's duty to make "non-
emergency repairs within the boundaries of a [u]nit," which the unit owner has
failed to perform after written notice, if the failure to repair will adversely
impact any other portion of the Condominium. This conclusion is dictated by
the Master Deed and accords with precedent addressing the topic. See Soc'y
Hill, 347 N.J. Super. at 172.
The Association submitted competent evidence to support its summary
judgment motion. In addition to relevant provisions of the Master Deed and
A-3008-23 22 Bylaws, Fazzaro certified that the January 11, 2020 flood caused "substantial"
damage "to the interior of plaintiff's unit" as well as "common elements of the
building" adjacent to plaintiff's unit. According to Fazzaro, after plaintiff's
contractor submitted a proposal that "did not include any of the work set forth
in the adjuster's estimate" and "failed to obtain the necessary permits from the
township," the Association was "prepared to implement the necessary repairs."
However, plaintiff "refused to allow the Association to make the required repairs
to the common elements, while her unit remain[ed] in an unsafe and dangerous
condition and create[d] a risk of further damage to common elements, the unit
itself and other units." The Association also submitted its contractor's estimate
showing that batt insulation and drywall needed to be replaced. These
submissions, which were unopposed by plaintiff, sufficed to establish that
common elements were damaged by the flood. We are also convinced that the
Association was entitled to make the necessary repairs in light of plaintiff's
recalcitrance and the risks posed by the unabated flood damage. See Claypotch
v. Heller, Inc., 360 N.J. Super. 472, 488-89 (App. Div. 2003) (noting that
unopposed statements of material fact are "deemed admitted" when "sufficiently
supported" by affidavits "made on personal knowledge" (first quoting R. 4:46-
2(b); and then quoting R. 1:6-6)).
A-3008-23 23 We also reject plaintiff's contention that the Association was obligated to
turn over the PIIC insurance proceeds to her rather than use it to perform the
repairs. Under Section 11.04 of the Master Deed, the Association was
authorized to utilize insurance proceeds from property loss that exceeded
$25,000 to repair damage to the common elements. Under Section 11.05,
insurance proceeds are only "made available" to unit owners when "damage is
only to those parts of a [u]nit for which the responsibility for maintenance and
repair is that of the [o]wner." As maintenance of common elements is not a unit
owner's responsibility under Section 7.02 and the insurance payment exceeded
$25,000, plaintiff had no right to the PIIC insurance proceeds. See Belmont
Condo. Ass'n, 432 N.J. Super. at 85. We therefore conclude that the judge
correctly granted partial summary judgment to the Association on its
counterclaim.7
Affirmed.
7 The judge found the summary judgment motion "meritorious on its face" and granted it "for the reasons set forth in the moving papers." Although "both Rule 1:7-4 and Rule 2:5-1(b) specifically state that the court 'shall' set forth the facts and make conclusions of law to support the order or judgment," we have held that "[t]he trial judge may satisfy the court rules by relying on the facts or reasons advanced by a party; however, the court is obligated to make the fact of such reliance 'explicit.'" Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 301 (App. Div. 2009) (citing Pressler, Current N.J. Court Rules, cmt. 1 on R. 1:7–4 (2009)). Here, we are satisfied the judge complied with the court rules. A-3008-23 24