NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0719-23
MARC D. SERRA,
Plaintiff-Appellant/ Cross-Respondent,
v.
MIDLAND REALTY ASSOCIATES, LLC,
Defendant-Respondent/ Cross-Appellant,
and
AFFILIATED MANAGEMENT, INC., and MICHAEL FINER,
Defendants-Respondents. _____________________________
Submitted May 14, 2025 – Decided August 1, 2025
Before Judges Rose, DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9152-18.
Marc D. Serra, appellant/cross-respondent pro se. Brach Eichler, LLC, attorneys for respondent/cross- appellant Midland Realty Associates, LLC and respondent Michael Finer (Andrew R. Macklin, of counsel and on the brief).
Tango, Dickinson, Lorenzo, McDermott & McGee, LLP, attorneys for respondent Affiliated Management, Inc. (Joao M. Sapata, on the brief).
PER CURIAM
Plaintiff Marc D. Serra, a self-represented attorney, appeals from: the
Law Division's March 10, 2023 summary judgment dismissal of his third
amended complaint against defendants Midland Realty Associates, LLC,
Affiliated Management, Inc., and Michael Finer; a June 28, 2023 order denying
reconsideration of summary judgment; and the April 14, 2023 orders denying
his motions to reopen discovery and disqualify one of two firms representing
defendants. Plaintiff also appeals from an October 20, 2023 order denying his
application to recuse the motion judge. Defendants cross-appeal from another
October 20, 2023 order denying their motion for sanctions against plaintiff. We
affirm all orders under review.
I. Pertinent Events
The facts underscoring plaintiff's action are straightforward and largely
undisputed; the procedural history is protracted and contentious. We chronicle
only those events pertinent to this appeal.
A-0719-23 2 The allegations asserted in plaintiff's third amended complaint arose from
his residential tenancy at the Midland Apartments in Montclair, a seventy-four-
unit building owned by Midland Realty and managed by Affiliated through its
property manager, Finer. Following motion practice spanning nearly two years,
not germane to this appeal, in October 2020, plaintiff filed a third amended
complaint against defendants asserting claims for: negligence (count one);
affirmative action rent abatement (count two); a violation of the New Jersey
Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210 (count three); trespass to
land (count four); trespass to chattels (count five); invasion of privacy (count
six); retaliatory eviction regarding defendant's summary dispossession action
(count seven); another CFA violation (count eight); and intentional inflection of
emotional distress (count nine).1 Plaintiff alleged, after Affiliated assumed
management of Midland Apartments in 2000, his apartment had a series of
"habitability" issues, including: reduction in hot water flow; flickering lights;
inadequate heat; sewage backups in his bathroom; an exterior slamming door; a
1 Before the motion judge and this court, two law firms have represented defendants on different counts of plaintiff's third amended complaint. Tango, Dickinson, Lorenzo, McDermott & McGee, LLP has represented defendants on counts one, four, five, and seven; Brach Eichler LLC has represented defendants on counts two, three, six, eight, and nine.
A-0719-23 3 noisy upstairs neighbor; and elevator issues. Plaintiff also claimed Finer entered
his apartment without his permission in January 2019, and defendants filed
"fabricated" late fees on his rent payments.
One year after he filed his third amended complaint, in November 2021,
plaintiff moved to join Peapack Gladstone Bank as a necessary party.
Defendants then served plaintiff with a Rule 1:4-8 letter, asserting his third
amended complaint and motion practice were frivolous. Discovery ended on
December 27, 2021. Shortly thereafter, the motion judge denied plaintiff's
application to add the bank as a defendant. Plaintiff moved for reconsideration
and sought to extend discovery. Defendants served plaintiffs with another Rule
1:4-8 letter, asserting plaintiff's application was frivolous. The motion judge
denied plaintiff's application.
In August 2022, the parties attended nonbinding arbitration. That same
day, the arbitrator entered a no cause of action award in favor of defendants.
The following month, plaintiff served Alan Hammer, Esq., a member of
Brach Eichler and owner of Midland Apartments, with a subpoena to testify at
deposition. Plaintiff also served defense expert, George J. Carnevale, Ph.D.,
with a subpoena duces tecum. Defendants moved to quash the subpoenas and
for attorney's fees in October 2022.
A-0719-23 4 In January 2023, Brach Eichler moved for partial summary judgment on
behalf of defendants as to counts two, three, six, eight, and nine of plaintiff's
third amended complaint. Tango Dickinson moved for partial summary
judgment on behalf of defendants as to counts one, four, five, and seven .
Following argument on January 20, 2023, the motion judge issued an oral
decision, granting defendants' motions to quash the subpoenas served on
Hammer and Carnevale. We denied plaintiff's motion for leave to appeal from
the memorializing order. Serra v. Midland Realty Assocs., LLC, No. 2943-22
(App. Div. Mar. 6, 2023).
On March 8, 2023, two days before the return date on defendants'
summary judgment motions, and less than two months before the April 24, 2023
trial date, plaintiff moved to reopen discovery and disqualify Brach Eichler from
further representation. Asserting Hammer was a potential witness in this matter,
plaintiff claimed he had "no reason to know that a partner at Brach Eichler was
also a party to this litigation" and, as such, plaintiff "did not make any requests
of Mr. Hammer during the discovery period." Plaintiff argued he was "entitled"
to paper discovery and deposition testimony from Hammer regarding his
communications related to Midland Apartments.
A-0719-23 5 Following argument on March 10, 2023, the judge issued an oral decision
granting defendants' summary judgment motions. In her decision, the judge
considered plaintiff's counterstatement of facts to both summary judgment
motions. Because plaintiff's brief in opposition to Brach Eichler's motion was
not filed until 10:40 p.m. on March 9, 2023 – when oral argument was scheduled
the next morning at 9:30 a.m. – the judge did not consider plaintiff's submission.
The judge first addressed Brach Eichler's summary judgment motion. For
count two, affirmative action for rent abatement, the judge found the record was
devoid of any evidence showing plaintiff "gave defendants notice and
reasonable time to correct the defect." The judge found "plaintiff admitted he
did not complain to defendants about many of the issues and refused to let
defendants place a heat sensor in his apartment." The judge further determined
"the issues pertaining to the 2007 sewage backup . . . were settled through a
Marini2 hearing," and as such, were barred under the entire controversy doctrine.
Regarding counts three and eight, violations of the CFA, the judge found
defendants were entitled to summary judgment because "[t]here [wa]s nothing
2 Marini v. Ireland, 56 N.J. 130 (1970). In a summary dispossess action "[a] tenant may raise lack of habitability claims . . . and obtain a Marini hearing, provided the tenant deposits the rent with the Clerk of Court." Daoud v. Mohammad, 402 N.J. Super. 57, 59 (App. Div. 2008) (citing Marini, 56 N.J. at 147). A-0719-23 6 in the record to support unlawful business practices on behalf of the
defendant[s], or ascertainable damages suffered by plaintiff."
As to count six, the judge did not "find any invasion of privacy that would
be highly offensive to a reasonable person." On the contrary, the judge found
defendants notified plaintiff entry into his apartment was required for
reinspection, and the photographs Finer took "display[ed] plaintiff's windows
and nothing more." The judge found "[c]onsidering that plaintiff had been
complaining about heat in his apartment," Finer's conduct did not constitute "a
highly offensive intrusion."
As to count nine, the judge found plaintiff failed to "produce any evidence
of emotional distress" inflicted by defendants. Further, the judge noted plaintiff
was treated by one medical provider who opined plaintiff's symptoms "should
resolve within six months of the cessation of issues with the door slamming ."
The judge also found "no showing of extreme and outrageous conduct" or "any
malice or wanton disregard" by defendants.
The judge next considered Tango Dickinson's summary judgment motion.
The judge found defendants were entitled to summary judgment on count one,
negligence, because plaintiff failed to provide an expert report regarding "the
proper maintenance and operation of the exterior . . . slamming door," which the
A-0719-23 7 court determined was "beyond the ken of the average juror." Finding the
absence of an expert report and any other evidence in the record "indicat[ing]
there was negligence in this regard" the judge determined plaintiff failed to
establish a prima facie negligence claim.
As to count four, trespass to land regarding Finer's January 2019 entry
into plaintiff's apartment, the judge cited N.J.A.C. 5:10-5.1, which permits a
landlord to "enter a tenant's residence without the tenant's consent for the limited
purpose of maintenance, inspection and repair, upon giving reasonable notice ."
Citing the record, the judge found "plaintiff received three days' notice" of the
landlord's entry "and did not object." Moreover, the judge found "[p]laintiff
d[id] not dispute that he received the notice and that he failed to object ."
The judge found defendants were entitled to summary judgment on count
five, trespass to chattels. The judge was persuaded plaintiff "failed to show any
evidence that his property was taken, damaged, or rendered unusable by the
entry of defendants into his unit."
Lastly, as to count seven, the judge was not persuaded plaintiff established
a retaliatory eviction following defendants' August 2019 summary dispossession
action as the record reveals the action "was filed only after plaintiff's rent and
late fees were unpaid for a series of months, and was immediately dismissed
A-0719-23 8 upon receipt of payment." The judge thus found defendants rebutted the
statutory presumption of retaliation because "the proceeding commenced
independently of any consideration of the protected activity."
On March 30, 2023, plaintiff moved for reconsideration of the March 10,
2023 summary judgment orders, and defendants moved for sanctions pursuant
to Rule 1:4-8 and N.J.S.A. 2A:15-59.1, attorney's fees, and costs.
On April 14, 2023, the judge denied plaintiff's motions to reopen
discovery and disqualify Brach Eichler. The judge noted the third amended
complaint was dismissed on summary judgment on March 10, 2023, and
plaintiff's "motion to reopen and extend discovery and for other relief was filed
on March 8, 2023, after the close of discovery."
On June 28, 2023, the judge issued an order denying plaintiff's motion for
reconsideration accompanied by a written statement of reasons.3 The judge
reasoned:
Plaintiff cites case law and, in many circumstances, fails to provide adequate case law, stating extraordinary circumstances are found in limited situations in which such circumstances can be found. Courts have rejected arguments that have as
3 The judge's decision primarily addresses plaintiff's motion to reconsider the March 10, 2023 orders granting summary judgment. In her decision, the judge also reiterated her April 14, 2023 decision denying plaintiff's motion to disqualify Brach Eichler. A-0719-23 9 their foundation carelessness, lack of circumspection, lack of diligence, or ignorance of the law. . . . Plaintiff was given eight extensions for discovery, had five arbitration adjournments, and violated two subpoena orders. The actual discovery process spanned well over 1,000 days. In opposition, . . . [d]efendants correctly state the original [s]ummary [j]udgment standard was correct as there was no genuine issue as to any material fact. Additionally, [d]efendants correctly assert that [p]laintiff has not presented any new relevant cases or evidence which would prompt reconsideration; the [c]ourt considered all these arguments at oral argument and did not make any arbitrary decisions about [s]ummary [j]udgment.
Plaintiff appealed from the orders issued on March 10, 2023 and June 28,
2023. We granted defendants' ensuing motion to dismiss the appeal without
prejudice to afford the motion judge an opportunity to address defendants' then
pending motion for sanctions.
In September 2023, plaintiff moved to strike defendants' motion for
sanctions and recuse the motion judge. After conducting oral argument on
October 20, 2023, the judge denied both motions. This appeal and cross-appeal
followed.
II. Summary Judgment
In his merits brief, plaintiff primarily challenges the motion judge's
summary judgment dismissal of his third amended complaint. In the subpoints
of his first argument, plaintiff argues the motion judge erroneously dismissed
A-0719-23 10 the following claims: (A) CFA; (B) negligence; (C) trespass; (D) invasion of
privacy; (E) retaliatory eviction; and (F) affirmative rent abatement. We address
plaintiff's contentions seriatim.
We first address plaintiff's challenges to the summary judgment dismissal
of his third amended complaint governed by our de novo standard of review.
See Conforti v. Cnty. of Ocean, 255 N.J. 142, 162 (2023). Employing the same
standard as the motion court, we review the record to determine whether there
are material factual disputes and, if not, whether the undisputed facts viewed in
the light most favorable to plaintiff, as the non-moving party, nonetheless entitle
defendants to judgment as a matter of law. See Samolyk v. Berthe, 251 N.J. 73,
78 (2022); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see
also R. 4:46-2(c). "[C]onclusory and self-serving assertions by one of the parties
are insufficient to overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-
41 (2005). We owe no deference to the court's legal analysis or interpretation
of a statute. Palisades at Fort Lee Condo. Ass'n v. 100 Old Palisade, LLC, 230
N.J. 427, 442 (2017).
A. CFA Claims
In his third amended complaint, plaintiff asserted two counts of CFA
violations. In count three, plaintiff alleged defendants violated the CFA by
A-0719-23 11 "fail[ing] to disclose or correct serious, ongoing problems with their residential
building and have engaged in false, unfair and deceptive business practices all
to [his] financial detriment." In count eight, plaintiff claimed defendants further
violated the CFA by obligating plaintiff to retain counsel to address "fraudulent"
late fees in connection with the June 2017 settlement and that they "filed a
baseless summary dispossess action" against him in 2019.
"The CFA provides a remedy for any consumer who has suffered an
ascertainable loss of moneys or property as a result of an unlawful commercial
practice and allows him or her to recover treble damages, costs, and attorneys[']
fees." Heyert v. Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013). "To fully
advance the [CFA]'s remedial purposes, courts construe its provisions broadly
and liberally in favor of consumers." Ibid.
"It is well-established that the broad scope of the CFA encompasses
transactions between residential tenants and their landlords" and "[i]n such
situations, the landlords are considered to be 'sellers' and the tenants to be
'consumers.'" Id. at 413; 49 Prospect St. Tenants Ass'n v. Sheva Gardens, Inc.,
227 N.J. Super. 449, 464-65 (App. Div. 1988). However, "the [CFA] will only
apply to extreme conduct of landlords sufficient to meet the condemned
A-0719-23 12 commercial practices set forth in N.J.S.A. 56:8-2." 49 Prospect St. Tenants
Ass'n, 227 N.J. Super. at 469.
To support a CFA claim, "a consumer must allege three elements:
unlawful conduct; an ascertainable loss; and a causal relationship between the
unlawful conduct and the ascertainable loss." Heyert, 431 N.J. Super. at 412.
"Unlawful practices fall into three general categories: affirmative acts, knowing
omissions, and violations of regulations promulgated pursuant to the statute."
Ibid. "Under N.J.S.A. 56:8-2, 'affirmative acts' are defined as 'unlawful
practices that include unconscionable commercial practices, fraud, deception,
false promise, false pretense, and misrepresentation.'" Ibid. (quoting
Thiedemann v. Mercedes-Benz USA, 183 N.J. 234, 245 (2005)); see also Robey
v. SPARC Grp. LLC, 256 N.J. 541, 555 (2024).
"[T]he term 'ascertainable loss'" under the CFA "means th[e] plaintiff
must suffer a definite, certain and measurable loss, rather than one that is merely
theoretical." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 558 (2009). "A
plaintiff can establish an ascertainable loss by demonstrating either an out-of-
pocket loss or a deprivation of the benefit of one's bargain." Robey, 256 N.J. at
548. Ascertainable loss "must be presented with some certainty demonstrating
A-0719-23 13 that it is capable of calculation, although it need not be demonstrated in all its
particularity to avoid summary judgment." Thiedemann, 183 N.J. at 248.
In the present matter, plaintiff failed to demonstrate defendants engaged
in an unlawful practice under the CFA or that he sustained an ascertainable loss
with any degree of certainty. Notwithstanding plaintiff's assertion defendants
failed to disclose or correct ongoing problems, the record shows defendants
endeavored to fix the building's issues. For example, Finer testified defendants
replaced the boiler in 2018 and offered to place a heat sensor in plaintiff's
apartment when he continued to have issues. But plaintiff refused defendants'
offer.
Further, at deposition, plaintiff acknowledged: defendants promptly
cleaned the sewage issues to his satisfaction; defendants installed a new elevator
remedying the issues plaintiff previously experienced; and the door slamming
issue improved. Accordingly, the unrefuted evidence in the motion record
demonstrates defendants promptly remedied the issues cited by plaintiff. And
there is no evidence to suggest defendants affirmatively acted to commit any
deceptive, unconscionable, or fraudulent practices regarding the habitability of
plaintiff's apartment. See id. at 245; N.J.S.A. 56:8-2.
A-0719-23 14 The CFA claims raised in plaintiff's eighth count similarly fail. Although
plaintiff asserted defendants engaged in unlawful practices by forcing him to
retain Michael Wiseberg, Esq. to enforce the June 2017 settlement, when
deposed, plaintiff stated he did not execute a retainer agreement with Wiseberg.
Rather, their agreement "was done informally." Further, after Wiseberg called
Affiliated, the late fees were removed from plaintiff's statement, demonstrating
no unlawful practice by defendants under the CFA.
Regarding the August 2019 summary dispossession action, plaintiff
acknowledged he contacted his bank and was advised his June 2019 rent check
never cleared his account. As such, defendants did not receive his rent payment.
Plaintiff's lease clearly states rent is deemed "late" if not received by the fifth of
the month and late fees may be assessed if payment is not received by the tenth.
Defendants sent plaintiff correspondence indicating they did not receive the rent
and would institute a summary dispossession action on August 7, 2019, several
weeks after the June 2019 rent was due. After plaintiff paid the June 2019 rent,
defendants withdrew their lawsuit. Because defendants instituted the August
2019 action to obtain rent – which plaintiff acknowledged defendants did not
receive – defendants did not engage in an unlawful or fraudulent practice. The
A-0719-23 15 record indicates defendants instituted the 2017 and 2019 actions in good faith
and plaintiff thus fails to show unlawful conduct under the CFA. See id. at 245.
Moreover, even if plaintiff could demonstrate an unlawful practice under
the third or eighth counts of his complaint, he failed to demonstrate an
ascertainable loss. Plaintiff's general allegation there was a diminution in value
of his apartment finds no support in the record. See id. at 244. Similarly,
plaintiff acknowledged he did not know how much money he paid Wiseberg
regarding the June 2017 settlement. Accordingly, plaintiff's damages on both
counts are purely "theoretical" and cannot pass muster under summary
judgment. See Bosland, 197 N.J. at 558; Thiedemann, 183 N.J. at 249 (holding
"by the time of a summary judgment motion, it is the plaintiff's obligation to be
able to make such a demonstration [of ascertainable loss] or risk dismissal of
the cause").
B. Negligence
In count one, plaintiff asserted "[d]efendants . . . negligently, carelessly
and with palpable unreasonableness owned, maintained, repaired the heavy,
metal door to the basement at The Midland Apartments in such a way as to cause
[p]laintiff . . . to become injured as the result of the hazardous, dangerous and
A-0719-23 16 unreasonable condition." As the motion judge found, however, plaintiff's
allegations about the "slamming door" were unsupported.
To prevail on a negligence claim, a plaintiff must prove "(1) a duty of
care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages."
Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cnty. of Essex,
196 N.J. 569, 584 (2008)). The plaintiff must establish each element by
"competent proof." Ibid. (quoting Davis v. Brickman Landscaping, Ltd., 219
N.J. 395, 406 (2014)).
"Competent proof of negligence sometimes may include expert
testimony," Jacobs v. Jersey Cent. Power & Light Co., 452 N.J. Super. 494, 504
(App. Div. 2017), and its necessity "is determined by the sound exercise of
discretion by the trial judge," Maison v. N.J. Transit Corp., 460 N.J. Super. 222,
232 (App. Div. 2019). "[W]hen deciding whether expert testimony is necessary,
a court properly considers 'whether the matter to be dealt with is so esoteric that
jurors of common judgment and experience cannot form valid judgment as to
whether the conduct of the [defendant] was reasonable.'" Davis, 219 N.J. at 407
(second alteration in original) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270,
283 (1982)); see also N.J.R.E. 702.
A-0719-23 17 Relevant here, our courts have required expert testimony in negligence
cases involving alleged technical or specialized matters to avoid jury
speculation. See Gore v. Otis Elevator Co., 335 N.J. Super. 296, 302-04 (App.
Div. 2000) (requiring expert testimony as to whether the alleged improper
maintenance of an elevator door caused the door to malfunction); Ford Motor
Credit Co. v. Mendola, 427 N.J. Super. 226, 236-37 (App. Div. 2012) (requiring
expert testimony regarding the inspection and repair of an automobile engine).
As landlord, defendants owed plaintiff a duty "to exercise reasonable care
to guard against foreseeable dangers arising from use of those portions of the
rental property over which the landlord retains control." J.H. v. R&M
Tagliareni, LLC, 239 N.J. 198, 218 (2019) (quoting Scully v. Fitzgerald, 179
N.J. 114, 121-22 (2004)). That duty requires defendants to "maintain that
property in a reasonably safe condition," ibid., and to "maintain and repair those
facilities in or out of the tenant's premises which are an integral part of the
equipment under his [or her] control." Dwyer v. Skyline Apartments, Inc., 123
N.J. Super. 48, 52 (App. Div.), aff'd, 63 N.J. 577 (1973).
In the present matter, plaintiff cannot demonstrate a prima facie case of
negligence absent expert testimony. Plaintiff did not allege he was physically
injured by the exterior slamming door to the basement apartment complex.
A-0719-23 18 Rather, plaintiff claimed defendants failed to properly maintain the door,
causing him sleeplessness and anxiety from the resulting noise. Although the
opening and closure of a door is within a jury's common knowledge, whether
the door made a loud noise when it closed does not necessarily demonstrate the
door malfunctioned or was negligently maintained. Information regarding the
proper maintenance procedures and closing mechanism of the door was
necessary to demonstrate defendants' negligence. Because such information
involves complexity, it is beyond the common knowledge of the average juror,
see Ford Motor Credit Co., 427 N.J. Super. at 239. Absent expert testimony, the
jury could only speculate about the door's maintenance procedures and closing
mechanism. See Davis, 219 N.J. at 407. We conclude, without expert testimony
plaintiff did not demonstrate defendants "fail[ed] to service, correct or abate the
loud noise emanating from the heavy, steel door for a period of many years," as
he maintains on appeal.
Moreover, plaintiff failed to show he suffered actual damages stemming
from the slamming door. Our Supreme Court has long recognized a plaintiff
asserting a negligence claim must demonstrate actual damages "that are real and
substantial as opposed to speculative." Grunwald v. Bronkesh, 131 N.J. 483,
495 (1993). Notwithstanding his allegation defendants' failure to maintain the
A-0719-23 19 door caused "anxiety and sleeplessness," plaintiff acknowledged at deposition
he was not diagnosed with anxiety by a medical professional and the door
slamming issue improved in recent years. Plaintiff's admissions underscore his
damages were "speculative" rather than "real and substantial." See ibid.
C. Trespass
In his third amended complaint, plaintiff asserted two trespass claims:
trespass to land, pled in count four, alleging Finer entered his apartment in
January 2019; and trespass to chattels, pled in count five, asserting Finer moved
plaintiff's belongings when he entered the apartment. In his merits brief,
however, plaintiff only challenges the judge's decision on count four. "An issue
not briefed on appeal is deemed waived." Woodlands Cmty. Ass'n v. Mitchell,
450 N.J. Super. 310, 319 (App Div. 2017) (quoting Sklodowsky v. Lushis, 417
N.J. Super. 648, 657 (App. Div. 2011)); see also Pressler and Verniero, Current
N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025). We therefore consider only
plaintiff's claim trespass to land claim.
Pertinent to this appeal, "[a]ny multi-dwelling building containing three
or more apartments is subject to the Hotel and Multiple Dwelling Law[, N.J.S.A.
55:13A-1 to -28,] and its Regulations for Maintenance of Hotels and Multiple
Dwellings[,] N.J.A.C. 5:10-1.1 to -29:1." J.H., 239 N.J. at 211-12. Pursuant to
A-0719-23 20 N.J.A.C. 5:10-5.1(c), occupants of such multi-dwelling buildings "shall give the
owner thereof or [its] agent or employees access to any part of the unit of
dwelling space upon reasonable notification . . . [to make] such inspection and
such repairs or alterations as are necessary to effect compliance with the
[governing] law." Indeed, "[a] landlord typically has the right to access a
tenant's apartment under certain circumstances – for example, to make repairs
and conduct inspections – provided the landlord gives reasonable notice." State
v. Wright, 221 N.J. 456, 475-76 (2015).
Moreover, in this matter, plaintiff's lease agreement provided the tenant
"shall permit the [l]andlord or its agents or employees to enter the premises at
any reasonable hour for the purpose of exterminating insects or vermin, and to
allow the [l]andlord to take all materials into the premises that may be required"
and that "[t]he landlord shall be entitled to keys to all locks to the apartment
entrance door."
With these principles in view, we discern no error in the motion judge's
conclusion plaintiff failed to establish a prima facie trespass claim. The
unrefuted evidence in the record establishes Finer entered plaintiff's apartment
to make repairs following reasonable notification. In his January 7, 2019 letter
to the building's tenants, including plaintiff, Finer specifically stated he would
A-0719-23 21 enter the apartments on January 10, 2019 to ensure the repairs were made to
remedy prior violations issued by the Department of Community Affairs.
Further, in his correspondence, Finer advised the tenants if they were not home,
permission to enter would be assumed.
Nor are we persuaded plaintiff did not receive notice of Finer's planned
entry. At deposition, plaintiff acknowledged Joy Brandt, the "resident manager"
of the building, told him about the January 2019 reinspection and he gave her
permission to enter the apartment. Although Finer, not Brandt, entered his
apartment, plaintiff acknowledged he received reasonable notice defendants
would enter his apartment to inspect repairs to ensure "compliance with the law."
See N.J.A.C. 5:10-5.1(c). We conclude Finer "was lawfully on the premises"
and, as such, plaintiff failed to demonstrate a prima facie trespass to land claim.
See Mesgleski v. Oraboni, 330 N.J. Super. 10, 28 (App. Div. 2000).
D. Invasion of Privacy
In the sixth count of his third amended complaint, plaintiff claimed Finer
invaded his privacy by photographing his apartment when he entered on January
10, 2019. Finer certified: "During the inspection on January 10, 2019, of
[p]laintiff's apartment, I took three . . . photographs of the interior of the
apartment." These photographs depicted the windows by plaintiff's desk.
A-0719-23 22 To establish a prima facie case of invasion of privacy by an unreasonable
intrusion upon the seclusion of another, see Rumbauskas v. Cantor, 138 N.J.
173, 180 (1994), a plaintiff must demonstrate an intentional intrusion into the
solitude, seclusion, or private affairs of another that is highly offensive to a
reasonable person, Kinsella v. Welch, 362 N.J. Super. 143, 156 (App. Div.
2003). See also Restatement (Second) of Torts § 652B (Am. L. Inst. 1977).
"The thrust of this aspect of the tort is . . . that a person's private, personal affairs
should not be pried into." Bisbee v. John C. Conover Agency, Inc., 186 N.J.
Super. 335, 340 (App. Div. 1982). The interference with plaintiff's seclusion
must be "a substantial one." Restatement (Second) of Torts § 652B cmt. d.
Whether an intrusion is highly offensive to a reasonable person "turns on one's
reasonable expectation of privacy" which is "established by general social
norms." White v. White, 344 N.J. Super. 211, 222-23 (Ch. Div. 2001) (quoting
State v. Hempele, 120 N.J. 182, 200 (1990)).
Here, although plaintiff was entitled to solitude and seclusion in his home,
Finer was authorized by law and under the parties' lease agreement to enter
plaintiff's apartment and, as such, he did not intentionally intrude into plaintiff's
home. See Kinsella, 362 N.J. Super. at 156. Nor did the photographs include
plaintiff's personal effects but rather, as the motion judge found, "display[ed]
A-0719-23 23 plaintiff's windows and nothing more." See Bisbee, 186 N.J. Super. at 340
(holding a newspaper's publishing of a photograph of the plaintiff's house "taken
from the street" that "merely represented a view which [wa]s available to any
bystander" did not constitute an intrusion that would be highly offensive to a
reasonable person).
E. Retaliatory Eviction
In his seventh count, plaintiff alleged defendants violated N.J.S.A. 2A:42-
10.10 by "maliciously fil[ing] a baseless summary dispossess action" in
retaliation for his present lawsuit. As the motion judge found, however, plaintiff
failed to establish defendants' August 2019 summary dispossession action was
filed in retaliation. Plaintiff also failed to demonstrate damages.
N.J.S.A. 2A:42-10.12 "create[s] a rebuttable presumption" of retaliation
if a landlord institutes an action against a tenant after the tenant engages in any
activity described in the statute, including the tenant's "attempts to secure or
enforce any rights under the lease or contract, or under the laws of the State of
New Jersey, or its governmental subdivisions." We have recognized a "landlord
can overcome this presumption only by showing that the eviction proceeding
was commenced independently of any consideration of protected activities the
tenant may have engaged in." Les Gertrude Assocs. v. Walko, 262 N.J. Super.
A-0719-23 24 544, 550 (App. Div. 1993); see also Fromet Props., Inc. v. Buel, 294 N.J. Super.
601, 618 (App. Div. 1996) (holding the presumption is rebutted "when the
landlord demonstrates a non-retaliatory motive"). To preserve a claim under the
N.J.S.A. 2A:42-10.10, a plaintiff must also prove he or she suffered damages
resulting from the landlord's retaliation. See Onderdonk v. Presbyterian Homes
of N.J., 85 N.J. 171, 191 (1981) (holding plaintiff's claim under N.J.S.A. 2A:42-
10.10 could not be sustained for his failure to prove damages).
Plaintiff alleged he first advised defendants of his habitability issues in
the early 2000s. Nearly two decades later – and more than eight months before
defendants filed their August 2019 summary dispossession action – plaintiff
filed his initial complaint in December 2018. Accordingly, the record is devoid
of any temporal connection that defendants retaliated against plaintiff for
engaging in a protected activity. Instead, the competent evidence in the motion
record reveals defendants filed their summary dispossession action after
plaintiff failed to pay rent and defendants dismissed their lawsuit upon receipt
of plaintiff's June 2019 rent payment. Because defendants' "proceeding was
commenced independently of any consideration of protected activities the tenant
may have engaged in," Les Gertrude Assocs., 262 N.J. Super. at 550, defendants
rebutted the presumption they retaliated against plaintiff. Moreover, plaintiff
A-0719-23 25 failed to produce any evidence he suffered damages resulting from defendants'
alleged retaliation. See Onderdonk, 85 N.J. at 191.
F. Affirmative Rent Abatement
Plaintiff argues the motion judge erroneously granted summary judgment
on his rent abatement claim by maintaining defendants breached the covenant
of habitability by failing to provide plaintiff "water, hot water, electricity, heat,
elevator service[,] or quiet enjoyment of his unit" notwithstanding plaintiff's
"repeated, proper notice." We disagree.
A residential lease carries an implied warranty or covenant of habitability.
See Marini, 56 N.J. at 144. "A lessor becomes liable to a lessee for any breach
of this covenant." Berzito v. Gambino, 63 N.J. 460, 467 (1973).
[A] tenant may initiate an action against his [or her] landlord to recover either part or all of a deposit paid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the term, where he [or she] alleges that the lessor has broken [its] covenant to maintain the premises in a habitable condition.
[Id. at 469.]
"In such an action, if the alleged breach on the part of the landlord is proven,
the tenant will be charged only with the reasonable rental value of the property
in its imperfect condition during his period of occupancy." Ibid.
A-0719-23 26 "As a prerequisite to maintaining such a suit, the tenant must give the
landlord positive and seasonable notice of the alleged defect, must request its
correction and must allow the landlord a reasonable period of time to effect the
repair or replacement." Ibid. However, "[n]ot every defect or inconvenience
will be deemed to constitute a breach of the covenant of habitability." Ibid.
"The condition complained of must be such as truly to render the premises
uninhabitable in the eyes of a reasonable person." Ibid.
At the outset, plaintiff admitted at deposition he failed to notify
defendants of certain issues, such as those concerning his electricity and the
building's elevator. Further, plaintiff's hot water issue was more akin to an
inconvenience than a habitability issue. Finer testified the water "sometimes"
was shut off "for an hour or two" when other units in the building were
renovated. In addition, plaintiff acknowledged defendants promptly remedied
the sewage problems to his satisfaction following each backup. These issues
did not "render the premises uninhabitable in the eyes of a reasonable person."
See ibid.
Moreover, as the motion judge found, plaintiff's attempt to cite the 2007
sewage backup as a basis for his breach of the covenant of habitability claim
was barred by the entire controversy doctrine because the parties settled any
A-0719-23 27 damages regarding that backup following a Marini hearing. See Bank Leumi
U.S.A. v. Kloss, 243 N.J. 218, 226 (2020) (requiring a plaintiff assert all claims
"arise from related facts or the same transaction or series of transactions" in the
same action (quoting Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,
Hyman and Stahl, P.C., 237 N.J. 91, 119 (2019))).
Nor are we persuaded plaintiff's complaints about the lack of heat in his
apartment demonstrated defendants breached the covenant of habitability.
Plaintiff complained about the lack of heat and defendants remedied the issue
by installing a new boiler in 2018. Finer testified when plaintiff's complaints
persisted, defendants moved the heat sensors until the heating was adequate
throughout the building's apartments. Although plaintiff claimed the heating
issues continued, defendants refuted plaintiff's allegations by producing the
boiler system's sensory history reports. Those reports revealed the average
temperatures in the building ranged from seventy to seventy-three degrees
Fahrenheit throughout the day and night on several dates in 2018, 2019 and
2020.
Moreover, plaintiff acknowledged defendants offered to place a heat
sensor in his apartment. The record reveals plaintiff refused. Further, Finer's
photographs depicted plaintiff's open apartment window in January 2019.
A-0719-23 28 Accordingly, in some ways, plaintiff became "responsible for the defective
condition" by failing to allow defendants to fully remedy the situation
complained of. See Berzito, 63 N.J. at 470.
III. Motions to Reopen Discovery and Disqualify Brach Eichler
In his second point, plaintiff contends the motion judge erroneously
denied his applications to reopen discovery and disqualify Brach Eichler from
representing defendants. We are unpersuaded.
A. Motion to Reopen Discovery
Plaintiff reprises his argument he was unaware, within the discovery
period, Hammer was a potential witness in this case. Plaintiff argues he had
"good cause" to reopen discovery. We have considered plaintiff's contentions
in view of our deferential standard of review for discovery matters, Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011), and conclude they
lack sufficient merit to warrant discussion in a written opinion, R. 2:11-
3(e)(1)(E), beyond the comments that follow.
Plaintiff misapprehends the legal standard governing motions to reopen
discovery and his contentions are belied by the record. Pursuant to Rule 4:24-
1(c), a moving party must establish "exceptional circumstances" – not good
cause as plaintiff argues – to extend the discovery period "after an arbitration or
A-0719-23 29 trial date is fixed." To demonstrate exceptional circumstances, the movant's
certification must detail facts demonstrating the reasons for the application
"were beyond the reasonable control of the party seeking relief." Rivers v. LSC
P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005) (quoting O'Donnell v. Ahmed,
363 N.J. Super. 44, 52 (Law Div. 2003)). Examples of exceptional
circumstances include "death of a family member, death or health problems of
a key witness, or a personal sudden health problem." Ibid.
In her January 20, 2023 decision granting granted defendants' application
to quash Hammer's subpoena, the motion judge found Hammer "was known to
plaintiff a year and a half before the end of discovery." In her May 12, 2020
deposition, Brandt identified Hammer as one of the owners of Midland Realty.
After various extensions and more than 1000 days of discovery, the discovery
period ended on December 27, 2021. Plaintiff did not move to reopen discovery
until March 8, 2023, less than two months before the April 24, 2023 trial date.
On this record, we conclude the motion judge properly denied plaintiff's motion.
Plaintiff failed to establish exceptional circumstances to support his application.
A-0719-23 30 B. Motion to Disqualify Brach Eichler
Plaintiff further contends Brach Eichler was conflicted from representing
defendants because Hammer, a member of Brach Eichler, could have been called
as a witness in this matter. Plaintiff's contentions are unavailing.
We review de novo a trial court's decision on a motion to disqualify
counsel. See City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010). RPC 3.7(a)
provides "[a] lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness" absent certain exceptions. RPC 3.7(b) provides
"[a] lawyer may act as advocate in a trial in which another lawyer in the lawyer's
firm is likely to be called as a witness unless precluded from doing so by RPC
1.7 or RPC 1.9." "RPC 3.7 is a rule addressed only to a lawyer acting as an
advocate at trial." Escobar v. Mazie, 460 N.J. Super. 520, 527 (App. Div. 2019).
"As the burden of establishing disqualification is on the movant . . . it will be
for plaintiff to establish that specific . . . lawyers will be necessary witnesses at
trial." Id. at 529.
Although Hammer was a partner at Brach Eichler and could have been a
potential witness had plaintiff's action survived summary judgment, he was not
defendants' designated trial counsel. Accordingly, Brach Eichler was not
disqualified from its representation of defendants solely because one of its
A-0719-23 31 members could have been a witness at trial. See RPC 3.7(b). Further, plaintiff
presented no evidence establishing Hammer necessarily would have been a trial
witness. See Escobar, 460 N.J. Super. at 529. We therefore discern no basis to
disturb the order denying plaintiff's motion.
IV. Reconsideration
Little need be said regarding plaintiff's argument that the judge
erroneously denied his motion to reconsider the orders granting summary
judgment to defendants. In her decision, the judge concluded plaintiff failed to
meet the standard for reconsideration. See Palombi v. Palombi, 414 N.J. Super.
274, 288 (App. Div. 2010) (recognizing reconsideration "is not appropriate
merely because a litigant is dissatisfied with a decision of the court or wishes to
reargue a motion").
As the motion judge found, plaintiff failed to satisfy the standard for
reconsideration by identifying any new evidence or information the court
overlooked or explaining why the judge's conclusions were palpably incorrect.
See Cap. Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310
(App. Div. 2008). Contrary to plaintiff's argument on appeal, our review of the
record reveals the judge considered plaintiff's contentions in view of all
competent evidence in the motion record. Governed by our discretionary
A-0719-23 32 standard of review, see Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582
(2021), we discern no reason to disturb the motion judge's decision.
V. Recusal
In his final point, plaintiff argues that the motion judge erroneously denied
his recusal application. Plaintiff renews his argument the judge should have
been recused because she was "too fully engaged with other matters to
meaningfully consider the multiple critical issues that have arisen in this action ."
He maintains the judge lacked "concern" about Hammer's dual role as a Brach
Eichler member and Midland Realty owner. The record belies plaintiff's
contentions.
Rule 1:12-2 provides "[a]ny party, on motion made to the judge before
trial or argument and stating the reasons therefor, may seek that judge's
disqualification." Our Supreme Court has held, "[j]udges must avoid actual
conflicts as well as the appearance of impropriety to promote confidence in the
integrity and impartiality of the Judiciary." DeNike v. Cupo, 196 N.J. 502, 507
(2008). "[A]n appearance of impropriety is created when a reasonable, fully
informed person observing the judge's conduct would have doubts about the
judge's impartiality." Goldfarb v. Solimine, 460 N.J. Super. 22, 31 (App. Div.
A-0719-23 33 2019) (alteration in original) (quoting Code of Jud. Conduct r. 2.1 cmt. 3), aff'd
as modified on other grounds, 245 N.J. 326 (2021).
"A movant need not show actual prejudice; 'potential bias' will suffice."
Ibid. (quoting State v. Marshall, 148 N.J. 89, 276 (1997)). Nonetheless, "[i]t is
improper for a judge to withdraw from a case upon a mere suggestion that he [or
she] is disqualified 'unless the alleged cause of recusal is known by him [or her]
to exist or is shown to be true in fact.'" Panitch v. Panitch, 339 N.J. Super. 63,
66 (App. Div. 2001) (quoting Hundred E. Credit Corp. v. Eric Schuster Corp.,
212 N.J. Super. 350, 358 (App. Div. 1986)). "A judge's duty to sit where
appropriate is as strong as the duty to disqualify oneself where sitting is
inappropriate." Goldfarb, 460 N.J. Super. at 31.
Having considered plaintiff's contentions in view of our deferential
standard of review, see id. at 30, we see no reason to disturb the judge's decision.
Based on our review of the voluminous motion record, 4 we conclude the judge
considered plaintiff's arguments and gave adequate reasons for her decisions.
By doing so, the record provides no "doubts about the judge's impartiality" to
necessitate recusal. Id. at 31 (quoting Code of Jud. Conduct r. 2.1 cmt. 3).
4 Plaintiff's appellate appendix contains 1043 pages; Brach Eichler's appellate appendix contains 639 pages; and Tango Dickinson's appellate appendix contains 97 pages. A-0719-23 34 VI. Brach Eichler's Cross-Appeal for Sanctions
In their cross-appeal, Brach Eichler argues the motion judge erroneously
denied defendants' application for sanctions. Defendants cite their Rule 1:4-8
letters to plaintiff, maintaining his complaint and motions for reconsideration
and to join Peapack Gladstone Bank were frivolous, and plaintiff's failure to
dismiss his complaint or withdraw his motions.
In her oral decision accompanying the October 20, 2023 order denying
defendants' motion, the judge recognized the "contentious" nature of the
litigation, including the "back and forth" interruptions and critiques by the
parties. Noting the parties "were never civil to each other," the judge found they
"were equally rude" and "equally frustrated with each other." But the judge was
not convinced "[plaintiff]'s motions or filings r[o]se to the level of . . . bad faith."
The judge further found plaintiff "always tried to get more time" but "tried to do
whatever he had to do to get the discovery that he believed existed to support
his claims."
Rule 1:4-8 authorizes sanctions against attorneys and pro se parties for
frivolous litigation. The Rule supplements N.J.S.A. 2A:15-59.1, which permits
the trial court to award to a prevailing party in a civil action "all reasonable
litigation costs and reasonable attorney fees, if the judge finds at any time during
A-0719-23 35 the proceedings or upon judgment that a complaint, counterclaim, cross -claim
or defense of the non[-]prevailing person was frivolous." N.J.S.A. 2A:15-
59.1(a)(1). To find a pleading was frivolous, the judge must conclude the filing
was made "in bad faith solely for the purpose of harassment, delay or malicious
injury," N.J.S.A. 2A:15-59.1(b)(1), or "[t]he non[-]prevailing party knew, or
should have known" the filing "was without any reasonable basis in law or
equity," N.J.S.A. 2A:15-59.1(b)(2).
"Sanctions are not to be issued lightly; they are reserved for particular
instances where a party's pleading is found to be 'completely untenable,' or
where 'no rational argument can be advanced in its support.'" McDaniel v. Man
Wai Lee, 419 N.J. Super. 482, 499 (App. Div. 2011) (quoting United Hearts,
L.L.C. v. Zahabian, 407 N.J. Super. 379, 389 (App. Div. 2009)); see also Bove
v. AkPharma Inc., 460 N.J. Super. 123, 148, 151 (App. Div. 2019) (noting
sanctions under Rule 1:4-8 and N.J.S.A. 2A:15-59.1 are awarded only in
exceptional cases). Simply because "some of the allegations made at the outset
of litigation later prove[] to be unfounded does not render [the complaint]
frivolous." Bove, 460 N.J. Super. at 148 (quoting Iannone v. McHale, 245 N.J.
Super. 17, 32 (App. Div. 1990)).
A-0719-23 36 "When the [non-prevailing party's] conduct bespeaks an honest attempt to
press a perceived, though ill-founded and perhaps misguided, claim, he or she
should not be found to have acted in bad faith." Id. at 151 (alteration in original)
(quoting Belfer v. Merling, 322 N.J. Super. 124, 144-45 (App. Div. 1999)); see
also First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 432 (App. Div.
2007) ("Where a party has reasonable and good faith belief in the merit of the
cause, attorney's fees will not be awarded."); K.D. v. Bozarth, 313 N.J. Super.
561, 574-75 (App. Div. 1998) (declining to award attorney's fees as sanctions
under Rule 1:4-8 where there was no showing the attorney acted in bad faith).
In view of these governing principles, and given our discretionary
standard of review on a motion for sanctions, see McDaniel, 419 N.J. Super. at
498, we decline to disturb the court's order. The judge ultimately concluded
plaintiff did not act in bad faith. The record supports the judge's determination.
Affirmed.
A-0719-23 37