PAUL RICHMAN VS. A COUNTRY PLACE CONDOMINIUM ASSOCIATION, INC. (C-000210-16, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 23, 2020
• Docket: A-2685-18T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2685-18T2

PAUL RICHMAN,

Plaintiff-Appellant,

v.

A COUNTRY PLACE CONDOMINIUM ASSOCIATION, INC., A COUNTRY PLACE CONDOMINIUM ASSOCIATION BOARD OF DIRECTORS, BARRY FRISCHMAN, BARRY HERTZ, ISAAC HOLTZ, FAY ENGLEMAN, LIVIA COHEN, OCEAN MANAGEMENT GROUP, JACK SCHMIDT, ELI SCHWARTZ, JESSICA SCHACH, JOE GRUEN, GARY EISENBERGER, and MILTON NUEMAN,

Defendants-Respondents,

and

UNITED PAVING CONTRACTORS,

Defendants.

and A COUNTRY PLACE CONDOMINIUM ASSOCIATION, INC., A COUNTRY PLACE CONDOMINIUM ASSOCIATION BOARD OF DIRECTORS, BARRY FRISCHMAN, BARRY HERTZ, ISAAC HOLTZ, FAY ENGLEMAN, LIVIA COHEN, OCEAN MANAGEMENT GROUP, JACK SCHMIDT, ELI SCHWARTZ, JESSICA SCHACH, JOE GRUEN, GARY EISENBERGER, and MILTON NUEMAN,

Defendants/Third-Party Plaintiffs-Respondents,

Third-Party Defendant. ________________________________

Submitted November 2, 2020 – Decided November 23, 2020

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C- 000210-16.

Paul Richman, appellant pro se.

Costigan & Costigan, attorneys for respondents (Angela Maione Costigan, on the brief).

A-2685-18T2 2 Methfessel & Werbel, attorneys for respondents as to Counts 11, 12 and 13 only (Christian R. Baille, of counsel and on the brief).

PER CURIAM

Plaintiff appeals from two orders: a February 16, 2018 order granting

plaintiff's counsel's motion to be relieved as counsel; and a January 11, 2019

order granting summary judgment in favor of A Country Place Condominium

Association, Inc. (ACP), ACP Board of Directors (Board), Board members in

their individual capacity, and Ocean Management Group (OMG) (collectively

defendants) dismissing all of plaintiff's nineteen claims. The judge did not abuse

his discretion by granting plaintiff's counsel's motion to be relieved as counsel,

and the judge correctly granted summary judgment in favor of defendants as to

all claims except plaintiff's New Jersey Law Against Discrimination (LAD)

claim. We therefore affirm and reverse only as to the LAD claim, pointing out

that the Court of Appeals for the Third Circuit in Curto v. A Country Place

Condo. Ass'n, Inc., 921 F.3d 405 (3d Cir. 2019) reversed the District Court's

decision on which the judge substantially and erroneously relied to dismiss the

LAD claim.

Plaintiff is a resident of ACP. In September 2016, through prior counsel,

plaintiff filed an eight-count complaint against defendants, followed by a first-

A-2685-18T2 3 and second-amended complaint in December 2016. Plaintiff's allegations

include malicious prosecution, breach of contract, tortious interference with

easements, ouster, violations of the New Jersey Condominium Act (NJCA),

violations of the LAD, negligent property damage, and breach of fiduciary duty,

among multiple other claims.

In February 2018, plaintiff's counsel filed a motion to be relieved as

counsel. The judge granted that motion, and plaintiff proceeded pro se. In

September 2018, defendants filed their motion for summary judgment, and in

January 2019, after conducting oral argument, the judge granted the motion and

rendered a thorough oral opinion.

On appeal, plaintiff raises the following points for our consideration 1:

POINT I Malicious Prosecution (harassment, emotional distress – plaintiff and wife death, etc.)[.]

POINT II Breach of [C]ontract/[D]eclaratory Judgment (settlement term)[.]

1 Defendants ask us to dismiss plaintiff's appeal for failure to comply with the appellate rules. We decline to do so. We granted plaintiff's motion to accept his appellate brief "as is." Additionally, dismissal of an appeal is the most drastic sanction and should be cautiously utilized, see Crispin v. Volkswagenwerk A.G., 96 N.J. 336, 345 (1984). Dismissal is inappropriate here. A-2685-18T2 4 POINT III Breach of an [I]mplied [C]ovenant of [G]ood [F]aith and [F]air [D]ealing[.]

POINT IV Tortious [I]nterference [W]ith [E]njoyment of an [E]asement (Trespassing/ACP took away my membership rights)[.]

POINT V Ouster (Trespassing/could not go to clubhouse)[.]

POINT IV Tortious [I]nferference [W]ith [E]njoyment of an [E]asement (Trespassing)[.]

POINT VII Ouster (Trespassing)[.]

POINT VIII Tortious [I]nterference [W]ith [E]njoyment of an [E]asement (Pool)[.]

POINT IX Breach of [NJCA], N.J.S.A. 46:8B-1 et seq. (Pool)[.]

POINT X Violation of the [LAD] (Pool)[.]

POINT XI Negligent Property Damage (Driveway/loss of magazines)[.]

POINT XII Breach of [NJCA], N.J.S.A. 46:8B-1 et seq[.] (Driveway/loss of magazines)[.]

A-2685-18T2 5 POINT XIII Breach of Master Deed and By-Laws, N.J.S.A. 46:8B- 1 et seq[.] (Roof)[.]

POINT XIV Breach of [NJCA], N.J.S.A. 46:8B-14 et seq[.] (Roof)[.]

POINT XV Breach of Master Deed and By-[L]aws. N.J.S.A. 46:8B- 1 et seq[.] (Roof)[.]

POINT XVI Breach of [NJCA], N.J.S.A. 46:8B-1 et seq[.] (Elections)[.]

POINT XVII Breach of Fiduciary Duty, N.J.S.A. 46:8B-1 et seq[.]

POINT XVIII Breach of the By-Laws, N.J.S.A. 46:8B-1 et seq[.]

POINT XIX Breach of Fiduciary Duty, N.J.S.A. 48:8B-1 (Self- Dealing/Sewage)[.]

Plaintiff amended his appeal to include the following contention, which we have

renumbered:

[POINT XX] [The judge abused his discretion when he granted plaintiff's counsel's motion to be relieved as counsel.]

A-2685-18T2 6 I.

We begin by addressing plaintiff's argument that the judge erred in

granting his counsel's motion to be relieved. Plaintiff notes his numerous

disagreements with assertions contained in his former counsel's certification.

Defendants argue that the judge properly relieved plaintiff's counsel because

there was "obvious friction between plaintiff and his counsel and a deterioration

of the attorney[-]client relationship." We conclude that the judge did not abuse

his discretion by granting plaintiff's attorney's motion to be relieved as counsel.

See Jacob v. Pendel, 98 N.J. Super. 252, 255 (App. Div. 1967) (noting that "[t]he

granting of [counsel's] leave by the court is generally in the discretion of the

court").

Withdrawal is governed by Rule 1:11-2. In a civil action, once a trial date

has been fixed an attorney may only "withdraw without leave of court . . . upon

the filing of the client's written consent," among other things. R. 1:11-2(a)(2).

Without the client's consent, counsel may only withdraw after giving notice to

their client and with leave of court, and the withdrawal must be based on one of

the permissible bases provided in the Rules of Professional Conduct (RPC). R.

1:11-2(a)(2); R.P.C. 1.16(b). Permissible reasons for terminating representation

provided in the RPC include if "withdrawal can be accomplished without

A-2685-18T2 7 material adverse effect on the interests of the client" or if "the client insists upon

taking action that the lawyer considers repugnant or with which the lawyer has

a fundamental disagreement[.]" R.P.C. 1.16(b)(1), (b)(4).

Plaintiff's attorney asserted that being relieved as counsel would not have

a materially adverse effect on plaintiff's interests because he filed his motion to

be relieved during the discovery phase, where there would be ample time to

retain counsel that is "just as competent, if not more so" to handle the case.

Additionally, plaintiff's attorney and his firm "fundamentally disagree[d]" with

plaintiff and his desired courses of action because the "firm has no experience

in [condominium association law.]" Plaintiff and his attorney initially agreed

that they would pursue a malicious prosecution claim against defendants;

however, plaintiff soon demanded that they add eighteen additional claims to

the complaint in areas of law that the attorney and his firm do not practice.

Plaintiff's attorney "urg[ed] [p]laintiff to seek other counsel more familiar with

condominium association law on numerous occasions," both in letters and

meetings, but to no avail. We see no abuse of discretion by granting the motion,

especially since the motion had been made well before the discovery end date ,

the withdrawal did not have a materially adverse effect on plaintiff's interests,

A-2685-18T2 8 and there were clear fundamental disagreements between plaintiff and his

counsel.

II.

We now turn to the order granting summary judgment, which we review

under the same standard that governed the motion judge. Templo Fuente De

Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J 189, 199 (2016).

Summary judgment is appropriate where "the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged and that th e

moving party is entitled to a judgment or order as a matter of law." Ibid.

(quoting R. 4:46-2(c)).

We view the evidence "in the light most favorable to the non-moving

party" to determine whether it is "sufficient to permit a rational factfinder to

resolve the alleged disputed issue in favor of the non-moving party." Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Although we "must

accept as true all the evidence which supports the position of the party defending

against the motion and must accord him . . . the benefit of all legitimate

inferences which can be deduced therefrom," id. at 535 (quoting Lanzet v.

Greenberg, 126 N.J. 168, 174 (1991)), "[c]onclusory and self-serving assertions

A-2685-18T2 9 . . . are insufficient to overcome the motion." Sullivan v. Port Auth. of N.Y. &

N.J., 449 N.J. Super. 276, 283 (App. Div. 2017) (quoting Puder v. Buechel, 183

N.J. 428, 440-41 (2005)). "If the evidence is so one-sided that one party will

prevail as a matter of law, summary judgment should be granted." New Gold

Equities Corp. v. Jaffe Spindler Co., 453 N.J. Super. 358, 372 (App. Div. 2018).

Considering the judge's reliance on the District Court's reasoning in Curto

to grant summary judgment in favor of defendant on plaintiff's LAD claim,

which was subsequently reversed by the Third Circuit, we reverse only as to that

claim. As to the remaining claims, we affirm for the reasons expressed in the

judge's thorough and comprehensive oral opinion. We add the following

remarks.

A. Malicious Prosecution

Plaintiff argues that he sufficiently proved that the 2014 lawsuit brought

against him by Rose Hallum (Hallum) and the 2016 lawsuit brought against him

by Jessica Schach (Schach), both Board secretaries, satisfied the requirements

of malicious prosecution by ACP. Defendants argue that plaintiff did not satisfy

his burden of proof that the litigation was initiated without probable cause. We

affirm the judge's grant of summary judgment as to plaintiff's malicious

prosecution claim because there was probable cause to institute the proceedings

A-2685-18T2 10 and because Hallum and Schach agreed to dismiss their complaints with

stipulations in their individual capacities.

Malicious prosecution arises when a person "recklessly institutes criminal

proceedings without any reasonable basis[.]" Lind v. Schmid, 67 N.J. 255, 262

(1975). To succeed on a claim of malicious prosecution, a plaintiff must

establish: "(1) that the criminal action was instituted by the defendant against

the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of

probable cause for the proceeding, and (4) that it was terminated favorably to

the plaintiff." Ibid. (citations omitted). "The essence of the cause of action is

lack of probable cause, and the burden of proof rests on the plaintiff. The

plaintiff must establish a negative, namely, that probable cause did not exist."

Id. at 262-63.

There was sufficient probable cause for Hallum's harassment complaint

against plaintiff. The judge noted that Hallum included "a police report,

certifications, [and] a report of probable cause" along with her complaint. The

judge also noted that although Hallum and Schach worked as Board secretaries,

they agreed to dismiss their claims with stipulations in their individual

capacities, and not in their capacity as employees of ACP or the Board. Because

A-2685-18T2 11 ACP or the Board were not a party to the dismissal agreement, a malicious

prosecution claim cannot be maintained against them.

B. LAD

Plaintiff argues that the swimming pool schedule that set times for

swimming based on gender violates the LAD. Plaintiff points to the Third

Circuit's decision in Curto, 921 F.3d 405 (3d Cir. 2019), reversing the District

Court's grant of summary judgment. In granting the LAD claim, the judge relied

heavily on the District Court's analysis and decision.

In Curto, the District Court was asked to determine whether ACP's rules

segregating the use of the swimming pool by sex violated the Fair Housing Act

(FHA). Curto v. A Country Place Condo. Ass'n, No. 16-5928, 2018 U.S. Dist.

LEXIS 15394, at *10 (D.N.J. Jan. 31, 2018). The District Court granted

summary judgment in favor of ACP on the plaintiff's FHA claim because "the

gender-segregation schedule applies to men and women equally." Id. at *12.

The District Court dismissed plaintiff's LAD claim as moot because the court

had already remanded the present case to the Superior Court, where the same

pool policy was being challenged under LAD. Id. at *12-13.

The Third Circuit reversed, holding that the rules enacted by ACP

"discriminate[d] against women in violation of the FHA." Curto, 921 F.3d at

A-2685-18T2 12 407. The swimming pool schedule permitted men to swim 32.5 hours of the

week and permitted women to swim 33.5 hours of the week, with the remainder

being nonsegregated swimming time. Id. at 409. However, the Third Circuit

was concerned with the way in which the hours were allocated; for example,

"women are able to swim for only 3.5 hours after 5:00 p.m. onward on

weeknights, compared to 16.5 for men." Id. at 410. The court explained that

these sorts of restrictions "appear[] to reflect particular assumptions about the

roles of men and women" which are impermissible under the Fourteenth

Amendment. Id. at 410-11. Thus, even though ACP provided roughly the same

amount of time to both genders, "the schedule discriminates against women

under the FHA[.]" Id. at 411.

Disparate impact claims brought under the LAD mirror the analysis of

disparate impact claims under the FHA. The New Jersey Supreme Court has

"not suggest[ed] that the disparate impact analysis under the LAD would be any

different from a disparate impact analysis under case law construing [the FHA]."

In re Adoption of 2003 Low Income Housing Tax Credit Qualified Allocation

Plan, 369 N.J. Super. 2, 42 (App. Div. 2004). Therefore, "[t]here is no reason

to believe that the disparate impact analysis [under the FHA] would be any

different under the LAD." Id. at 42-43. The Third Circuit in Curto noted that

A-2685-18T2 13 "[w]here a regulation or policy facially discriminates on the basis of the

protected trait, in certain circumstances it may constitute per se or explicit

discrimination because the protected trait by definition plays a role in the

decision-making process." Curto, 921 F.3d at 410 (citation omitted). And in

such a case, a showing of malice is not required when "a plaintiff demonstrates

that the challenged action involves disparate treatment through explicit facial

discrimination" because "the focus is on the explicit terms of the

discrimination." Ibid. (citations omitted).

The judge relied on the District Court's reasoning in Curto that the

swimming pool schedule violated the FHA to find that the schedule does not

result in disparate treatment under the LAD. The judge was "satisfied and

persuaded by [the District Court's] opinion that . . . for the reasons stated in that

opinion, there is no separate treatment. There is no disparate treatment . . . on

its face." In light of the reversal, the judge's reliance on the District Court's

analysis is misplaced, and summary judgment on the LAD claim here was

erroneously granted.

C. Negligent Property Damage to Plaintiff's Garage

Plaintiff argues that ACP is liable for the damage to his garage and

destruction of memorabilia because of flooding that occurred after United

A-2685-18T2 14 Paving Contractors (UPC) resurfaced his driveway. Plaintiff argues that he does

not need to provide an expert report in this case because "[i]f an expert is needed,

it is ACP['s] decision." Defendants argue that the judge properly granted their

motion for summary judgment because UPC is an independent contractor for

which ACP is not liable, and plaintiff failed to provide an expert report. Because

it was necessary for plaintiff to file an expert report regarding driveway

resurfacing to show UPC's alleged negligence, and because UPC was an

independent contractor, we affirm the judge's grant of summary judgment as to

these claims.

Employers are not liable for the negligent actions of the independent

contractors except in cases where the work performed by the independent

contractor is inherently or abnormally dangerous. Bahrle v. Exxon Corp., 145

N.J. 144, 156-57 (1996) (noting that liability when performing inherently or

abnormally dangerous activities "stems from a non-delegable duty to exercise

reasonable care"). An independent contractor is "a person 'who, in carrying on

an independent business, contracts to do a piece of work according t o his own

methods without being subject to the control of the employer as to the means by

which the result is to be accomplished but only as to the result of the work.'" Id.

A-2685-18T2 15 at 157 (quoting Wilson v. Kelleher Motor Freight Lines, Inc., 12 N.J. 261, 264

(1953)).

"In general, expert testimony is needed where the factfinder would not be

expected to have sufficient knowledge or experience and would have to

speculate without the aid of expert testimony." Torres v. Schripps, Inc., 342

N.J. Super. 419, 430 (App. Div. 2001) (citing Kelly v. Berlin, 300 N.J. Super.

256, 268 (App. Div. 1997)). "A witness must be shown to have certain skills,

knowledge or training in a technical area in order to be qualified to give expert

testimony." Ibid. (citing N.J.R.E. 702).

The judge properly noted that plaintiff cannot prevail on these claims

because he "has not served any expert reports stating that [UPC] deviated from

any standards of care that proximately caused plaintiff's damages[.]" A typical

juror would not have sufficient knowledge or experience to know whether UPC

negligently resurfaced plaintiff's driveway without expert testimony. Nor can

ACP be held liable for UPC's negligence if there was proof that they were

negligent in their resurfacing the driveway. UPC was an independent contractor

hired by ACP to perform driveway resurfacing, work that could not be

categorized as inherently or abnormally dangerous.

A-2685-18T2 16 Affirmed in part, reversed in part, and remanded. We do not retain

jurisdiction.

A-2685-18T2 17