NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2240-23
THOMAS TRABOCCO,
Plaintiff-Appellant,
v.
VERIZON COMMUNICATIONS, INC., and FIRSTENERGY CORP. doing business as JERSEY CENTRAL POWER & LIGHT, INC.,
Defendants-Respondents. _____________________________
Argued September 8, 2025 – Decided September 19, 2025
Before Judges Natali, Walcott-Henderson and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2838-22.
Christina Vassiliou Harvey argued the cause for appellant (Lomurro Munson, LLC, attorneys; Christina Vassiliou Harvey, of counsel and on the briefs; Andrew Broome, on the briefs). Thomas M. Crino argued the cause for respondent Verizon New Jersey, Inc. (Goldberg Segalla, LLP, attorneys; Thomas M. Crino, of counsel and on the brief).
Stephen A. Rudolph argued the cause for respondent FirstEnergy Corp. (Rudolph Kayal & Almeida, Counselors at Law, PA, attorneys; Stephen A. Rudolph, on the brief).
PER CURIAM
Plaintiff Thomas Trabocco appeals from the entry of five orders resulting
in the dismissal of his complaint against defendants Verizon Communications
Inc., (Verizon) and FirstEnergy Corporation d/b/a/ Jersey Central Power & Light
(JCP&L).1 Plaintiff, a homeowner, sued defendants alleging trespass and
nuisance claims related to a utility pole located in his backyard. Before us,
plaintiff contends the court improperly granted summary judgment in favor of
defendants and denied his motion for reconsideration. We affirm.
1 Plaintiff's case information statement and notice of appeal indicate he is appealing from orders dated November 8, 2023, January 22, 2024, and three separate orders dated March 1, 2024, denying reconsideration and awarding defendants sanctions, cost and fees. Before us, however, plaintiff does not address the issues of attorney's fees, costs and sanctions. The failure to brief an issue constitutes waiver of that issue. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025). We therefore decline to consider any challenge to awarding defendants sanctions, cost and fees. A-2240-23 2 Plaintiff, a resident of Rumson, purchased the subject property in 1982
and constructed a single-family home. Some forty years later, on October 17,
2022, plaintiff filed a four-count complaint alleging defendants Verizon and
JCP&L installed a utility pole, cable and internet transmitting equipment on his
property, constituting trespass, a nuisance, and "dangerous hazard . . . to his
guests and invitees." Plaintiff further alleged defendants removed and replaced
his good quality fencing with substandard fencing sometime in 2021 or 2022.
His complaint sought removal of the subject utility pole and wires from his
property and replacement of his fence.
Nearly one year later, defendants moved to compel plaintiff to provide
discovery in the form of more specific answers to interrogatories and request for
admissions. The motion was unopposed. The court granted defendants' motion
and ordered plaintiff to provide more specific answers to requests for admissions
within fourteen days of the date of the order. Plaintiff did not comply with the
discovery order.
While JCP&L's motion to dismiss was pending, JCP&L moved for
summary judgment, arguing that Verizon is the owner of the subject pole. On
November 3, 2023, the court granted JCP&L's motion to dismiss the complaint
without prejudice for failure to provide court ordered discovery, prior to the
A-2240-23 3 discovery end date.2 Again, no opposition was filed. Plaintiff did not move to
extend the discovery end date or to reinstate his complaint.
Similarly, Verizon cross-moved for summary judgment and in its
statement of material facts acknowledged ownership of the subject utility pole,
identified by pole number pursuant to their Pole Record System, and noted the
pole was installed in 1978. Thomas Young, Senior Manager – Outside Plant,
Network Engineering for Verizon, certified that according to company records,
the pole has never been relocated, removed or replaced. Plaintiff opposed
defendants' summary judgment motions.
On January 19, 2024, the court granted defendants' respective motions for
summary judgment, issuing two separate orders and dismissing all claims in
plaintiff's complaint. In its oral decision, the court stated, defendants assert "the
subject pole was not moved to plaintiff's back yard in 2021 or 2022 but the pole
has been in the same location since 1978." Plaintiff failed "to produce any
evidence, including alleged identified surveys or even a certification . . . to
support [his] assertions," or "any documentary evidence in support of his
assertion that the location of the pole changed and his certification discovery
2 The motion to dismiss is not included in the record before us.
A-2240-23 4 responses conflict with each other and with the complaint." It explained,
plaintiff produced a photograph from his insurance provider dated 2021 showing
the "pole was located on the property in the same location that the defendants
allege the pole existed since 1978." The court reasoned that "no genuine issue
of material fact has been raised as to the location of the utility pole" and found
plaintiff's attempts to create a genuine dispute of fact had failed because "[s]elf-
serving assert[ion]s unsupported by documentary proof in their dominion and
control are insufficient to create a genuine issue of material fact."
Plaintiff moved for reconsideration, attaching a newly offered expert
report: a one-page email prepared by Richard Arik Sevy, of Sevy Electrical,
L.L.C, and a certification authored by plaintiff. Defendants opposed the motion
and cross-moved for frivolous litigation fees and costs.
The court denied plaintiff's motion for reconsideration and granted in part
defendants' cross-motions for sanctions related to plaintiff's frivolous pleadings
under Rule 1:4-8(a), counsel fees and costs. The court found "[p]laintiff has
failed to comply with Rule 4:9-2 governing motions for reconsideration and
failed to identify any basis to disturb its decision[.]" The court further granted
in part defendants' cross-motions for frivolous pleading sanctions and awarded
"counsel fees and costs related to opposing [p]laintiff's motion for
A-2240-23 5 reconsideration." The court's statement of reasons noted that "[p]laintiff knew
or should have known that his pleadings, or at a minimum his motion for
reconsideration, was without any reasonable basis." Additionally, as to JCP&L,
the court concluded it "was clear . . . that even viewing the evidence in a light
most favorable to [p]laintiff as the nonmoving party, there was no basis for
which to oppose [d]efendants’ motion for summary judgment as they did not
own the utility pole in question."
This appeal followed.
I.
Represented by new counsel before us, plaintiff asserts the court erred in:
(1) granting summary judgment as it did not make findings as to the five required
elements for a prescriptive easement; (2) granting summary judgment because
it failed to address plaintiff's claim for an injunction; (3) failing to consider
plaintiff's claim for nuisance; and (4) denying reconsideration. He further
asserts, defendants "entered his property, added a guy wire to a utility pole, and
replaced part of his fence with inferior fencing."3
3 Plaintiff defines a guy wire as "a suspension cable that in this case extends approximately six feet into his yard from the utility pole located at [plaintiff]'s fence." A-2240-23 6 We note that plaintiff's arguments as to prescriptive easement, injunctions,
and nuisance were not raised before the motion court, and thus, we need not
address them. State v. Dangcil, 248 N.J. 114, 132 n.4 (2021) (citing State v.
Galicia, 210 N.J. 364, 383 (2012)). Although we may consider allegations of
errors or omissions not brought to the trial judge's attention if it meets the plain
error standard under Rule 2:10-2, we frequently decline to consider issues that
were not raised below or not properly presented on appeal when the opportunity
for presentation was available. Unless an issue (even a constitutional issue) goes
to the jurisdiction of the trial court or concerns matters of substantial public
interest, the appellate court will generally not consider it. J.K. v. N.J. State
Parole Bd., 247 N.J. 120, 138 n.6 (2021); Nieder v. Royal Indemnity Ins. Co.,
62 N.J. 229, 234 (1973).
On the merits, applying the requisite standard of review, we reject
plaintiff's arguments and affirm substantially for the reasons stated by the court
in its oral decision on the motion for summary judgment and written statement
of reasons accompanying the orders denying reconsideration. We address
plaintiff's arguments seriatim.
A-2240-23 7 II.
We review the disposition of a summary judgment motion de novo,
applying the same standard used by the trial court. Townsend v. Pierre, 221 N.J.
36, 59 (2015) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)). Like the trial court, we view whether "the competent evidential
materials presented, when viewed in the light most favorable to the non-moving
party, are sufficient to permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party." Town of Kearny v. Brandt, 214 N.J.
76, 91 (2013) (quoting Brill, 142 N.J. at 540). If ''the evidence 'is so one-sided
that one party must prevail as a matter of law,'" courts will "not hesitate to grant
summary judgment." Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)).
If there are materially disputed facts, the motion for summary judgment
should be denied. Pantano v. N.Y. Shipping Ass'n, 254 N.J. 101, 115 (2023).
"'A material fact is one which is really in issue in the case.'" State v. Buckley,
216 N.J. 249, 261 (2013) (quoting State v. Hutchins, 241 N.J. Super. 353, 359
(App. Div. 1990)). Courts must consider if the disputed fact is genuine or of
"an insubstantial nature." Brill, 142 N.J. at 529. As such, a non-moving party
will not be successful in defeating a motion for summary judgment "merely by
A-2240-23 8 pointing to any underlying fact in dispute." Ibid. The opposing party must
produce evidence that creates a genuine issue of material fact, and "[c]onclusory
and self-serving assertions by one of the parties are insufficient to overcome the
motion." Vizzoni v. B.M.D., 459 N.J. Super. 554, 567 (App. Div. 2019)
(quoting Puder v. Buechel, 183 N.J. 428, 440-41 (2005)). "[S]elf-serving
assertions, unsupported by documentary proof in their dominion and control,
'[are] insufficient to create a genuine issue of material fact.'" Miller v. Bank of
America Home Loan Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015)
(quoting Heyert v. Taddese, 431 N.J. Super. 388, 414 (App. Div. 2013)).
We are satisfied the court, on the sparse record before it, properly granted
summary judgment in defendants' favor because plaintiff failed to present any
genuine issue of material fact to defeat the motions. Importantly, plaintiff offers
no proof to rebut defendants' evidence the subject pole has been in its present
location since 1978, well beyond the thirty-year timeframe necessary to
establish a prescriptive easement claim. "[T]he proponent of an easement by
prescription must prove an adverse use of land that is visible, open and notorious
for at least thirty years." Yellen v. Kassin, 416 N.J. Super. 113, 120 (App. Div.
2010) (citing Randolph Town Ctr., L.P. v. County of Morris, 374 N.J. Super.
448, 453-54 (App. Div. 2005), rev'd in part, 186 N.J. 78 (2006)).
A-2240-23 9 Plaintiff's self-serving assertions that the subject pole was not located on
his property in 1978 or 1982 are belied by the competent evidence presented by
defendants and proved insufficient to establish a genuine issue of material fact
sufficient to defeat the summary judgment motions as "speculation does not
meet the evidential requirements which would allow it to defeat a summary
judgment." Merchants Express Money Order Co. v. Sun Nat'l Bank, 374 N.J.
Super. 556, 563 (App. Div. 2005) (citing O'Loughlin v. National Comm. Bank,
338 N.J. Super. 592, 606-07 (App. Div. 2001), certif. denied, 169 N.J. 606, 782
(2001)).
Further, ''the evidence [was] so one-sided that one party must prevail as a
matter of law." Brill, 142 N.J. at 540 (quoting Anderson, 477 U.S. at 252). As
noted, contrary to Rule 4:46-2(b), plaintiff provided unsupported and
incompetent evidence supporting his contention the pole was installed in either
2021 or 2022, and failed to rebut the fact that Verizon records show a pole was
openly and conspicuously placed on his property in 1978 or otherwise
competently explain how a utility pole appeared on his property over forty years
later, as confirmed by the photographs in the record. In sum, while the court did
not address each element required for a prescriptive easement claim, summary
judgment is proper because plaintiff failed to refute defendants' proofs as to the
A-2240-23 10 date of installation of the subject pole.
III.
We similarly reject plaintiff's contention the motion court erred by failing
to address his claim for injunctive relief. More particularly, plaintiff contends
the court failed to consider the proofs submitted that the guy wire was
constructed sometime after November 2021. He asserts at some time between
2021 and 2022, "a utility guy wire was added and parts of [his] fence were
removed." Thus, he maintains the court should have enjoined defendants' use
of the easement because they have "[no] authority to place a dangerous guy
wire" or replace his fence. Injunctive relief is available, "only when the
proponent demonstrates that it has established the liability of the other party, the
need for injunctive relief, 'and the appropriateness of such relief on a balancing
of equities.'" Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone Research,
Inc., 427 N.J. Super. 45, 63 (App. Div. 2012) (quoting Rinaldo v. RLR Inv.,
LLC, 387 N.J. Super. 387, 397 (App. Div. 2006)).
The maintenance performed by the owner of an easement must not extend
beyond that which is "reasonably necessary" to enjoy the easement and must be
done "in such reasonable manner as to avoid unnecessary increases in the burden
upon the landowner." Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591,
A-2240-23 11 604 (1964). Indeed, courts may enjoin use of an easement that is inconsistent
with the grant thereof. Lidgerwood Estates v. Public Serv. Elec. & Gas Co., 113
N.J. Eq. 403, 406 (Ch. 1933).
Plaintiff’s assertions that the guy wire was installed and the fence
replaced—claims echoed by the procedurally-deficient "expert" report—are
unfounded statements based solely on the fact that he did not install them
himself. As plaintiff provided neither an analysis pertaining to defendants'
liability before the court, nor a sufficient evidentiary basis for his contention
that the guy wire was placed after November 2021, nor offered any other
competent evidentiary material to rebut defendants' proofs, we are satisfied
based on our de novo review that the court did not err dismissing plaintiff's
request for injunctive relief or by failing to specifically address plaintiff's
request.
IV.
Plaintiff next argues the court failed to analyze his nuisance and trespass
claims prior to granting summary judgment. To prevail on a nuisance claim,
plaintiff must show a legal cause of interference with another’s private use and
enjoyment of land that is either intentional and unreasonable, or unintentional
but actionable as negligent or reckless, or for abnormally dangerous activities
A-2240-23 12 Ross v. Lowitz, 222 N.J. 494, 501-02 (2015). "[L]iability should not be imposed
without proof of some negligence or unreasonable activity by the defendant."
Burke v. Briggs, 239 N.J. Super. 269, 274 (App. Div. 1990) (citing Gellenthin
v. J. & D., Inc., 38 N.J. 341, 352-53 (1962)). "Accordingly, '[l]iability for an
invasion of interests in the use and enjoyment of land . . . depends upon the
presence of some type of tortious conduct.'" Ross, 222 N.J. at 507 (quoting
Restatement (Second) of Torts § 822 cmt. c (A.L.I. 1979)).
In his complaint, plaintiff asserted that the subject pole and "conduct of
defendants . . . constitutes a nuisance." Plaintiff also contended the "conduct of
the defendants has created a dangerous hazard[.]" Because plaintiff has failed
to show an "[interference that is] intentional and unreasonable or result[s] from
negligent, reckless or abnormally dangerous conduct," he fails to satisfy the
elements to establish a private nuisance claim. Ross, 222 N.J. at 506-07 (quoting
Restatement (Second) of Torts § 822 cmt. b (A.L.I. 1979)). As such, on this
record, again applying our de novo review, we are satisfied the court did not err
in granting summary judgment and dismissing plaintiff's complaint, including
his nuisance count.
Plaintiff's trespass claim suffers from the same malady as the nuisance
claim. To sustain a trespass claim or defeat defendants' motion for summary
A-2240-23 13 judgment, the law requires competent evidence of intentional, reckless, or
negligent conduct by defendants. "A defendant is liable in trespass for an
'intentional[]' entry onto another's land, regardless of harm." Ross, 222 N.J. at
510 (quoting Restatement (Second) of Torts § 158 (A.L.I. 1979)). A defendant
is also liable if he "recklessly or negligently, or as a result of an abnormally
dangerous activity enters onto another's land, and the entry causes harm." Id.
Plaintiff’s arguments are unavailing, as the presence of a utility pole in his
backyard, installed before he purchased the property, does not constitute a
trespass. The court's grant of summary judgment was therefore proper.
We next turn to plaintiff's claim the court incorrectly denied
reconsideration based on a palpably incorrect basis. We review the denial of a
motion for reconsideration for an "abuse of discretion." Cummings v. Bahr, 295
N.J. Super 374, 389 (App. Div. 1996) (citation omitted). "A court abuses its
discretion when its 'decision is made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis.'" State
v. Chavies, 247 N.J. 245, 257 (2021) (quoting State v. R.Y., 242 N.J. 48, 65
(2020)). "'[A] functional approach to abuse of discretion examines whether
there are good reasons for an appellate court to defer to the particular decision
A-2240-23 14 at issue.'" R.Y., 242 N.J. at 65 (quoting Flagg v. Essex Cnty. Prosecutor, 171
N.J. 561, 571 (2002)). "When examining a trial court's exercise of discretionary
authority, we reverse only when the exercise of discretion was 'manifestly
unjust' under the circumstances." Newark Morning Ledger Co. v. N.J. Sports &
Exposition Auth., 423 N.J. Super. 140, 174 (App. Div. 2011) (quoting Union
Cnty. Improvement Auth. v. Artaki, LLC, 392 N.J. Super. 141, 149 (App. Div.
2007)).
Plaintiff maintains the trial court erred in denying the motion for
reconsideration because his expert report and other belatedly submitted evidence
demonstrated a genuine issue of material fact that would have precluded
summary judgment. He further argues the trial court's basis for not considering
the report was that discovery was over and the report could have been provided
in opposition to the summary judgment motion. He avers that the summary
judgment motion was filed after the dismissal of his complaint, without
prejudice and maintains the Court Rules would have permitted him to complete
discovery following reinstatement of his complaint.
Plaintiff, however, did not move to reinstate his complaint and the expert
report consisting of a single page email to plaintiff dated January 23, 2024,
following the close of discovery and grant of summary judgment. In the report,
A-2240-23 15 Sevy opined that "the electrical pole that is on [plaintiff's] property has been
placed there recently and was, in fact, not there from the original build of the
home" and cited his reasoning. The court, however, found that plaintiff had not
provided any justification for why the Sevy report could not have been provided
prior to the close of discovery and the filing of defendants' summary judgment
motion. The court concluded that plaintiff "failed to demonstrate why the
[c]ourt, in the interest of justice, should consider [the] untimely evidence."
We have no quarrel with the court's reasoning and conclude
reconsideration was not warranted. Reconsideration is not a vehicle to present
new arguments or evidence that were available but not raised at the appropriate
stage, nor is it intended to provide a party with a second opportunity to
supplement the record after an adverse ruling. See Fusco v. Board of Educ. of
City of Newark, 349 N.J. Super. 455, 462-63 (App. Div. 2002). Because the
court determined plaintiff could have provided an expert report, and its other
proofs, prior to its grant of summary judgment and did not without any
justification, we discern no abuse of discretion by the court.
To the extent we have not specifically addressed any of the parties'
arguments, it is because we have concluded they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm the
A-2240-23 16 orders granting summary judgment in favor of defendants and denying
reconsideration.
Affirmed.
A-2240-23 17