BRIAN D. ASARNOW VS. CITY OF LONG BRANCH (L-4039-11, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )


Menu:
  •                         NOT FOR PUBLICATION WITHOUT THE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-4973-14T4
    
    BRIAN D. ASARNOW,
    
            Plaintiff-Appellant,
    
    v.
    
    CITY OF LONG BRANCH, a municipal
    corporation of NJ; ADAM SCHNEIDER,
    Mayor; MARY JANE CELLI, Councilwoman;
    HOWARD WOOLLEY, Administrator;
    KEVIN HAYES, Director of Building &
    Development; MICHELLE BERNICH,
    Zoning Officer; TERRY JANECZEK,
    Chairperson, Zoning Board; MICHAEL
    IRENE, Zoning Board Attorney; ZONING
    BOARD; EDWARD BRUNO and E&L PAVING,
    INC.; RAYMOND GRIECO and ATLANTIC
    PAVING (& COATING), LLC; JOE ROSARIO
    & ROSARIO CONTRACTING CORP., d/b/a
    ROSARIO MAZZA DEMOLITION AND RECYCLING
    CO.; CUSTOM LAWN SPRINKLER CO., LLC,
    
            Defendants-Respondents,
    
    and
    
    R. BROTHERS CONCRETE, LLC, RICHARD
    BRAHA and SEASHORE DAYCAMP,
    
            Defendants.
    
    _________________________________________
    
                  Submitted January 23, 2017 – Decided September 18, 2017
              Before Judges Sabatino, Nugent, and Currier.
    
              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Docket No. L-
              4039-11.
    
              Hegge & Confusione, LLC, attorneys for
              appellant (Michael Confusione, of counsel and
              on the brief).
    
              Ansell, Grimm & Aaron, PC, attorneys for
              respondents   City   of  Long   Branch,   Adam
              Schneider, Mary Jane Celli, Howard Woolley,
              Kevin Hayes, Michelle Bernich, Terry Janeczek,
              Michael Irene and Zoning Board of Adjustment
              (Barry M. Capp, of counsel and on the brief).
    
              Paul R. Edinger, attorney for respondents
              Edward Bruno and E&L Paving, Inc., Ray Greico
              and Atlantic Paving (& Coating), LLC, Joe
              Rosario and Rosario Contracting Corp., and
              Custom Lawn Sprinkler Co., LLC.
    
    PER CURIAM
    
         Plaintiff Brian D. Asarnow appeals from an October 3, 2014
    
    order granting summary judgment in favor of defendants City of
    
    Long Branch and public officials Adam Schneider, Mary Jane Celli,
    
    Howard Woolley, Kevin Hayes, Michelle Bernich, Terry Janeczek,
    
    Michael Irene, and Long Branch Zoning Board of Adjustment ("Zoning
    
    Board"), ("public defendants").   Plaintiff also appeals from trial
    
    court orders vacating defaults against certain defendants and from
    
    a June 11, 2015 order memorializing a jury verdict entered in
    
    favor of defendants Edward Bruno, E&L Paving, Inc., Ray Greico,
    
    Atlantic Paving and Coating, LLC, Joe Rosario, Rosario Contracting
    
    
                                      2                         A-4973-14T4
    Corp., Rosario Mazza Demolition and Recycling Co., and Custom Lawn
    
    Sprinkler Co., LLC ("private defendants").
    
         Plaintiff has owned property in Long Branch since 1995 and
    
    has used the property as an office, a lab, for light manufacturing,
    
    and rental space. Private defendants owned an adjacent lot. Bruno
    
    purchased the property in the 1960s to operate an asphalt paving
    
    business, E&L Paving, Inc., and he leased the property to other
    
    contractors throughout the years.     In 2009, Bruno rented the
    
    property to Greico, Rosario, and their respective contracting
    
    companies.   The land straddles an industrial zone, a commercial
    
    zone, and a residential zone.
    
         On August 3, 2009, E&L and Atlantic Paving obtained a zoning
    
    permit to operate a paving company and contractor's yard.          In
    
    response to the permit, plaintiff commenced a letter writing
    
    campaign to have it revoked, writing letters to the City's Mayor
    
    and Business Administrator. On January 27, 2010, the City Director
    
    of Building and Development and Fire Marshal sent a "Notice of
    
    Violation" to Atlantic Paving, asserting it had exceeded the use
    
    of the August 2009 permit.   On April 30, 2010, plaintiff filed a
    
    verified complaint in lieu of prerogative writs seeking to: void
    
    the August 2009 permit issued to E&L and Atlantic Paving; compel
    
    Long Branch to enforce the Notice of Violation; and provide
    
    plaintiff unfettered access to his property.    Asarnow v. City of
    
                                    3                           A-4973-14T4
    Long Branch, A-0999-10 (App. Div. May 6, 2013).           He asserted the
    
    public defendants' issuance of the permit was "ultra vires."
    
            Subsequently, public defendants filed a motion to dismiss.
    
    On August 27, 2010, the trial judge granted defendants' motion,
    
    concluding plaintiff failed to exhaust administrative remedies and
    
    comply with Rule 4:69-5.      Plaintiff appealed.      Asarnow v. City of
    
    Long Branch, No. A-0999-10 (App. Div. May 6, 2016).             We affirmed.
    
         In October 2011, while plaintiff's appeal was pending, he
    
    filed   a   ten-count   complaint    against   the   public     and   private
    
    defendants,    which    included    claims   for   nuisance,    intentional
    
    infliction of emotional distress, interference with prospective
    
    economic advantage, breach of fiduciary duty, civil conspiracy,
    
    Section 1983 violations, and breach of contract.                The private
    
    defendants initially failed to respond to the complaint, prompting
    
    the entry of default.      Edward Bruno and E&L Paving moved to vacate
    
    default.    The trial court granted their motion.         The trial court
    
    granted the remaining defendants' motions and vacated the defaults
    
    against them.
    
         After discovery, the public defendants moved for summary
    
    judgment.     On October 3, 2014, in a comprehensive oral opinion,
    
    the court granted the motion for many reasons, including the entire
    
    controversy    doctrine,    the    Tort   Claims   Act,   the   statute      of
    
    
    
                                          4                               A-4973-14T4
    limitations, and plaintiff's failure to present a prima facie case
    
    for each of his respective claims.
    
         Trial commenced in May 2015 against the private defendants
    
    based   on    plaintiff's   claims       for   nuisance   and   intentional
    
    infliction of emotional distress.          During the trial, the court's
    
    evidentiary rulings included denying the admission by plaintiff
    
    of evidence concerning zoning violations, a website hacking, and
    
    an alleged "arson," finding that the probative value of such
    
    evidence would be substantially outweighed by undue prejudice and
    
    risk of jury confusion.      The jury rendered a verdict in favor of
    
    the private defendants.     This appeal followed.
    
         Plaintiff raises the following arguments:
    
         Point I
    
                 The trial court erred in precluding plaintiff
                 from introducing before the jury at trial
                 evidence   of   prior  and   ongoing   zoning
                 violations by the private defendants and
                 evidence that defendants' activities on their
                 adjoining properties exceeded those permitted
                 during the time period in question, and in
                 precluding other key evidence relevant to
                 proving plaintiff's nuisance claim against
                 the private defendants.      Precluding this
                 evidence at trial deprived plaintiff of a
                 fair trial on his nuisance claim and warrants
                 reversal and remand for a new trial.
    
    
    
    
                                         5                              A-4973-14T4
         Point II
    
                The trial court erred in granting summary
                judgment to the City of Long Branch and its
                public officials and denying [p]laintiff's
                summary judgment for injunctive relief.
    
         Point III
    
                The trial court erred in granting the motion
                to vacate default by defendants Raymond
                Greico, Atlantic Paving [&] Coating, LLC, Joe
                Rosario, Rosario Contracting Corp., and Custom
                Lawn and Sprinkler Company.
    
         Point IV
    
                The trial court erred in allowing the
                opposition   appraiser's   methodology  which
                prejudiced   [p]laintiff's    damages  claim;
                defendants should not be permitted to violate
                case law and professional standards upon any
                remand.
    
         We affirm the grant of summary judgment to the municipal
    
    defendants substantially for the reasons expressed by Judge Jamie
    
    S. Perri in her comprehensive oral opinion.   Plaintiff's remaining
    
    claims concerning the order vacating default and alleged trial
    
    errors are without sufficient merit to warrant discussion in a
    
    written opinion.    R. 2:11-3(e)(1)(E).   We add only the following
    
    comments.
    
         Motions to "vacate default[s] 'should be viewed with great
    
    liberality,'" N.J. Div. of Youth & Family Servs. v. P.W.R., 
    410 N.J. Super. 501
    , 508 (App. Div. 2009) (quoting Marder v. Realty
    
    Constr. Co., 
    84 N.J. Super. 313
    , 319 (App. Div. 1964)) and trial
    
                                      6                          A-4973-14T4
    courts are vested with sound discretion to grant or deny such
    
    motions but should resolve all doubts in favor of a party seeking
    
    relief,   Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting
    
    Ass'n, 
    132 N.J. 330
    , 334 (1993).      When we review a trial court's
    
    exercise of discretion, "[t]he question is only whether the trial
    
    judge pursued a manifestly unjust course."        Gittleman v. Cent.
    
    Jersey Bank & Trust Co., 
    103 N.J. Super. 175
    , 179 (App. Div.
    
    1967), rev'd on other grounds, 
    52 N.J. 503
     (1968).              We cannot
    
    conclude from our review of the record that the trial court pursued
    
    a manifestly unjust course in vacating default here.
    
         Similarly, we review a trial court's evidentiary rulings for
    
    an abuse of discretion.    Villanueva v. Zimmer, 
    431 N.J. Super. 301
    , 310 (App. Div. 2013); Benevenga v. Digregorio, 
    325 N.J. Super. 27
    , 32 (App. Div. 1999) (citing State v. Erazo, 
    126 N.J. 112
    , 131
    
    (1991)), certif.   denied, 
    163 N.J. 79
       (2000);   Bitsko    v.   Main
    
    Pharmacy, Inc., 
    289 N.J. Super. 267
    , 284 (App. Div. 1996) (citing
    
    Ratner v. Gen. Motors Corp., 
    241 N.J. Super. 197
    , 202 (App. Div.
    
    1990)).   We will not reverse a trial court's evidentiary rulings
    
    absent a palpable abuse of discretion, that is, the court's
    
    decision "was so wide of[f] the mark that a manifest denial of
    
    justice resulted."   Green v. N.J. Mfrs. Ins. Co., 
    160 N.J. 480
    ,
    
    492 (1999) (quoting State v. Carter, 
    91 N.J. 86
    , 106 (1982)).
    
    Applying those standards, we find that none of the trial court's
    
                                      7                               A-4973-14T4
    evidentiary rulings require such findings of manifest injustice.
    
    Consequently, the outcome of the trial should not be set aside.
    
        Affirmed.
    
    
    
    
                                   8                          A-4973-14T4