FERNANDO A. PORTES VS. EILEEN MARKENSTEIN (L-1335-18, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0319-18T1
FERNANDO A. PORTES,
Plaintiff-Appellant,
v.
EILEEN MARKENSTEIN,
DALIAH AMAR, GEORGE
DOERRE, HENRY KADEN,
MICHAEL CANBERG,
TROY TOWERS CORPORATION,
FS RESIDENTIAL, and TJ LEGG,
Defendants-Respondents,
and
THE STATE OF NEW JERSEY,
Defendant.
__________________________________
Argued telephonically June 3, 2020 –
Decided June 22, 2020
Before Judges Fuentes, Haas and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1335-18.
Fernando A. Portes, appellant, argued the cause pro se.
Brandon D. Minde argued the cause for respondents
Eileen Markenstein, Daliah Amar, George Doerre,
Henry Kaden, Michael Canberg, Hudson Troy Towers
Corporation and FS Residential (Dughi Hewit
Domalewski PC, attorneys; Suzanne D'Amico
Brodock, on the brief).
Christopher Kennedy Harriott argued the cause for
respondent TJ Legg (Florio Kenny Raval LLP,
attorneys; Christopher Kennedy Harriott, on the brief).
PER CURIAM
Plaintiff Fernando A. Portes appeals from the Law Division's September
7, 2018 order denying his motion for reconsideration of a June 22, 2018 order
that had granted a motion filed by the "Troy Towers defendants" 1 to dismiss his
complaint against them. Plaintiff also appeals from the court's March 15, 2019
order granting the motion filed by the remaining defendant, municipal
prosecutor T.J. Legg, to dismiss the complaint. We affirm.
1
The Troy Towers defendants include: Hudson Troy Towers Corporation; its
property manager, Michael Canburg; the company Canburg works for, FS
Residential; members of its Board of Directors, George Doerre, Daliah Amar,
and Eileen Markenstein; and another co-op resident, Henry Kaden. Plaintiff
does not challenge the court's June 22, 2018 order dismissing its complaint
against defendant State of New Jersey. Therefore, the State is not a party to this
appeal.
A-0319-18T1
2
Plaintiff is a shareholder in Hudson Troy Towers Corporation, which is a
residential co-op. On a number of occasions over the past several years, plaintiff
has sought an elected position on the Troy Towers' Board of Directors (Board).
However, the Board did not permit him to run for this office after he violated
the Board's rules by including disparaging comments about other candidates in
the candidate biographies he submitted.
Plaintiff filed three lawsuits against the Troy Towers defendants alleging,
among other things, that these defendants had discriminated against him by
refusing to permit him to participate as a candidate in the Board's elections. The
trial courts dismissed all three of these complaints, with the last dismissal
occurring in April 2015.
In April 2018, plaintiff filed a fourth complaint against the Troy Towers
defendants, raising claims that were identical to those that were litigated and
decided in the prior litigation. Plaintiff also alleged that Legg, while acting as
a municipal prosecutor, discriminated against him on the basis of his race by
prosecuting him for an alleged violation of a no-contact order a court had entered
between plaintiff and one of the Board members.
The Troy Towers defendants filed a motion to dismiss the portions of the
complaint pertaining to them. After plaintiff failed to respond to the complaint,
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the trial judge granted the motion on June 22, 2018, and dismissed plaintiff's
complaint against the Troy Towers defendants with prejudice. In so ruling, the
judge explained, "This unopposed motion is granted as it appears that these very
same issues although involving different years, were already litigated and the
other counts do not state a cause of action."
Plaintiff filed a motion for reconsideration of the June 22, 2018 order.
Following oral argument, the same denied the motion in an order issued on
September 7, 2018. "A motion for reconsideration is designed to seek review
of an order based on the evidence before the court on the initial motion, R. 1:7-
4, not to serve as a vehicle to introduce a new evidence in order to cure an
inadequacy in the motion record." Capital Fin. Co. of Del. Valley, Inc. v.
Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (citing Cummings v. Bahr,
295 N.J. Super. 374, 384 (App. Div. 1996)). Thus, reconsideration should only
be granted in those cases in which the court had based its decision "upon a
palpably incorrect or irrational basis," or did not "consider, or failed to
appreciate the significance of probative, competent evidence." Granata v.
Broderick, 446 N.J. Super. 449, 468 (App. Div. 2016) (quoting D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
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Applying these standards, the judge explained in his thorough oral
decision that plaintiff failed to demonstrate that the dismissal of his complaint
was premised "upon a palpably incorrect or irrational basis," or that the court
failed to consider the evidence and legal arguments he presented. Instead,
plaintiff simply repeated the identical arguments he raised in the prior
proceedings, which had all already been dismissed.
Legg subsequently moved for summary judgment and sought to dismiss
the portions of the complaint pertaining to him. Legg argued that as a municipal
prosecutor, he was entitled to qualified immunity for his actions in prosecuting
plaintiff for contempt of the no-contact order. Following oral argument, a
second judge granted Legg's motion and dismissed plaintiff's complaint wi th
prejudice on March 15, 2019.
In his comprehensive written decision, the judge explained that the
doctrine of qualified immunity shields government officials like Legg from
liability for civil damages while they are performing discretionary functions,
unless their conduct violates established statutory or constitutional rights "of
which a reasonable person would have known. Morillo v. Torres, 222 N.J. 104,
116 (2015) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))." Here, Legg
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was a municipal prosecutor and, in that position, the judge found he had
"absolute discretion [in deciding] whether to bring charges" against plaintiff.
The judge further found that plaintiff failed to present any evidence that
Legg violated his statutory or constitutional rights. The judge stated,
[Legg] evaluated the alleged violations of the no-
contact order, and decided that [p]laintiff's conduct was
in violation of the no-contact order. The mere
allegation of racial discrimination by [p]laintiff is not
supported by evidence, and so it cannot be said [Legg]
violated a clearly established statutory or constitutional
right. Plaintiff simply cites articles to show white
privilege and racial biases exist. Plaintiff cites to
incidents before several [j]udges that have absolutely
no bearing to the violation of the no-contact order and
subsequent investigation only.
The [c]ourt finds [Legg] is entitled to qualified
immunity. Plaintiff cannot demonstrate objective bad
faith and subjective bad faith.
This appeal followed.
On appeal, plaintiff raises the same arguments he unsuccessfully pressed
before the trial court. Having considered these contentions in light of the record
and the applicable law, we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the September
7, 2018 and March 15, 2019 orders substantially for the reasons set forth by the
two judges in their respective decisions.
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We add only the following comment. In his appellate brief, plainti ff
alleges for the first time, without citing any competent evidence whatsoever,
that one of the judges who presided over this matter was biased against him.
Appellate courts review legal arguments addressed to claimed errors by trial
courts. Criticism of trial judges who made rulings adverse to the party filing an
appeal do not constitute proper appellate argument. A party's contention that a
trial judge was unfair or biased "cannot be inferred from adverse rulings against
a party." Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008).
Based on our review of the appellate record, we conclude that both judges
accorded plaintiff a full opportunity to present evidence and arguments in
support of his claims. Each judge treated plaintiff in a respectful and
professional manner throughout the proceedings before them. Therefore, we
reject plaintiff's unsupported contentions to the contrary.
Affirmed.
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