JAMAL COREY HAND VS. CITY OF PATERSON, ETC. (L-3024-18, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2891-19
JAMAL COREY HAND and
230-232 SUMMER STREET,
LLC, a New Jersey Limited
Liability Company,
Plaintiffs-Appellants,
v.
CITY OF PATERSON, a
political subdivision of the
State of New Jersey,
Defendant-Respondent.
________________________
Submitted January 19, 2021 – Decided March 12, 2021
Before Judges Messano and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-3024-18.
Frederick Coles, III, attorney for appellants.
Lite DePalma Greenberg, LLC, attorneys for
respondent (Victor A. Afanador and Jonathan M.
Carrillo, on the brief).
PER CURIAM
In August 2017, plaintiff Jamal Corey Hand purchased a multi-family
property (the Property) in Paterson (the City). The deed from Wilmington
Savings Fund Society, FSB, to plaintiff listed his address as the Property's
address. At the time, the structure on the Property had been severely damaged
by a 2015 fire, was uninhabited and deemed abandoned by the City. In March
2018, plaintiff transferred the property by deed to 230-232 Summer Street, LLC,
a limited liability company in which he was the sole member.1 The deed —
from plaintiff as grantor — used his personal address in Prospect Park and the
LLC's address — as grantee — as the Property's.
Plaintiff received notice from the City declaring the Property an imminent
hazard and directing plaintiff to demolish the structure by a certain date. For
reasons we soon explain, plaintiff claimed to have believed the demolish-by-
date in the notice was April 27, 2020, two years in the future. When plaintiff
failed to demolish the structure, the City did so on May 4, 2018, at a cost of
$21,230; it filed a demolition lien on the Property.
1
We refer to both plaintiffs in the singular throughout the balance of this
opinion.
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Plaintiff filed suit, alleging the City's notice provided him with two years
in which to demolish the structure. He claimed the City was negligent, and
N.J.S.A. 52:27D-132 and N.J.A.C. 5:23-2.32, cited in the City's notice as
authority for the demolition, did not apply. Plaintiff sought a declaration that
the City's actions were unlawful, as well as damages and counsel fees. The City
filed an answer and counterclaim. 2
Discovery ensued. Plaintiff moved for partial summary judgment on
liability; the City cross-moved for summary judgment and to enforce its
demolition lien. Judge Frank Covello denied plaintiff's motion and granted the
City summary judgment, explaining his reasons in a comprehensive written
decision. Following a subsequent proof hearing on the papers, Judge Covello
entered judgment in favor of the City against both plaintiff and the LLC for
$21,230.
Plaintiff appeals. He contends Judge Covello recognized there was a
genuine factual dispute as to the demolish-by-date in the City's notice, and
therefore summary judgment was inappropriate. Plaintiff also argues that
2
The City's earlier motion to dismiss the complaint and for enforcement of its
lien were denied.
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N.J.S.A. 52:27D-132 and N.J.A.C. 5:23-2.32 did not permit the City's action
under the facts in this case.
The City argues Judge Covello properly found it was immune from
liability under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. It also
contends that N.J.S.A. 52:27D-132 and N.J.A.C. 5:23-2.32 authorized
demolition of the structure, and the judge's findings regarding the demolition
notices were supported by the evidence in the motion record.3
Having considered the parties' arguments, the motion record and
applicable legal standards, we affirm.
I.
We review the grant of summary judgment de novo, applying the same
standard used by the trial court, which
mandates that summary judgment be granted "if 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 the moving party is entitled to
a judgment or order as a matter of law."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R.
4:46-2(c)).]
3
Plaintiff's reply brief does not directly address the City's TCA argument.
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A dispute of material fact is "genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the motion, together
with all legitimate inferences therefrom favoring the non-moving party, would
require submission of the issue to the trier of fact." Grande v. Saint Clare's
Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38
(2014)). "[W]hen the movant is the plaintiff, the motion court must view the
record with all legitimate inferences drawn in the defendant's favor and decide
whether a reasonable factfinder could determine that the plaintiff has not met its
burden of proof." Globe Motor Co. v. Igdalev, 225 N.J. 469, 481 (2016)
(emphasis added).
We owe no deference to the trial court's legal analysis, The Palisades at
Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017)
(citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)), and we limit our review to the motion record before Judge Covello. See
Ji v. Palmer, 333 N.J. Super. 451, 463–64 (App. Div. 2000) (appellate review of
the grant of summary judgment is limited to the record that existed before the
motion judge (citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188
(1963))).
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After plaintiff recorded the deed to the Property, the City's Law
Department sent him a letter at the Property address dated September 28, 2017,
notifying plaintiff the Property was included on the list of abandoned properties
and deemed "in need of rehabilitation." The City informed plaintiff that to
remove the Property from the list, "all conditions that led the property to be
placed on the list [we]re required to be addressed. A rehabilitation plan must be
submitted . . . [and] all necessary permits for rehabilitation of the property must
be applied for." The letter asked plaintiff to contact the City within fourteen
days and enter into a rehabilitation agreement and attached an earlier Inspection
Form from May 2017 that listed the problems. There is no evidence plaintiff
responded to the letter and, in his deposition, plaintiff stated that he never
submitted a rehabilitation plan because he "never got to that point." 4
In January 2018, the City inspected the Property again and completed
another Inspection Form, which reiterated the conditions found and recorded in
May 2017, and which again indicated the Property was in need of rehabilitation.
In March 2018, the City attempted to serve plaintiff with a Notice of Imminent
4
Plaintiff was not questioned about this letter during his deposition. His
counsel stipulated at deposition that the Property was on the abandoned
properties list, and, in his statement of material facts supporting his motion for
partial summary judgment, plaintiff admitted that he received the September 28,
2017 letter.
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Hazard (the March Notice) signed by the City's construction official at the
Property's address, which was also plaintiff's address in the City's tax records
for the Property. Because the Property was vacant, the notice, sent by certified
mail, was returned undelivered. Nothing in the record reflects plaintiff received
it.
The City again attempted to serve the Notice of Imminent Hazard, now
dated April 25, 2018 (the April Notice), by certified mail at plaintiff's Prospect
Park address. The City contended that plaintiff accepted service and, during his
deposition, showed him a copy of the return receipt. Plaintiff denied that was
his signature or the signature of anyone in his house. 5 Nevertheless, plaintiff
testified he did receive the April Notice by regular mail but could not remember
when.
The April Notice was identical to the March Notice, which had ordered
plaintiff to demolish the structure by April 27, 2018. The April Notice cited the
earlier inspection, as well as N.J.S.A. 52:27D-132 and N.J.A.C. 5:23-2.32, and
stated:
CONDITIONS EXIST IN THE BUILDING WHICH
ARE DANGEROUS AND INJURIOUS TO THE
HEALTH AND SAFETY TO THE OCCUPANTS
AND REISDENTS OF NEIGHBORING BUILDINGS
5
The return receipt is not in the record.
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OF THE CITY OF PATERSON THAT INCLUDE THE
FOLLOWING: DEFECTS THEREIN INCREASING
THE HAZARDS OF FIRE, ACCIDENTS, OR OTHER
CALAMITIES. ALSO[,] THE STRUCTURE IS IN
DILAPIDATION, DISREPAIR, HAS STRUCTURAL
DEFECTS, AND UNCLEANLINESS.
The April Notice provided that pursuant to N.J.A.C. 5:23-2.32(b)(5), the City
could take necessary action at plaintiff's expense if he failed to act. It also told
plaintiff that he must "immediately declare to the Construction Official, [his]
acceptance or rejection of the terms . . . ," of the order, and if he wished to
contest the order, he was required to seek "a stay to a court of competent
jurisdiction within [twenty-four] hours." Critically, the demolish-by-date in the
April Notice was obscured. A copy of the date as it appeared in the April Notice
is an appendix to this opinion.
Plaintiff testified at his deposition that the April Notice gave him two
years, i.e., until April 27, 2020, to demolish the structure. He acknowledged
doing nothing in response to the April Notice, and he was unaware of the
demolition until he visited the Property and saw the structure was gone.
II.
A.
Plaintiff contends we should reverse both the order denying his motion for
partial summary judgment on liability and the order granting the City summary
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judgment. He contends that the demolish-by-date in the April Notice was April
27, 2020, or, alternatively, that Judge Covello improperly applied summary
judgment standards to find it was not.
In his written opinion, Judge Covello stated:
There is no question that the [demolition-by-] date is
no[t] 04/27/2020. The year, although partly obliterated
by some sort of typographical character, is most
certainly not 2020. The third number is not as obscured
as the fourth number and is undoubtedly the number
"1." What is unclear, though, is what the final number
is . . . . The final number does not appear to be an "8."
In other words, Judge Covello did not conclude what was the demolish-by-date
in the April Notice; he only concluded the demolish-by-date definitively was
not April 27, 2020, as plaintiff asserted and continues to assert. Judge Covello
did not misapply summary judgment standards in so deciding.
No reasonable factfinder could conclude that the April Notice provided
plaintiff more than two years to demolish a structure which had been on the
City's abandoned property list for more than one year and presented a public
hazard. To succeed on summary judgment on this point, plaintiff bore the
burden of demonstrating that when all legitimate favorable inferences were
drawn in the City's favor, the disputed fact — the demolish-by-date in the April
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Notice — must be resolved in plaintiff's favor. Globe Motor Co., 225 N.J. at
481. Obviously, based on the document itself, plaintiff did not carry that burden.
B.
Judge Covello granted the City's motion "[d]espite a typographical error
on the [N]otice" because plaintiff's "'perceived' belief that this [N]otice allowed
him to renovate and abate the property more than a year after his acquisition of
a property already listed on an abandoned properties list, does not permit him to
avoid the clear language of the substance of the [N]otice . . . ." The April Notice
required plaintiff to "immediately declare to the Construction Official, [his]
acceptance or rejection of the terms . . . ," or apply for a stay of the demolition
to a court, all of which he failed to do. Plaintiff's claim that he intended to
rehabilitate the structure, even if credible, was not significant, because the April
Notice required plaintiff "to demolish the structure . . . . The box checked off is
not the one that would require him to remove hazards or take steps to render [it]
safe." The judge found plaintiff failed to exercise due diligence and repeatedly
failed to take necessary action.
Plaintiff contends that the City was not entitled to demolish the structure
pursuant to N.J.S.A. 52:27D-132 and N.J.A.C. 5:23-2.32, the statute and
regulation cited in the April Notice. He argues that because N.J.S.A. 52:27D-
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132 only applies to enforcement of construction permits, and, because plaintiff
had not secured any permits, the statute provided no authority for the demolition .
Therefore, the judge should have granted plaintiff summary judgment on
liability and denied the City's motion.
N.J.A.C. 5.23-2.32 details the requirements a construction official must
meet to notify a property owner of an unsafe structure and the emergency
measures he or she may take in the event the structure presents an immediate
danger.
When, in the opinion of the construction official, there
is actual and immediate danger of collapse or failure of
a building or structure or any part thereof which would
endanger life, the construction official shall cause the
necessary work to be done to render such building or
structure or part thereof temporarily safe, whether or
not the legal procedure herein has been instituted. Such
work may include such demolition as may be necessary
in order to eliminate any actual and immediate danger
to human life; provided, however, that any demolition
work shall not commence until at least [twenty-four]
hours following service of notice of the pending
demolition upon the owner, unless such service is not
possible because the identity or the address of the
owner cannot be determined from public records. Upon
expiration of the [twenty-four]-hour period, demolition
may proceed unless stayed by order of the Superior
Court.
[N.J.A.C. 5.23-2.32(b)(2) (emphasis added).]
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Plaintiff correctly notes that N.J.S.A. 52:27D-132 relates to inspection of
construction undertaken pursuant to a permit. It provides, in relevant part:
a. The enforcing agency shall periodically inspect all
construction undertaken pursuant to a construction
permit . . . .
....
c. If the construction of a structure or building is being
undertaken contrary to the provisions of a construction
permit, this act, the code, or other applicable laws or
ordinances, the enforcing agency may issue a stop
construction order in writing . . . .
d. When an inspector or team of inspectors finds a
violation of the provisions of a construction permit, the
code, or other applicable laws and regulations at an
owner-occupied single-family residence, and issues a
notice of violation and an order to terminate the
violation, the enforcing agency shall require the same
inspector or team of inspectors who found the violation
to undertake any subsequent reinspection thereof at the
premises.
[N.J.S.A. 52:27D-132 (emphasis added).]
Without citing any authority, plaintiff argues that because the April Notice
used the conjunctive — "and" — when citing the statute and regulation, both
apply; since plaintiff had not secured any construction permit for the Property,
the City had no right to demolish the structure.
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The argument requires us to construe the language of the April Notice, but
it ignores, for example, our discussion in Garden State Land Co. v. City of
Vineland, 368 N.J. Super. 369 (App. Div. 2004). There, we were required to
interpret N.J.S.A. 40:48-2.5, which enables a municipality to enact demolition
ordinances that require service of notice "upon the owner of and parties in
interest in such a building." Id. at 377–78 (quoting N.J.S.A. 40:48-2.5(b)). The
statute defined "parties in interest" as those individual and business entities
"who have interests of record in a building and any who are in actual possession
thereof." Id. at 378 (quoting N.J.S.A. 40:48-2.4(e)) (emphasis added). The
municipality argued that the statute required a party in interest to both "possess
an interest of record and also be in actual possession." Ibid. We rejected the
argument.
[A]lthough the language of a statute is to be construed
as written, "[t]he words 'or' and 'and' are ofttimes used
interchangeably, and the determination of whether the
word 'and' as used in a statute should be read in the
conjunctive or disjunctive depends primarily upon the
legislative intent." The context of the language and the
words surrounding the disputed portion can be used to
evidence an intention to create a disjunctive meaning.
[Ibid. (second alteration in original) (quoting Pine Belt
Chevrolet, Inc. v. Jersey Cent. Power & Light Co., 132
N.J. 564, 578 (1993)).]
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Here, the April Notice stated plaintiff's property was "an imminent hazard
. . . pursuant to N.J.S.A. 52:27D-132 and N.J.A.C. 5:23-2.32." (emphasis added).
The logical construction of the notice is that the property met the standards for
being declared an imminent hazard under either, and the notice did not otherwise
limit the City's options on how to proceed. The City also points out that the
April Notice is the form notice that construction officials must use to issue a
Notice of Imminent Hazard. See N.J.A.C. 5:23-4.5(b)(2) ("[F242 Notice of
Imminent Hazard] standardized form[] established by the Commissioner [is]
required for use by the municipal enforcing agency . . . .").
Judge Covello specifically recognized that N.J.A.C. 5:23-2.32 was
promulgated pursuant to N.J.S.A. 52:27D-131.1(a)(2), which granted the City
authority to demolish the structure on plaintiff's property. Plaintiff's contention
that the judge erred in citing this statute, because the April Notice failed to do
so, lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). 6
We affirm the order denying plaintiff summary judgment and the order
granting the City summary judgment.
6
Similarly, plaintiff's claim that it was error for Judge Covello to employ a
magnifying glass in an attempt to ascertain the demolish-by-date in the April
Notice requires no discussion.
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III.
For the sake of completeness, we address the City's claim that it was
immune from liability pursuant to the TCA. Judge Covello agreed. He cited
N.J.S.A. 59:3-6, which provides that a public employee is immune from liability
for any injury caused by his or her "order, or similar authorization where he [or
she] is authorized by law to determine whether or not such authorization should
be issued." The judge cited N.J.A.C. 5:23-2.32(b)(2), which permits the
issuance of an order to demolish a structure "[w]hen, in the opinion of the
construction official, there is actual and immediate danger of collapse or failure
of a building or structure or any part thereof which would endanger life . . . ."
Judge Covello reasoned that if the City's construction official was immune, so
was the City. See N.J.S.A. 59:2-2(b) ("A public entity is not liable for an injury
resulting from an act or omission of a public employee where the public
employee is not liable."); Crystal Ice-Bridgeton, LLC v. City of Bridgeton, 428
N.J. Super. 576, 586 (App. Div. 2012) (where fire chief was not liable under the
TCA for failing to seek demolition permit requiring twenty-four-hour's notice
to the building's owner before ordering the partial demolition, but acted in good
faith pursuant to statutory authority in conducting emergency firefighting
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operation, of a building, the City was also not liable). We agree entirely with
this analysis.
Plaintiff does not directly address the issue of TCA immunity in his brief
or reply brief. Instead, he argues the claim against the City was not a negligence
claim but rather an allegation that the City violated his due process rights.
Judge Covello noted, and we agree, that plaintiff never pled such a cause
of action. The judge observed that plaintiff's complaint specifically pled
negligence and referenced plaintiff's compliance with the notice provisions of
the TCA. Nevertheless, the judge addressed plaintiff's argument, raised in
opposition to the City's asserted TCA immunity defense, that the City had
unlawfully deprived him of his property without proper notice. We again agree
with Judge Covello's reasoning in this regard and affirm for the reasons he
expressed.
Affirmed.
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APPENDIX
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