Lisa Pesci v. Township of Parsippany ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0952-23
LISA PESCI,
Plaintiff-Appellant,
v.
TOWNSHIP OF PARSIPPANY,
Defendant-Respondent.
____________________________
Argued September 11, 2024 – Decided September 20, 2024
Before Judges Mayer and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-1647-20.
John E. Horan argued the cause for appellant (Horan &
Aronowitz, LLP, attorneys; John E. Horan, on the
briefs).
Scott D. Salmon argued the cause for respondent
(Jardim Meisner Salmon Sprague & Susser, PC,
attorneys; Scott D. Salmon, of counsel and on the brief;
Tracy L. Lucas, on the brief).
PER CURIAM
Plaintiff Lisa Pesci appeals from an October 20, 2023 order granting
summary judgment in favor of defendant Township of Parsippany-Troy Hills
(Township)1 and dismissing her complaint with prejudice. We affirm.
We recite the facts from the motion record. In 1978, plaintiff purchased
a home in the Township. She installed a swimming pool on her property around
1979 and undertook repairs to the pool in 2000 and again in 2015.
Plaintiff complained to the Township about drainage issues affecting her
property in 2004. In 2014, the Township addressed water run-off issues by
installing a drain pipe in the cul-de-sac abutting plaintiff's home. In 2018, the
Township voluntarily installed a drainage system to address water issues in the
plaintiff's backyard, even though the Township had no legal obligation to do so.
According to plaintiff, when the Township installed a drainage pipe in the
backyard, she discovered her swimming pool suffered damage due to the long-
standing drainage issues. Additionally, plaintiff asserted the Township removed
shrubbery and mature foliage when it undertook drainage work in her backyard.
Further, plaintiff contended the Township's vehicles damaged her driveway
when the Township installed the backyard drain.
1
Plaintiff incorrectly designated defendant as Township of Parsippany.
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2
Plaintiff demanded the Township restore her property and filed a May 31,
2019 notice of tort claim. In August 2020, plaintiff sued the Township, alleging
it "failed to maintain and negligently repaired [a] drainage system on [p]laintiff's
property and the cul-de-sac where [p]laintiff's property is located." After the
close of discovery, the Township moved for summary judgment.
In the October 20, 2023 order and accompanying written statement of
reasons, the motion judge granted the Township's motion. The judge found a
private developer constructed plaintiff's home between 1978 and 1979. The
judge noted the cul-de-sac, constructed by the same private developer, caused
water to drain toward plaintiff's home.
The judge found plaintiff did not report any drainage issues to the
Township until 2004. After plaintiff reported the drainage problems, the
Township twice "inspected, snaked, and removed tree roots from the drain as a
favor to [p]laintiff." Plaintiff denied the Township advised the drain was not
part of the Township's drainage system despite performing work on it.
The judge noted the Township, with plaintiff's approval, installed a
drainage system in plaintiff's backyard around June 2018. 2 While the Township
2
The Township certified its drainage work in plaintiff's backyard "cost the
Township approximately $50,000 to $80,000."
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admitted removing some shrubs during the installation of the backyard drainage
system, the judge found plaintiff's removal of her pool on "her own volition"
impacted "mature foliage and landscape beds adjacent to the pool."
Based on these factual findings, the judge concluded plaintiff's drainage
claims were barred by the applicable statute of limitations, N.J.S.A. 24:14-1.
Under the statute, the judge explained plaintiff had six years to file her claims
against the Township.
The judge determined the statutory period of limitations began in 2004
when, by her own admission, plaintiff complained to the Township about
drainage issues affecting her property. Thus, to avoid the statutory bar, plaintiff
had to file her complaint no later than 2010. She did not file her complaint
against the Township until 2020.
Additionally, the judge concluded plaintiff failed to follow the procedures
under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, for filing a claim
against a public entity. Under N.J.S.A. 59:8-8(a), a claim for property damage,
as alleged by plaintiff here, must be presented no later than ninety days after
accrual of the cause of action.
In granting summary judgment to the Township, the judge concluded
plaintiff's "self-described" notice of claim, dated May 31, 2019, identified the
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occurrence giving rise to her claim "began approximately on or about 1990."
Additionally, the judge found plaintiff's certification stated "she complained [to
the Township] about the water problem on her property as early as 2004."
Relying on plaintiff's sworn statements to determine the accrual date for
plaintiff's drainage claims against the Township, whether asserted in 1990 or
2004, the judge determined plaintiff's drainage "claim [was] more than six years
old" and therefore barred by the statute of limitations.
The judge rejected plaintiff's argument that her drainage claims accrued
in 2018 when she removed her pool. The judge, citing plaintiff's certification in
opposition to summary judgment, concluded drainage problems predating 2018
caused "[t]he pool [to be] compromised beyond a regular repair" and was the
reason for removing the pool.
However, the judge determined plaintiff's claims regarding damage to her
driveway and backyard foliage, resulting from the Township's installation of a
new drainage system in 2018, were timely filed. As to those claims, the judge
found plaintiff failed to file a notice of claim within ninety days under the TCA.
Moreover, the judge concluded plaintiff never submitted an "affidavit showing
sufficient reasons constituting extraordinary circumstances for failure to timely
file the notice of claim."
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Regarding plaintiff's negligence claims against the Township, the judge
found plaintiff required an expert to establish causation and quantify her alleged
damages. The judge explained plaintiff's case "involved complex natural and
manmade conditions of real property as well as construction and engineering of
a drainage system in relation to a flooding problem" and required expert
testimony on the issue of causation. Similarly, the judge concluded plaintiff
required expert testimony to establish the measure of damages as "only an expert
can adequately speak to the appraisal value of real property." Without such
expert testimony, the judge determined summary judgment was appropriate and
dismissed plaintiff's negligence claims.
Regarding plaintiff's breach of contract claims, the judge concluded
plaintiff failed to establish the Township appropriated money to enter into a
contract for repairs to her property as required under N.J.S.A. 40A:4-57. The
Township denied any contract with plaintiff for the drainage work on her
property. Nor did plaintiff provide any evidence of a contract between herself
and the Township. The judge also found plaintiff's purported oral contract with
the Township would be "unenforceable" under N.J.S.A. 40A:4-57. Based on
these findings, the judge granted summary judgment to the Township on
plaintiff's contract-based claims.
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The judge also rejected plaintiff's misrepresentation claim against the
Township. According to plaintiff, the Township promised to restore her
backyard to its original condition after completing the drainage work. The judge
noted plaintiff never identified such a promise in her deposition testimony.
Additionally, the judge concluded plaintiff's misrepresentation claim was belied
by her certification in opposition to summary judgment, stating "she did not
approve or sign off on anything" and any work in the backyard was done by the
Township without plaintiff's input. Without any evidence of a misrepresentation
by the Township, the judge granted summary judgment on plaintiff's
misrepresentation claim.
Having found none of plaintiff's claims viable as a matter of law, the judge
dismissed plaintiff's complaint.
On appeal, plaintiff argues her claims are not time barred. 3 She also
asserts she presented sufficient evidence supporting her claims for negligence,
breach of contract, and misrepresentation. We reject these arguments.
3
In her reply brief, for the first time on appeal, plaintiff contends the discovery
rule tolled the statute of limitations on her claims against the Township. We
decline to consider an issue not properly presented to the trial court unless the
jurisdiction of the court is implicated or the matter concerns an issue of great
public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)
(citation omitted). Neither circumstance is present in this matter.
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We review a trial court's grant or denial of a motion for summary judgment
de novo, applying the same standard used by the trial court. Samolyk v. Berthe,
251 N.J. 73, 78 (2022). We consider "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." Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995).
Under N.J.S.A. 59:8-8, a claimant must file a notice of claim with a public
entity within ninety days of accrual of the claim. The ninety-day time period
may be extended under certain circumstances provided the claimant files a
motion to deem the notice of claim timely filed. N.J.S.A. 59:8-9. Such a motion
requires the claimant to: (1) present extraordinary circumstances for failing to
timely file the notice of claim; (2) submit the claim no later than one year from
the accrual date; and (3) demonstrate the absence of prejudice to the public entity
as a result of the late notice. Rogers v. Cape May Cnty. Off. of Pub. Def., 208
N.J. 414, 427-28 (2011). "After the one-year limitation has passed, the court is
without authority to relieve a plaintiff from his failure to have filed a notice of
claim, and a consequent action at law must fail." Pilonero v. Township of Old
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Bridge, 236 N.J. Super. 529, 532 (App. Div. 1989) (quoting Speer v. Armstrong,
168 N.J. Super. 251, 255-56 (App. Div. 1979)).
To determine whether a notice of claim was timely filed under N.J.S.A.
59:8-8, a court must decide "the date on which the claim accrued." Ben Elazar
v. Macrietta Cleaners, Inc., 230 N.J. 123, 133-34 (2017). A judge's
determination of the accrual date for a claim under the TCA begins with deciding
when the claim arose, followed by determining whether the claim was filed
within ninety days of the accrual date and, if not, whether extraordinary
circumstances justify the late notice of claim. Beauchamp v. Amedio, 164 N.J.
111, 118-19 (2000).
Having reviewed the record, we are satisfied the judge properly
determined plaintiff's drainage claims were untimely under the TCA. Giving
plaintiff every favorable inference, at the latest, plaintiff complained to the
Township about drainage issues affecting her property in 2004. However,
plaintiff did not file her purported notice of claim until May 2019, long after the
six-year statute of limitations applicable to her drainage claims elapsed.
Regarding plaintiff's claims arising from the Township's work on her
property in 2018, asserting negligence, breach of contract, and
misrepresentation, we are convinced the judge properly dismissed those claims.
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Plaintiff's notice of claim related to these damages was not filed within ninety
days as required under the TCA. Additionally, plaintiff failed to submit an
affidavit or certification demonstrating extraordinary circumstances for her
failure to timely file a notice of claim as to the work completed in 2018.
Even if we agreed plaintiff's notice of claim regarding the Township's
work on her property in 2018 was timely filed, which we do not, plaintiff still
required expert testimony to establish causation and quantify her damages.
Plaintiff lacked an expert to establish causation regarding the drainage issues
impacting her property. Nor did plaintiff provide any expert report to
substantiate the measure of damages affecting the value of her property. Absent
the requisite expert testimony, we are satisfied the judge appropriately granted
summary judgment as to plaintiff's negligence claims.
Similarly, the judge did not err in granting summary judgment on
plaintiff's contract claim. Plaintiff failed to establish she had any contract with
the Township for the work on her property in 2018. Contrary to plaintiff's
argument, a municipality may not enter into a contract absent compliance with
N.J.S.A. 40A:4-57. The statute requires a municipality to appropriate money
for municipal expenditures associated with specific contractual obligations. The
statute expressly provides "[a]ny contract made in violation hereof shall be null
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and void . . . ." N.J.S.A. 40A:4-57. Here, there was no contract because there
was no authorization by the Township approving any contract work and no
approval for the expenditure of public funds for such work. Thus, the judge
properly dismissed plaintiff's breach of contract claim.
Lastly, we consider the judge's decision granting summary judgment on
plaintiff's misrepresentation claim. On appeal, as she argued before the trial
court, plaintiff claimed the Township promised to restore her backyard to its
original condition after it completed the drainage work. However, during her
deposition, plaintiff never testified the Township made any such promise.
Further, plaintiff's misrepresentation claim fails based on her certification in
opposition to summary judgment, asserting "she did not approve or sign off on
anything" and any work in the backyard was done by the Township without her
input. Absent evidence of any misrepresentation by the Township, the judge
properly granted summary judgment as to her misrepresentation claim.
Affirmed.
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