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

NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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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.
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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
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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
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evidentiary rulings require such findings of manifest injustice.
Consequently, the outcome of the trial should not be set aside.
Affirmed.
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