PAUL RICHMAN VS. A COUNTRY PLACE CONDOMINIUM ASSOCIATION, INC. (C-000210-16, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-2685-18T2
PAUL RICHMAN,
Plaintiff-Appellant,
v.
A COUNTRY PLACE
CONDOMINIUM ASSOCIATION,
INC., A COUNTRY PLACE
CONDOMINIUM ASSOCIATION
BOARD OF DIRECTORS, BARRY
FRISCHMAN, BARRY HERTZ,
ISAAC HOLTZ, FAY ENGLEMAN,
LIVIA COHEN, OCEAN
MANAGEMENT GROUP, JACK
SCHMIDT, ELI SCHWARTZ,
JESSICA SCHACH, JOE GRUEN,
GARY EISENBERGER,
and MILTON NUEMAN,
Defendants-Respondents,
and
UNITED PAVING CONTRACTORS,
Defendants.
and
A COUNTRY PLACE
CONDOMINIUM ASSOCIATION,
INC., A COUNTRY PLACE
CONDOMINIUM ASSOCIATION
BOARD OF DIRECTORS, BARRY
FRISCHMAN, BARRY HERTZ,
ISAAC HOLTZ, FAY ENGLEMAN,
LIVIA COHEN, OCEAN
MANAGEMENT GROUP, JACK
SCHMIDT, ELI SCHWARTZ,
JESSICA SCHACH, JOE GRUEN,
GARY EISENBERGER, and
MILTON NUEMAN,
Defendants/Third-Party
Plaintiffs-Respondents,
v.
UNITED PAVING CONTRACTORS,
Third-Party Defendant.
________________________________
Submitted November 2, 2020 – Decided November 23, 2020
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No. C-
000210-16.
Paul Richman, appellant pro se.
Costigan & Costigan, attorneys for respondents
(Angela Maione Costigan, on the brief).
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Methfessel & Werbel, attorneys for respondents as to
Counts 11, 12 and 13 only (Christian R. Baille, of
counsel and on the brief).
PER CURIAM
Plaintiff appeals from two orders: a February 16, 2018 order granting
plaintiff's counsel's motion to be relieved as counsel; and a January 11, 2019
order granting summary judgment in favor of A Country Place Condominium
Association, Inc. (ACP), ACP Board of Directors (Board), Board members in
their individual capacity, and Ocean Management Group (OMG) (collectively
defendants) dismissing all of plaintiff's nineteen claims. The judge did not abuse
his discretion by granting plaintiff's counsel's motion to be relieved as counsel,
and the judge correctly granted summary judgment in favor of defendants as to
all claims except plaintiff's New Jersey Law Against Discrimination (LAD)
claim. We therefore affirm and reverse only as to the LAD claim, pointing out
that the Court of Appeals for the Third Circuit in Curto v. A Country Place
Condo. Ass'n, Inc., 921 F.3d 405 (3d Cir. 2019) reversed the District Court's
decision on which the judge substantially and erroneously relied to dismiss the
LAD claim.
Plaintiff is a resident of ACP. In September 2016, through prior counsel,
plaintiff filed an eight-count complaint against defendants, followed by a first-
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and second-amended complaint in December 2016. Plaintiff's allegations
include malicious prosecution, breach of contract, tortious interference with
easements, ouster, violations of the New Jersey Condominium Act (NJCA),
violations of the LAD, negligent property damage, and breach of fiduciary duty,
among multiple other claims.
In February 2018, plaintiff's counsel filed a motion to be relieved as
counsel. The judge granted that motion, and plaintiff proceeded pro se. In
September 2018, defendants filed their motion for summary judgment, and in
January 2019, after conducting oral argument, the judge granted the motion and
rendered a thorough oral opinion.
On appeal, plaintiff raises the following points for our consideration 1:
POINT I
Malicious Prosecution (harassment, emotional distress
– plaintiff and wife death, etc.)[.]
POINT II
Breach of [C]ontract/[D]eclaratory Judgment
(settlement term)[.]
1
Defendants ask us to dismiss plaintiff's appeal for failure to comply with the
appellate rules. We decline to do so. We granted plaintiff's motion to accept
his appellate brief "as is." Additionally, dismissal of an appeal is the most
drastic sanction and should be cautiously utilized, see Crispin v.
Volkswagenwerk A.G., 96 N.J. 336, 345 (1984). Dismissal is inappropriate
here.
A-2685-18T2
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POINT III
Breach of an [I]mplied [C]ovenant of [G]ood [F]aith
and [F]air [D]ealing[.]
POINT IV
Tortious [I]nterference [W]ith [E]njoyment of an
[E]asement (Trespassing/ACP took away my
membership rights)[.]
POINT V
Ouster (Trespassing/could not go to clubhouse)[.]
POINT IV
Tortious [I]nferference [W]ith [E]njoyment of an
[E]asement (Trespassing)[.]
POINT VII
Ouster (Trespassing)[.]
POINT VIII
Tortious [I]nterference [W]ith [E]njoyment of an
[E]asement (Pool)[.]
POINT IX
Breach of [NJCA], N.J.S.A. 46:8B-1 et seq. (Pool)[.]
POINT X
Violation of the [LAD] (Pool)[.]
POINT XI
Negligent Property Damage (Driveway/loss of
magazines)[.]
POINT XII
Breach of [NJCA], N.J.S.A. 46:8B-1 et seq[.]
(Driveway/loss of magazines)[.]
A-2685-18T2
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POINT XIII
Breach of Master Deed and By-Laws, N.J.S.A. 46:8B-
1 et seq[.] (Roof)[.]
POINT XIV
Breach of [NJCA], N.J.S.A. 46:8B-14 et seq[.]
(Roof)[.]
POINT XV
Breach of Master Deed and By-[L]aws. N.J.S.A. 46:8B-
1 et seq[.] (Roof)[.]
POINT XVI
Breach of [NJCA], N.J.S.A. 46:8B-1 et seq[.]
(Elections)[.]
POINT XVII
Breach of Fiduciary Duty, N.J.S.A. 46:8B-1 et seq[.]
POINT XVIII
Breach of the By-Laws, N.J.S.A. 46:8B-1 et seq[.]
POINT XIX
Breach of Fiduciary Duty, N.J.S.A. 48:8B-1 (Self-
Dealing/Sewage)[.]
Plaintiff amended his appeal to include the following contention, which we have
renumbered:
[POINT XX]
[The judge abused his discretion when he granted
plaintiff's counsel's motion to be relieved as counsel.]
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I.
We begin by addressing plaintiff's argument that the judge erred in
granting his counsel's motion to be relieved. Plaintiff notes his numerous
disagreements with assertions contained in his former counsel's certification.
Defendants argue that the judge properly relieved plaintiff's counsel because
there was "obvious friction between plaintiff and his counsel and a deterioration
of the attorney[-]client relationship." We conclude that the judge did not abuse
his discretion by granting plaintiff's attorney's motion to be relieved as counsel.
See Jacob v. Pendel, 98 N.J. Super. 252, 255 (App. Div. 1967) (noting that "[t]he
granting of [counsel's] leave by the court is generally in the discretion of the
court").
Withdrawal is governed by Rule 1:11-2. In a civil action, once a trial date
has been fixed an attorney may only "withdraw without leave of court . . . upon
the filing of the client's written consent," among other things. R. 1:11-2(a)(2).
Without the client's consent, counsel may only withdraw after giving notice to
their client and with leave of court, and the withdrawal must be based on one of
the permissible bases provided in the Rules of Professional Conduct (RPC). R.
1:11-2(a)(2); R.P.C. 1.16(b). Permissible reasons for terminating representation
provided in the RPC include if "withdrawal can be accomplished without
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material adverse effect on the interests of the client" or if "the client insists upon
taking action that the lawyer considers repugnant or with which the lawyer has
a fundamental disagreement[.]" R.P.C. 1.16(b)(1), (b)(4).
Plaintiff's attorney asserted that being relieved as counsel would not have
a materially adverse effect on plaintiff's interests because he filed his motion to
be relieved during the discovery phase, where there would be ample time to
retain counsel that is "just as competent, if not more so" to handle the case.
Additionally, plaintiff's attorney and his firm "fundamentally disagree[d]" with
plaintiff and his desired courses of action because the "firm has no experience
in [condominium association law.]" Plaintiff and his attorney initially agreed
that they would pursue a malicious prosecution claim against defendants;
however, plaintiff soon demanded that they add eighteen additional claims to
the complaint in areas of law that the attorney and his firm do not practice.
Plaintiff's attorney "urg[ed] [p]laintiff to seek other counsel more familiar with
condominium association law on numerous occasions," both in letters and
meetings, but to no avail. We see no abuse of discretion by granting the motion,
especially since the motion had been made well before the discovery end date ,
the withdrawal did not have a materially adverse effect on plaintiff's interests,
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and there were clear fundamental disagreements between plaintiff and his
counsel.
II.
We now turn to the order granting summary judgment, which we review
under the same standard that governed the motion judge. Templo Fuente De
Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J 189, 199 (2016).
Summary judgment is appropriate where "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 th e
moving party is entitled to a judgment or order as a matter of law." Ibid.(quoting R. 4:46-2(c)).
We view the evidence "in the light most favorable to the non-moving
party" to determine whether it is "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). Although we "must
accept as true all the evidence which supports the position of the party defending
against the motion and must accord him . . . the benefit of all legitimate
inferences which can be deduced therefrom," id. at 535 (quoting Lanzet v.
Greenberg, 126 N.J. 168, 174 (1991)), "[c]onclusory and self-serving assertions
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. . . are insufficient to overcome the motion." Sullivan v. Port Auth. of N.Y. &
N.J., 449 N.J. Super. 276, 283 (App. Div. 2017) (quoting Puder v. Buechel, 183
N.J. 428, 440-41 (2005)). "If the evidence is so one-sided that one party will
prevail as a matter of law, summary judgment should be granted." New Gold
Equities Corp. v. Jaffe Spindler Co., 453 N.J. Super. 358, 372 (App. Div. 2018).
Considering the judge's reliance on the District Court's reasoning in Curto
to grant summary judgment in favor of defendant on plaintiff's LAD claim,
which was subsequently reversed by the Third Circuit, we reverse only as to that
claim. As to the remaining claims, we affirm for the reasons expressed in the
judge's thorough and comprehensive oral opinion. We add the following
remarks.
A. Malicious Prosecution
Plaintiff argues that he sufficiently proved that the 2014 lawsuit brought
against him by Rose Hallum (Hallum) and the 2016 lawsuit brought against him
by Jessica Schach (Schach), both Board secretaries, satisfied the requirements
of malicious prosecution by ACP. Defendants argue that plaintiff did not satisfy
his burden of proof that the litigation was initiated without probable cause. We
affirm the judge's grant of summary judgment as to plaintiff's malicious
prosecution claim because there was probable cause to institute the proceedings
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and because Hallum and Schach agreed to dismiss their complaints with
stipulations in their individual capacities.
Malicious prosecution arises when a person "recklessly institutes criminal
proceedings without any reasonable basis[.]" Lind v. Schmid, 67 N.J. 255, 262
(1975). To succeed on a claim of malicious prosecution, a plaintiff must
establish: "(1) that the criminal action was instituted by the defendant against
the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of
probable cause for the proceeding, and (4) that it was terminated favorably to
the plaintiff." Ibid. (citations omitted). "The essence of the cause of action is
lack of probable cause, and the burden of proof rests on the plaintiff. The
plaintiff must establish a negative, namely, that probable cause did not exist."
Id. at 262-63.
There was sufficient probable cause for Hallum's harassment complaint
against plaintiff. The judge noted that Hallum included "a police report,
certifications, [and] a report of probable cause" along with her complaint. The
judge also noted that although Hallum and Schach worked as Board secretaries,
they agreed to dismiss their claims with stipulations in their individual
capacities, and not in their capacity as employees of ACP or the Board. Because
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ACP or the Board were not a party to the dismissal agreement, a malicious
prosecution claim cannot be maintained against them.
B. LAD
Plaintiff argues that the swimming pool schedule that set times for
swimming based on gender violates the LAD. Plaintiff points to the Third
Circuit's decision in Curto, 921 F.3d 405 (3d Cir. 2019), reversing the District
Court's grant of summary judgment. In granting the LAD claim, the judge relied
heavily on the District Court's analysis and decision.
In Curto, the District Court was asked to determine whether ACP's rules
segregating the use of the swimming pool by sex violated the Fair Housing Act
(FHA). Curto v. A Country Place Condo. Ass'n, No. 16-5928, 2018 U.S. Dist.
LEXIS 15394, at *10 (D.N.J. Jan. 31, 2018). The District Court granted
summary judgment in favor of ACP on the plaintiff's FHA claim because "the
gender-segregation schedule applies to men and women equally." Id. at *12.
The District Court dismissed plaintiff's LAD claim as moot because the court
had already remanded the present case to the Superior Court, where the same
pool policy was being challenged under LAD. Id. at *12-13.
The Third Circuit reversed, holding that the rules enacted by ACP
"discriminate[d] against women in violation of the FHA." Curto, 921 F.3d at
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407. The swimming pool schedule permitted men to swim 32.5 hours of the
week and permitted women to swim 33.5 hours of the week, with the remainder
being nonsegregated swimming time. Id. at 409. However, the Third Circuit
was concerned with the way in which the hours were allocated; for example,
"women are able to swim for only 3.5 hours after 5:00 p.m. onward on
weeknights, compared to 16.5 for men." Id. at 410. The court explained that
these sorts of restrictions "appear[] to reflect particular assumptions about the
roles of men and women" which are impermissible under the Fourteenth
Amendment. Id. at 410-11. Thus, even though ACP provided roughly the same
amount of time to both genders, "the schedule discriminates against women
under the FHA[.]" Id. at 411.
Disparate impact claims brought under the LAD mirror the analysis of
disparate impact claims under the FHA. The New Jersey Supreme Court has
"not suggest[ed] that the disparate impact analysis under the LAD would be any
different from a disparate impact analysis under case law construing [the FHA]."
In re Adoption of 2003 Low Income Housing Tax Credit Qualified Allocation
Plan, 369 N.J. Super. 2, 42 (App. Div. 2004). Therefore, "[t]here is no reason
to believe that the disparate impact analysis [under the FHA] would be any
different under the LAD." Id. at 42-43. The Third Circuit in Curto noted that
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"[w]here a regulation or policy facially discriminates on the basis of the
protected trait, in certain circumstances it may constitute per se or explicit
discrimination because the protected trait by definition plays a role in the
decision-making process." Curto, 921 F.3d at 410 (citation omitted). And in
such a case, a showing of malice is not required when "a plaintiff demonstrates
that the challenged action involves disparate treatment through explicit facial
discrimination" because "the focus is on the explicit terms of the
discrimination." Ibid. (citations omitted).
The judge relied on the District Court's reasoning in Curto that the
swimming pool schedule violated the FHA to find that the schedule does not
result in disparate treatment under the LAD. The judge was "satisfied and
persuaded by [the District Court's] opinion that . . . for the reasons stated in that
opinion, there is no separate treatment. There is no disparate treatment . . . on
its face." In light of the reversal, the judge's reliance on the District Court's
analysis is misplaced, and summary judgment on the LAD claim here was
erroneously granted.
C. Negligent Property Damage to Plaintiff's Garage
Plaintiff argues that ACP is liable for the damage to his garage and
destruction of memorabilia because of flooding that occurred after United
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Paving Contractors (UPC) resurfaced his driveway. Plaintiff argues that he does
not need to provide an expert report in this case because "[i]f an expert is needed,
it is ACP['s] decision." Defendants argue that the judge properly granted their
motion for summary judgment because UPC is an independent contractor for
which ACP is not liable, and plaintiff failed to provide an expert report. Because
it was necessary for plaintiff to file an expert report regarding driveway
resurfacing to show UPC's alleged negligence, and because UPC was an
independent contractor, we affirm the judge's grant of summary judgment as to
these claims.
Employers are not liable for the negligent actions of the independent
contractors except in cases where the work performed by the independent
contractor is inherently or abnormally dangerous. Bahrle v. Exxon Corp., 145
N.J. 144, 156-57 (1996) (noting that liability when performing inherently or
abnormally dangerous activities "stems from a non-delegable duty to exercise
reasonable care"). An independent contractor is "a person 'who, in carrying on
an independent business, contracts to do a piece of work according t o his own
methods without being subject to the control of the employer as to the means by
which the result is to be accomplished but only as to the result of the work.'" Id.A-2685-18T2
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at 157 (quoting Wilson v. Kelleher Motor Freight Lines, Inc., 12 N.J. 261, 264
(1953)).
"In general, expert testimony is needed where the factfinder would not be
expected to have sufficient knowledge or experience and would have to
speculate without the aid of expert testimony." Torres v. Schripps, Inc., 342
N.J. Super. 419, 430 (App. Div. 2001) (citing Kelly v. Berlin, 300 N.J. Super.
256, 268 (App. Div. 1997)). "A witness must be shown to have certain skills,
knowledge or training in a technical area in order to be qualified to give expert
testimony." Ibid. (citing N.J.R.E. 702).
The judge properly noted that plaintiff cannot prevail on these claims
because he "has not served any expert reports stating that [UPC] deviated from
any standards of care that proximately caused plaintiff's damages[.]" A typical
juror would not have sufficient knowledge or experience to know whether UPC
negligently resurfaced plaintiff's driveway without expert testimony. Nor can
ACP be held liable for UPC's negligence if there was proof that they were
negligent in their resurfacing the driveway. UPC was an independent contractor
hired by ACP to perform driveway resurfacing, work that could not be
categorized as inherently or abnormally dangerous.
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Affirmed in part, reversed in part, and remanded. We do not retain
jurisdiction.
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