MOHAMMAD SHAIKH v. CITY OF JERSEY CITY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2356-08T2
MOHAMMAD SHAIKH,
Plaintiff-Appellant,
v.
CITY OF JERSEY CITY,
Defendant-Respondent.
________________________________
Submitted: February 24, 2010 - Decided: March 11, 2010
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-3203-07.
Ronald Kurzeja, attorney for appellant.
William C. Matsikoudis, Corporation Counsel,
Jersey City Law Department, attorney for
respondent (Carmine J. Scarpa, Assistant
Corporation Counsel, on the brief).
PER CURIAM
Plaintiff Mohammad Shaikh appeals from summary judgment
dismissal of his complaint alleging breach of contract and
seeking specific performance arising out of his winning bids at
public auction on two lots owned by defendant, Jersey City. We
affirm.
Although the City's governing body accepted plaintiff's
$1500 bid on a property on Liberty Avenue1 and transferred title
to him, it rejected his $10,000 bid on a property on Eastview
Court. It is undisputed that at the time of the bid, April l8,
2007, plaintiff did not meet the conditions of the City's
Resolution 07-209, adopted March l4, 2007, which authorized the
sale of City owned property not needed for public use, as he was
delinquent in taxes and had code violations on property he owned
See ΒΆ 19 (c) and (d) (stating that no person shall be
there.
permitted to bid for any property to be sold by the City if such
person is delinquent in taxes or municipal charges on city
property or such person owns property in the city that has any
outstanding Property Maintenance or Uniform Construction Code
(UCC) violations). It is also undisputed that plaintiff
submitted an affidavit with his bid which stated to the
contrary, and that such affidavit was submitted "with the
express purpose of inducing the City to sell [Eastview Court] to
[him] knowing full well that the City relies on the truth of the
representations contained herein." At the April 25, 2007
meeting, City Council withdrew the Eastview Court property from
those properties confirmed for public sale under Resolution 07-
297, without explanation.
1
The sale was confirmed by Resolution 07-297 on April 25, 2007.
A-2356-08T2
2
On June 22, 2007, plaintiff filed a complaint against the
City asserting breach of contract and seeking damages and
specific performance, alleging the City failed to deliver title
to the Eastview property to him as the highest bidder.
Plaintiff did not file an action in lieu of prerogative writs
challenging the reasonableness of the bid conditions in
See R.
Resolution 07-209 or Council's action as to his bid.
4:69-1 to -6 (providing generally for a forty-five-day time
limitation for challenging municipal action). The City filed an
answer. While the case was pending, City Council sent a letter
to plaintiff's attorney, informing him that the decision to
reject the bid would be reconsidered at a December l9, 2007
Council meeting. Plaintiff's attorney made a presentation
before Council, after which it adopted Resolution 07-932,
affirming the rejection of plaintiff's bid. Council expressly
found that plaintiff was not a qualified bidder at the time of
sale due to his failure to comply with the conditions of
Resolution 07-209 because he was delinquent in the payment of
taxes and had existing UCC violations at the property he owned
at 4 Bidwell Avenue in Jersey City.
Prior to trial, the City filed a motion for summary
judgment, which was granted by Judge Iglesias following oral
A-2356-08T2
3
argument on December 5, 2008, and memorialized in an order of
that date. Plaintiff appealed.
Plaintiff asserts the following arguments on appeal:
POINT I.
DEFENDANT FAILED TO COMPLY WITH N.J.S.A.
40A:12-13(a) GOVERNING THE SALE OF REAL
PROPERTY NOT NEEDED FOR PUBLIC USE.
POINT II.
PLAINTIFF WAS ENTITLED TO NOTICE AND A
HEARING WHEN THE DEFENDANT SOUGHT TO REJECT
HIS SUCCESSFUL BID.
A. PLAINTIFF WAS NOT GIVEN NOTICE OF
THE APRIL 27, 2007 COUNCIL MEETING AND
WAS DENIED A HEARING WHEN HIS
SUCCESSFUL BID WAS REJECTED.
B. PLAINTIFF WAS GIVEN NOTICE OF THE
DECEMBER 19, 2007 COUNCIL MEETING BUT
WAS DENIED A MEANINGFUL HEARING WHEN
HIS SUCCESSFUL BID WAS REJECTED.
POINT III.
THE BIDDING CONDITIONS WERE UNREASONABLE AND
ARE THEREFORE UNENFORCEABLE AS CONDITIONS OF
THE CONTRACT.
POINT IV.
DEFENDANT WAIVED THE BID CONDITIONS WHEN IT
ACCEPTED PLAINTIFF'S BID AND DELIVERED THE
DEED FOR THE LIBERTY AVENUE (INSIDE)
PROPERTY.
POINT V.
DEFENDANT SHOULD BE REQUIRED TO DELIVER THE
DEED FOR THE EASTVIEW COURT PROPERTY SINCE
A-2356-08T2
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THE BEST INTEREST OF THE PUBLIC WILL BE
SATISFIED.
POINT VI.
THE COURT SHOULD HEAR AND DECIDE THE CASE AS
AN ACTION IN LIEU OF PREROGATIVE WRITS IN
ADDITION TO A BREACH OF CONTRACT/SPECIFIC
PERFORMANCE ACTION.
After reviewing the record and considering the applicable law,
Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540
(1995), we are not persuaded by any of plaintiff's arguments.
We affirm substantially for the reasons articulated by Judge
Iglesias in his comprehensive oral decision. We add the
following brief comments.
As plaintiff argued to the trial court, there are instances
where the statutory deadline for filing a prerogative writs
action may be extended; however, plaintiff did not file a
prerogative writs action. Instead, he filed a breach of
contract claim. Nevertheless, even though plaintiff did not
assert in his complaint a challenge to the bidding conditions of
Resolution 07-209, the court addressed this issue and found that
the conditions of sale were reasonable and supportive of a
lawful public purpose. We agree. A municipal ordinance, or in
this instance a resolution, is "accorded a presumption of
validity which can only be overcome by an affirmative showing
that [it] is arbitrary or unreasonable." Taxpayers Ass'n of
Weymouth Twp., Inc. v. Weymouth Twp.,
80 N.J. 6, 20 (1976),
A-2356-08T2
5
cert. denied,
430 U.S. 977,
97 S. Ct. 1672,
52 L. Ed. 2d 373
(1977). See also McGovern v. Bor. of Harvey Cedars,
401 N.J.
Super. 136, 146 (App. Div. 2008). Plaintiff has not articulated
a basis upon which to challenge the reasonableness of these
conditions. To the contrary, requiring potential purchasers to
be compliant with taxes and codes on properties they own in the
City clearly serves the public purpose and protects the
residents of Jersey City because it avoids the potential
circular problem of having the lots that have been sold become a
burden on the tax base or an eyesore or building hazard.
We are also satisfied, as the trial court noted, that even
if plaintiff were entitled to a hearing under Paragraph 12 of
Resolution 07-209, he was afforded one, albeit late. We do not
have the transcript of that hearing so we do not know what
plaintiff's attorney argued, but even if he asserted, as
plaintiff did to the trial court, that he executed the affidavit
under the good faith belief that he was compliant with the
conditions of the bidding resolution, the fact remains that he
was not. As plaintiff was not a qualified bidder as required by
Resolution 07-209, City Council was within its rights to reject
plaintiff's bid to purchase the Eastview Court property.
It is undisputed that City Council did approve the sale of
the Liberty Avenue parcel to plaintiff, perhaps through
A-2356-08T2
6
inadvertence or otherwise. However, plaintiff fails to assert
any legal basis for his contention that by doing so, the City
waived the delinquent real estate taxes and outstanding code
violation bidding conditions on the Eastview property, and was
contractually compelled to sell it to him.
Affirmed.
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