OCEAN CLUB CONDOMINIUM ASSOCIATION v. MICHAEL D'AMATO, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0175-04T30175-04T3

OCEAN CLUB CONDOMINIUM ASSOCIATION,

Plaintiff,

vs.

MICHAEL D'AMATO and

LISA D'AMATO (on counterclaim only),

Defendants,

and

MICHAEL D'AMATO and

LISA D'AMATO (on counterclaim only),

Third Party Plaintiffs-Appellants/

Cross-Respondents,

vs.

CITY OF ATLANTIC CITY; WILLIAM ALLEN,

officer with the Atlantic City Police,

individually; OCEAN CLUB CONDOMINIUM

ASSOCIATION BOARD MEMBERS, HOWARD

BARSKY, President, MYLES HORWITZ,

SEYMOUR SMITH, VINCENT LAMBIASE,

BRUCE WEISS, BARRY KAPLAN,

individually, jointly, severally and

in the alternative,

Third Party Defendants,

and

OCEAN CLUB CONDOMINIUM ASSOCIATION,

Third Party Defendant/

Fourth Party Plaintiff-Respondent/

Cross-Appellant,

vs.

LEGION INSURANCE COMPANY, ATLANTIC

MUTUAL INSURANCE COMPANIES, and

SECURITY ELEVATOR COMPANY,

Fourth Party Defendants,

and

LERCH BATES NORTH AMERICA, INC.,

Fourth Party Defendant-Respondent.

_______________________________________

 

Argued: February 14, 2006 - Decided August 14, 2006

Before Judges Cuff, Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Atlantic County, Docket No. L-4000-98.

John M. Donnelly argued the cause for appellants/cross-respondents (Levine, Staller, Sklar, Chan & Donnelly, attorneys; Kevin J. McCabe and Mr. Donnelly, on the brief).

Mauro C. Casci argued the cause for respondent/cross-appellant, Ocean Club Condominium Association (Mauro C. Casci, attorney; Russell Macnow, on the brief).

DeNoia and Tambasco, attorneys for respondent, Lerch Bates North America, Inc. (Thomas DeNoia, on the brief).

PER CURIAM

Michael and Lisa D'Amato are residents of a penthouse in a condominium in Atlantic City. They appeal from an order granting summary judgment to the condominium association and dismissing their claims for nuisance due to elevator noise and compensatory damages for damage to the unit caused by water infiltration. We affirm.

The litigation commenced on January 14, 1998, when Michael D'Amato filed a complaint against Ocean Club Condominium and Ocean Club Condominium Association (Association) in which he sought compensatory damages following the rupture of a water pipe connected to the air handling unit of the building. On February 25, 1998, the Association filed a complaint against Michael D'Amato in which it sought to enjoin D'Amato from attending meetings of the Association. By order dated June 12, 1998, the two cases were consolidated. Soon thereafter, Michael D'Amato filed a counterclaim in which he sought damages for the harm caused by the burst pipe, water infiltration, nuisance elevator noise, and his exclusion from Association meetings. In short order, the complaints were de-consolidated and several months later, the property damage and nuisance claims were severed from the controversy concerning Michael D'Amato's involvement in Association affairs.

Eventually, the action commenced by the Association and the claim for damages from the ruptured pipe were settled. Following several amendments to the pleadings and a period of inactivity due to related insurance coverage litigation and the insolvency of the Association's insurance carrier, the Association filed a motion for summary judgment. The July 27, 2004 order granting that motion is the subject of this appeal.

Mr. and Mrs. D'Amato owned four condominium units in the Ocean Club condominium complex. Ocean Club consists of two residential towers; each tower has three elevators. Two of the units, 3 404 I and 3404 II, are penthouse units located adjacent to the elevator shafts and below the elevator equipment room. The couple purchased 3 404 I in 1991 and resided in the unit for six months each year. They bought the unit sight unseen but learned of problems with the elevators in both towers before the transaction closed. The second unit, 3404 II was used as a rental property until they sold it in 1998.

In 1997, the elevators in both towers were renovated to address persistent service complaints. The couple testified that they heard noise from the elevators before the renovation, but the noise increased following the renovation, particularly in the master bedroom. The D'Amatos remarked that the noise was more annoying after the renovation project because the elevator motors stopped and started. It is undisputed that noise from the elevator motors is audible in unit 3404 I. It is also undisputed that the building code of the City of Atlantic City establishes a 45 decibel level and that the elevator motor noise in the master bedroom is marginally above that level at 47 decibels. Michael and Lisa D'Amato complained that the noise interrupts their sleep and interferes with their enjoyment of the premises.

Both units 3 404 I and 3404 II suffered water damage. The damage, caused when a pipe ruptured in Tower I, was resolved in an earlier settlement. In addition, the D'Amatos claimed that both penthouse units suffered water damage from infiltration of water through the exterior walls. Although Michael D'Amato obtained estimates to repair the damage to the interior walls of his units, he did not retain those records.

The D'Amatos contended that the elevator motor noise and the water infiltration diminished the value of both units. The D'Amatos did not retain a real estate appraiser to testify to the value of the premises. Rather, Michael D'Amato contended that he had sufficient expertise to offer an opinion on the diminution in value.

In her July 27, 2004 oral opinion, Judge Higbee first addressed the noise complaint. She noted that for purposes of the motion she would assume that the sound level in unit 3 404 I was 47 decibels, a couple of decibels above the limit established by the city building code. She then addressed two of the defenses asserted by the Association.

First, Judge Higbee referred to the concession at oral argument that plaintiffs had no evidence to distinguish the damage caused by the burst pipe and the infiltration. Therefore, she held that the Association was entitled to summary judgment on the water infiltration claim.

As to the elevator noise complaint, the judge rejected the contention that the noise complaint was barred by the statute of limitations. She found that the noise was not necessarily a permanent condition because there was a consensus that the problem could be remediated, although she noted that there was a difference of opinion about the remedy and acknowledged that there was not a definitive remedy proposed by either party or its cost. The remediable nature of the problem belied the Association's contention that it was a permanent condition and that the current complaint asserted by the D'Amatos was time barred.

Judge Higbee also ruled that a unit owner can sue the Association for either injunctive relief or damages under appropriate circumstances. On the other hand, the judge ruled that the D'Amatos failed to marshall the appropriate proofs to allow the noise complaint to proceed against the Association. She noted that the noise measurements in the unit were marginally above the code requirements. She also found that the D'Amatos had no evidence of a specific remedy or its cost to alter the noise levels of the elevator and bring the noise levels within building code requirements. Furthermore, plaintiffs had not retained an expert to provide an opinion that the noise levels have diminished the value of the units and that Michael D'Amato lacked the expertise to provide an opinion on diminution of value. The judge concluded her oral opinion as follows:

To be a nuisance you have to weigh the reasonableness of the efforts of the defendant, the reasonableness of what they've done, then you have to weigh the discomfort to the plaintiff. And then you have to make a determination whether there is a nuisance which really should be required to be abated. And the plaintiff simply doesn't have enough evidence to put that in. He has no evidence on damages. No evidence on diminution of value, property. In fact, the only person who is qualified he can't bring in. We have no evidence of the cost of repair or how it could be repaired or what it would cost.

On appeal, this court applies the same standard as the trial court when it reviews an order granting summary judgment. Gen. Accident Ins. Co. v. N.Y. Marine and Gen. Ins. Co., 320 N.J. Super. 546, 553 (App. Div. 1999); Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "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." R. 4:46-2(c). When considering whether there is a genuine issue of material fact, it must be determined whether the evidence presented as part of the motion, when viewed in the light most favorable to the non-moving party, is enough to allow a rational factfinder to find in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We need not address the issue raised by the Association in its cross-appeal, that is, whether a condominium unit owner may maintain a cause of action for nuisance against the condominium association. It appears to be an issue of first impression in this state and an issue we need not reach because we conclude, as did Judge Higbee, that plaintiffs could not prove their nuisance complaint and that summary judgment was properly entered in favor of the Association.

A "nuisance" is an unreasonable interference with one's use and enjoyment of his land. Rose v. Chaikin, 187 N.J. Super. 210, 216 (Ch. Div. 1982) (citing Sans v. Ramsey Golf and Country Club, 29 N.J. 438, 448-49 (1959)). The utility of defendant's conduct must be weighed against the harm suffered by plaintiff. Ibid. Noise may be an actionable nuisance as long as two requirements are satisfied. Id. at 217. First, there must be "injury to the health and comfort of ordinary people in the vicinity" and second, there needs to be "unreasonableness of that injury under all the circumstances." Ibid. "'[T]he character, volume, frequency, duration, time, and locality are relevant factors'" in the determination of whether noise constitutes a nuisance. Ibid. (quoting Lieberman v. Saddle River Twp., 37 N.J. Super. 62, 67 (App. Div. 1955)). The utility of defendant's conduct is another relevant factor that should be considered. Id. at 217.

In Rose, homeowners sought to enjoin the operation of a windmill. Id. at 214. The plaintiffs complained that the noise produced by the windmill was offensive and resulted in stress and an interference with their ability to enjoy their homes. Ibid. In Rose, the fairly constant noise exceeded the noise ordinance by six to eleven decibels. Id. at 215. The court found that the windmill was an actionable nuisance. Id. at 218. In reaching this conclusion, the court found that the sound was quite abnormal in the normally quiet, residential neighborhood. Ibid. The fact that the noise was relatively constant also weighed in the court's conclusion. Ibid. The court also found that the benefits of the windmill were outweighed by the resulting harm it caused and there were alternative devices available to defendant. Id. at 219-20.

In Malhame v. Borough of Demarest, 162 N.J. Super. 248, 251 (Law Div. 1978), residents sought to enjoin the use of a fire alarm siren system. Although the court found that the sound of the siren was in fact a nuisance, it decided not to enjoin the use of the siren system because the plaintiffs were unable to demonstrate that the nuisance "could be abated without transferring the same injurious consequences to some other residents. . . ." Id. at 266. In balancing the public's need to be protected from fire against the plaintiffs' injuries from the siren system, the court determined that the public need outweighed that of the plaintiffs and "plaintiffs would have to continue to suffer for the common good." Id. at 264.

To succeed on their actionable private nuisance claim, the D'Amatos first needed to show injury to their health or comfort. Although the couple presented no medical evidence of injury to their health, each complained about loss of sleep. An expert measurement of the decibel level in their apartment revealed a noise level that was two decibels above code, a level the judge referred to as "borderline over the city code." There is no evidence that other residents, "ordinary people in the vicinity," experienced "injury to the[ir] health and comfort." Rose, supra, 187 N.J. Super. at 217. The D'Amatos failed to present any evidence of their injury or discomfort. Moreover, at the time, the couple owned other properties in the complex and it would have been possible for them to move to a unit that was not affected by the elevator noise. The couple chose not to move because Mrs. D'Amato did not like the size or layout of the alternatives and did not want to deal with the hassle of moving. This inaction seems to indicate that the noise was a mere annoyance rather than a nuisance, and mere annoyance is not enough to reach the "unreasonableness" standard. See, e.g., Malhame, supra, 162 N.J. Super. at 261. Thus, the couple presented insufficient evidence to satisfy the first element of an actionable private nuisance.

Additionally, the couple also fails under the second element; they have failed to demonstrate that the injury is unreasonable in all circumstances. Rose, supra, 187 N.J. Super. at 217. Like Malhame, the need for the elevators in this 34-story building outweighs the discomfort the D'Amatos have experienced. The elevators are necessary and in light of the history of elevator malfunctions and the difficulty in obtaining replacement parts for the original equipment, it is undisputed that the elevators needed to be repaired. The D'Amatos presented no evidence of an alternative or evidence of the cost to abate the condition. As the judge recognized, some noise is to be expected. Like the Malhame plaintiffs whose comfort had to be sacrificed for the public need, the need for dependable elevator service outweighed the D'Amatos' injuries.

Plaintiffs also failed to prove that they had sustained any economic damage. The couple produced an appraiser, but the report was of little help in quantifying their claim that the noise caused a diminution in value. The appraiser opined that the elevator noise would have an adverse impact on the value of unit 3404 I and that the value of the unit was approximately $335,000, if it was in average condition. The appraiser, however, did not offer an opinion of the value of the unit in its present condition. In fact, he stated that he was unable to quantify the adverse impact of the elevator noise on the value of the unit. He said, "[i]t would be my opinion that [the elevator noise and water penetration problems] have an adverse affect [sic] on the market value of the property. The appraiser can not quantify how much these items affect value by standard accepted appraisal techniques." Approximately eighteen months later, the appraiser amended his report to opine that the value of the unit was between $360,000 and $370,000. Once again, he offered no opinion of the value of the unit in its current condition.

Furthermore, Judge Higbee correctly held that Michael D'Amato was not able to offer an opinion on the value of the unit. A witness's "knowledge, skill, experience, training or education" may qualify him as an expert. See N.J.R.E. 702. The proposed "expert must 'be suitably qualified and possessed of sufficient specialized knowledge to be able to express [an expert opinion] and to explain the basis of that opinion.'" State v. Moore, 122 N.J. 420, 458-59 (1991) (quoting State v. Odom, 116 N.J. 65, 71 (1989)). The proposed expert must possess the technical training and knowledge needed to give a meaningful and reliable opinion. Hake v. Manchester Twp., 98 N.J. 302, 314 (1985). "When the subject matter of the testimony falls distinctly within the province of a particular profession, the witness should generally be a licensed member of that profession." State v. Frost, 242 N.J. Super. 601, 615 (App. Div.), certif. denied, 127 N.J. 321 (1990).

Judges in this state have been cautioned against setting a value for property without an expert appraisal. Jacobitti v. Jacobitti, 263 N.J. Super. 608, 613 (App. Div. 1993), aff'd, 135 N.J. 571 (1994). Michael D'Amato, however, attempted to testify as an expert to the diminution in the value of his property. D'Amato, however, is not a licensed real estate appraiser, and did not know what qualifications were needed to qualify. D'Amato stated that it was his experience and educational background that qualified him as an expert in real estate appraisal. Specifically, he had taken a course in real estate appraisal, two years of pre-law and economics courses and had spent years as a construction supervisor. Yet, Michael D'Amato was unable to describe the method he used to quantify any loss in value. Accordingly, Judge Higbee did not err in finding that Michael D'Amato was not qualified to render an opinion. For the same reason, Michael D'Amato's opinion on value does not qualify as a lay opinion.

Finally, we affirm the dismissal of the water penetration claims. As noted, Judge Higbee ruled that the Association was entitled to summary judgment on this aspect of the claim because plaintiffs had failed to obtain estimates of damages or failed to retain documentation of remediation efforts and costs. Plaintiffs bore the burden of proving damages. Caldwell v. Haynes, 136 N.J. 422, 436 (1994). In some instances, it is sufficient to base damages on estimates if the evidence allows the jury to do so with a reasonable degree of certainty. Grillo v. Bd. of Realtors, 91 N.J. Super. 202, 230 (Ch. Div. 1966). Here, however, plaintiffs did not provide a reasonable basis to allow the assessment of damages based on estimates. Therefore, we hold that summary judgment was properly entered in favor of the Association on this claim.

Affirmed.

 

The court noted that the sound levels were "well documented and clearly exceed[ed] permissible limits under the zoning ordinance." Rose, supra, 187 N.J. Super. at 218.

Plaintiffs presented no evidence of physical harm suffered because of the siren system. Malhame, supra, 162 N.J. Super. at 252.

(continued)

(continued)

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A-0175-04T3

August 14, 2006