THE BRIARCLIFF OWNERS, INC. v. DAVID GARY LANGER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3689-03T33689-03T3

THE BRIARCLIFF OWNERS, INC.,

Plaintiff-Respondent,

v.

DAVID GARY LANGER

Defendant-Appellant.

___________________________________

 
 
Argued telephonically February 27, 2006 - Decided March 13, 2006

Before Judges Lintner and Parrillo.

On Appeal from the Superior Court of New Jersey, Chancery Division, Bergen County,

C-371-00

David Gary Langer, appellant, argued the cause pro se.

Robyn Nolan Howlett argued the cause for respondent (Stark & Stark, attorneys; David J. Byrne, of counsel; Ms. Howlett, on the brief).

PER CURIAM

On July 6, 1998, defendant, David Gary Langer, filed a complaint in the Chancery Division against plaintiff, Briarcliff Owners, Inc., (Briarcliff) owner of the Cooperative (Coop) where Langer resided, alleging that he was denied the right to purchase shares in the Coop and that Briarcliff failed to provide handicap accommodations for Langer's disability. A consent order was entered permitting Langer to purchase shares in the Coop and amend his complaint to include a claim for money damages for Briarcliff's alleged failure to provide handicap accommodations. The matter was transferred to the Law Division. On May 25, 2000, the parties entered into a settlement agreement, which was placed on the record. A written settlement agreement was executed by both parties on July 24, 2000, and a stipulation of dismissal with prejudice was entered on August 23, 2000.

On November 13, 2000, Briarcliff filed a preemptive complaint in the Chancery Division seeking a declaratory judgment that the terms of the settlement agreement were deemed satisfied. Langer filed an answer and counterclaim seeking civil damages under the agreement. The matter was tried before Judge Escala over a three-day period from March 24 to March 26, 2003. On January 29, 2004, following the receipt of written summations, Judge Escala issued a written decision finding that Briarcliff had "substantially completed," within the time constraints of the settlement agreement, the various repairs previously agreed upon by the parties. Langer appeals pro se, essentially asserting that the decision was contrary to the credible evidence in the record. We reject Langer's contentions and affirm.

Under the terms of the July 24, 2000, Settlement Agreement, Briarcliff was required to:

1. [P]ay to LANGER within five (5) days of receipt of mutually executed General Releases the sum of $5,000.00.

2. [D]o the following:

a. Install two automatic doors accessible to a person on a scooter or in a wheelchair on the middle level from the parking area to the elevator lobby.

b. Install an intercom (wheelchair accessible) at the entrance area of the middle level parking area to communicate to the front desk.

c. LANGER will retain parking space #59 presently marked as a handicapped space located immediately adjacent to the building entrance. BRIARCLIFF will repair or remove insulation and cure any leaks which cause water or debris to fall in the area of the space and/or install a protective device above the space which is large enough to protect LANGER'S vehicle and enough area adjacent to it for ingress and egress from falling debris and/or water. BRIARCLIFF shall maintain the protective device for as along as it is necessary to employ the same.

d. Install a buzzer (wheelchair accessible) at the lobby, outside the [front] southernmost door (not revolving door) to the front desk.

e. Maintain the doors called for in 2(a) in working order and make any repairs within a reasonable period of time when a door is not in working condition. BRIARCLIFF shall provide alternate access if doors are impassable, which allows LANGER alternative access to the building. The doors shall be installed and in working condition within 45 days of May 25, 2000 unless BRIARCLIFF obtains [notice] from the manufacturer of a delivery problem.

f. BRIARCLIFF will investigate options to place a ramp at the upper level parking area. If site work requiring removal, configuration or excavation of the cement curb is being done in that area, handicap access ramps will be installed at that location (rear door) if it can be done without violating any applicable building code or ordinance. BRIARCLIFF will also continue to police the garbage area so that the existing ramp (which is used for access to the dumpster) is not blocked.

g. Ensure that the exercise room door and facility be made and maintained as handicap accessible. The present configuration of the exercise room is acceptable to LANGER.

h. In the event the work set forth in 2(a)(b)(c) and (d) is not substantially completed within 45 days of May 25, 2000 (excepting delays caused by unavailability of doors certified to by the manufacturer), a civil penalty in the amount of $2,500.00 per day shall be payable by BRIARCLIFF to LANGER for each day after the 45th day until the work is completed. (emphasis added).

Langer asserted at trial that Briarcliff failed to meet its obligations and was in substantial breach of the Agreement. However, Christopher West, Briarcliff's property manager from April 20, 1998, until May 22, 2002, testified that the $5000 was paid. West also testified that he saw to the installation of a heavy plastic liner over Langer's parking area to ensure that no water or debris would fall into the area immediately after the settlement. He also hired a contractor, ordered the two self-closing, handicap-rated doors, contracted for necessary electrical work to make the doors operational and to install a doorbell and intercom. These items were all operational by July 5, 2000. Gail Davis, West's successor, confirmed the installation of the automatic door openers as well as Langer's use of the doors. Davis testified that the doors have required some routine adjustments; however, no extraordinary maintenance has been necessary.

Although Langer argues on appeal that "there were never any automatic and/or accessible doors installed at The Briarcliff," he gave the following testimony at trial:

Q Now, there was an automatic door installed on your level. Is that right?

A Two.

Q Two automatic doors. And do you know when those doors were installed and became operative?

A Yes, I do.

Q Do you know the date on which those doors became operative?

A Between the second and third week in July they became operative. They were not operational on July 9th, the deadline for the 45 day limitation in the settlement agreement.

At trial, Langer contradicted the testimony given by West and Davis, claiming the doors were not wheelchair accessible, the intercom did not work when installed, that the garage repair did not resolve the problem of water and debris, and a bell was installed at the front desk instead of a buzzer. He did not know when the intercom became operable only that he knew it was not operable the day before the compliance deadline.

Rejecting Langer's contention that the agreement contemplated that the work had to completed within the forty-five-day period, Judge Escala observed that the term "substantially" as used in the agreement "excluded the notion of absoluteness or completeness" but conversely, contemplated "that the work would be well on its way to completion, or almost complete, or mostly done." Accepting the testimony of West and Davis as credible, Judge Escala found that there was no doubt that the work required by the agreement, specifically, the installation of the wheelchair accessible automatic doors, the intercom, the buzzer, and the ramp, were substantially accomplished as contemplated by the agreement within the time requirements called for in the agreement.

Judge Escala's factual findings are supported by sufficient credible evidence in the record as a whole. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); In re Will of Liebl, 260 N.J. Super. 519, 523 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993). Credibility is always for the fact-finder to determine, Ferdinand v. Agricultural Insurance Co., 22 N.J. 482, 492 (1956), and we will not make independent credibility determinations unless the trial judge's reasoning was not articulated and cannot be inferred from the record, State v. Locurto, 157 N.J. 463, 472-75 (1999). A judge's findings and conclusions are entitled to great deference in light of the judge's opportunity to perceive the witnesses and assess their credibility, and should not be disturbed unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); accord Liebl, supra, 260 N.J. Super. at 524.

These bedrock principles of appellate review are particularly applicable here. Our careful review of the entire record leads us to the inescapable conclusion that Judge Escala's decision is supported by credible evidence in the record. Langer's contention to the contrary is legally and factually devoid of sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). Accordingly, we affirm.

 

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A-3689-03T3

March 13, 2006