MARGO BADER v. TOWNSHIP OF MAHWAH and COUNTY OF BERGEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3871-06T23871-06T2

MARGO BADER, CLAUDIA PUZO, KARL

KAPLAN, EDWARD KOLAKOWSKI,

KATHERINE LEYON, STEVEN WEYL,

LINDA SEEMANN and BRUTT SEEMANN,

Plaintiffs-Appellants,

v.

TOWNSHIP OF MAHWAH and COUNTY OF

BERGEN,

Defendants-Respondents,

and

JOHN PATRICK O'GRADY, BARBARA

VENUSTI, JAMES VENUSTI, HAIG

ASADOURIAN, CHRISTINE ASADOURIAN,

FOX RIVER LLP, THOMAS DELOY, DONNA

DELOY, RICHARD SILVERSTEIN,

ROSEAYNN SILVERSTEIN, PHILIP

FILIPPONE, JULIA FILIPPONE, PATRICK

GENTEMPO, JR., LAURIE GENTEMPO,

CHRISTOPHER STATILE, JACK ZAKIM, LYDIA

ZAKIM, and STATE OF NEW JERSEY DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Defendants.

________________________________________________________________

 

Argued February 27, 2008 - Decided

Before Judges Cuff, Lisa and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5842-06.

David J. Byrne argued the cause for appellants (Stark & Stark, P.C., attorneys; Mr. Byrne, of counsel and on the brief; Jonathan H. Katz, on the brief).

Terry Paul Bottinelli argued the cause for respondent Township of Mahwah (Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, L.L.C., attorneys; Mr. Bottinelli, of counsel and on the brief; Thomas McGuire and Craig Bossong, on the brief).

Keith D. Barrack appeared on behalf of respondent County of Bergen (Florio Perrucci Steinhardt & Fader, L.L.C., attorneys, rely on the brief of respondent Township of Mahwah.)

PER CURIAM

Plaintiffs are residents and taxpayers of the Township of Mahwah. A portion of Midvale Mountain Road provides access to their homes. The road has existed since the 1800s, but Mahwah has never provided maintenance or repair services to the portion of the road in question. Mahwah has never taken any formal action to accept dedication of the disputed portion of the roadway, and Mahwah has consistently maintained that it has never engaged in activities that could be deemed to constitute implied acceptance. In their complaint, plaintiffs sought judgment compelling Mahwah to maintain the disputed portion of the road because it is a public road in Mahwah not owned by any other governmental entity. Plaintiffs also alleged that because Mahwah maintained and repaired other portions of Midvale Mountain Road, its refusal to maintain and repair the disputed portion violated equal protection and 42 U.S.C.A. 1983.

Whether Mahwah is obligated to maintain and repair the disputed section of road has been the subject of two prior lawsuits brought by plaintiffs, their predecessors in title, or other parties similarly situated. The first was commenced in 1980. After various trial court proceedings and two remands by this court, it resulted in a determination that plaintiffs failed to demonstrate that Mahwah owned the road. We affirmed that determination and concluded that "the Township of Mahwah is under no obligation to maintain and repair a road not owned by it." Gross v. Twp. of Mahwah, No. A-3066-82T2 (App. Div. May 17, 1984). A successor in title to Gross commenced another action in 1995, claiming that Mahwah's refusal to extend snow removal and other repair services to the disputed portion of the roadway was improper and seeking a determination of the parties' respective responsibilities for maintenance of the road. The Law Division granted Mahwah's motion for summary judgment and dismissed the action on November 8, 1996. There was no appeal.

The present matter came before Judge Harris on cross-motions for summary judgment on February 2, 2007. He found that no change in circumstances occurred since commencement of the first action in 1980. Mahwah had done nothing in the interim that could constitute express or implied acceptance of the road, and our 1984 affirmance of the first lawsuit continued to remain binding, with the effect that Mahwah was under no obligation to maintain or repair the road. Judge Harris found unpersuasive plaintiffs' effort to distinguish the concept of "responsibility" for maintenance of the road from "ownership" of the road. He concluded that based upon the doctrines of res judicata and collateral estoppel, plaintiffs' claim was not sustainable.

The judge noted that even if not precluded by the prior adjudication, plaintiff's equal protection and civil rights claims were not meritorious because a rational basis exists for disparate treatment by Mahwah of the different sections of the road. He nevertheless found those derivative claims barred by the preclusionary doctrines. The judge also rejected plaintiffs' efforts to support its claim by reference to the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. He reasoned that the Tort Claims Act does not impose upon municipal entities the obligation to exercise dominion and control over roadways within their borders.

On appeal, plaintiffs present the same arguments as those rejected by Judge Harris. We apply the same standard as the trial court in reviewing a summary judgment, first determining whether any genuine issue of material fact existed, and, if not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Based upon our review of the record, we agree with Judge Harris that no material facts were in dispute and that Mahwah was entitled to judgment dismissing the complaint as a matter of law. We affirm substantially for the reasons set forth by Judge Harris in his thorough oral decision of February 2, 2007.

Affirmed.

(continued)

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A-3871-06T2

April 29, 2008