MEADOW RIDGE CONDOMINIUM ASSOCIATION, INC v. SUMO ENTERPRISES, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1138-10T3

MEADOWRIDGECONDOMINIUMASSOCIATION, INC.,

Plaintiff-Respondent,

v.

SUMO ENTERPRISES, INC., and SUMO COMPANIES, INC.,

Defendants-Appellants,

and

TOWNSHIP OF LYNDHURST,

Defendant-Respondent.

________________________________

SubmittedJune 6, 2011 Decided June 17, 2011

Before Judges Grall and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-403-06.

Frieri, Conroy & Lombardo, LLC, attorneys for appellants (John R. Frieri and Amy E. Gasiorowski, on the briefs).

Law Offices of Stephen P. Sinisi, LLC, attorneys for respondent Meadow Ridge Condominium Association (Mr. Sinisi, on the brief).

Stryker, Tams & Dill, LLP, attorneys for respondent Township of Lyndhurst, join in the brief of respondent Meadow Ridge Condominium Association.

PER CURIAM

Defendants Sumo Enterprises, Inc., and Sumo Companies, Inc., (collectively, the Sumo defendants) appeal from an order denying their motion for reconsideration or a stay of an earlier order in aid of litigant's rights that enforced a final judgment entered in this matter. Finding no merit to the Sumo defendants' contentions, we affirm.

This litigation arose from a dispute between plaintiff Meadow Ridge Condominium Association, Inc., and the Sumo defendants over the repair and reconstruction of a retaining wall on property located at 855 Valley Brook Avenue, Lyndhurst. The Sumo defendants had purchased eight units comprising one building at a foreclosure sale and took over completing construction. Plaintiff approached the Sumo defendants and proposed waiving their monthly maintenance fees for so long as they owned all eight units in exchange for their agreement to reconstruct the retaining wall and repave and re-stripe the parking lot; the Sumo defendants agreed.

When the wall was not reconstructed as promised, plaintiff instituted suit. A final judgment was entered mandating that the Sumo defendants build a new retaining wall and install a proper drainage facility to the rear of their building in accordance with the specifications and requirements of the township.

The Sumo defendants presented a design plan to the township engineer in the spring of 2008, which the engineer approved. The Sumo defendants, however, did not proceed with construction. On April 16, 2009, the engineer with his consultant inspected the property, determined that the site had changed considerably as a result of erosion, and invalidated the pending approval on April 20. The Sumo defendants did not dispute the engineer's action by letter or by instituting an action in lieu of prerogative writs within forty-five days. See R. 4:69-6(a). They also did not seek relief in the pending action. Neither did they submit a new wall design, as the engineer required.

On October 7, the engineer asked the Sumo defendants to provide a specific timeframe for the completion of the project and included a copy of a report from Richard A. Mehrman, L.P.E., addressing the soil conditions at the site that required a new design. The Sumo defendants never responded to this letter or report. On December 7, the engineer sent another letter to theSumo defendants requiring them to submit all documents he had earlier requested within thirty days.

When the Sumo defendants still took no action, plaintiff filed a motion on April 14, 2010, in aid of litigant's rights and to hold the Sumo defendants and their president, Jacinto Rodrigues, in contempt. On June 18, the judge entered an order compelling the Sumo defendants to prepare and submit plans to the township engineer for the installation and construction of a retaining wall and drainage system by July 11. A site inspec tion on June 21 revealed additional slope erosion. The order finally prompted the Sumo defendants to submit a new design drawing, but it was disapproved by the township engineer on August 9.

Plaintiff renewed its motion in aid of litigant's rights, seeking a ruling on issues that had not yet been determined. The judge ordered the township engineer to determine by September 10 whether he was in possession of plans that could be approved for the design and location of the wall and related improvements. On September 9, the township engineer disapproved the Sumo defendants' design plan. The design was deficient and presented a multitude of public health and welfare concerns, including but not limited to potential building instability and the maintenance of existing sanitary sewer flows.

This action led the judge to enter an order on September 16 directing the Sumo defendants to post a bond, irrevocable letter of credit, or certified check in the amount of $250,000 within thirty days, to be held in escrow pursuant to the judge's direction. Thereafter, the Sumo defendants filed their motion for reconsideration or a stay pending appeal. The judge denied reconsideration and a stay, finding that he had not made a mistake on the law and "the facts are what they have been all along, right or wrong." He continued:

Number one, there's a condition out there that needs to be addressed now. Number two, the previously approved plan is, in the reasonable judgment of the entity entrusted with the decision, no longer what it was when the original design was approved. Circumstances have changed, necessitating a different design. That the Sumo defendants have been unable to satisfy the independent professionals of the municipality as to its adequacy, despite numerous extended opportunities to do so.

Under those circumstances, there is no change in the case. The subsequently submitted affidavits are simply incompetent as a basis for the court to revisit these determinations and don't shake the foundation of any of the findings that I've just set forth on the record. I think the record viewed as a whole will show that the opportunity to address this condition by Sumo has come and gone. Somebody else has to get involved in the design. They'll pay for it. Certainly as a matter of first instance. And it will go forward.

So motion for reconsideration denied.

This appeal followed. The Sumo defendants contend that the judge erred in failing to conduct an evidentiary hearing pursuant to Rule 4:67-5, abused his discretion in denying their motion for reconsideration, and failed to consider whether the township engineer's decision was arbitrary, capricious or unreasonable. Rule 4:67-5 did not govern the application before the judge. That rule applies to summary actions whereas the application before the judge was governed by Rule 1:10-3. The latter rule did not require an evidentiary hearing here because the issue was whether the Sumo defendants complied with the prior orders, and there was no dispute that the Sumo defendants had failed to do so.

The Sumo defendants' remaining contentions that the judge abused his discretion in denying reconsideration and in failing to determine whether the township engineer's 2009 invalidation of its earlier design approval was arbitrary, capricious or unreasonable are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the judge in his opinion delivered on October 29, 2010. We add only that the time to contest the engineer's 2009 invalidation of his earlier approval of the Sumo defendants' design drawings had expired long before the motions in aid of litigant's rights and for reconsideration, and the issue was thus untimely. See R. 4:69-6(a). The dispute over the propriety of the 2009 engineer's determination, which was the focus of the motion for reconsideration, did not present any new evidence or demonstrate that the judge failed to consider evidence before him when he granted plaintiff's motion in aid of litigant's rights. See R. 4:49-2.

Affirmed.