MICHAEL DOLAN v. BELANTRAE GREENS CONDOMINIUM ASSOCIATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHAEL and SUSAN DOLAN,

Plaintiffs-Appellants,

v.

BELANTRAE GREENS CONDOMINIUM

ASSOCIATION,

Defendant-Respondent.

July 13, 2015

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. DC-4557-14.

Michael Dolan and Susan Dolan, appellants pro se.

Hueston McNulty, P.C., attorneys for respondent (Samuel J. McNulty, of counsel and on the brief; Jennifer L. Moran, on the brief).

PER CURIAM

Plaintiffs Michael and Susan Dolan appeal from September 17, 2014 Special Civil Part orders denying plaintiff's motion for summary judgment and dismissing their complaint without prejudice. We affirm.

Plaintiffs filed this action on June 16, 2014. According to their complaint, plaintiffs own a condominium in Florham Park, and defendant is the condominium association for their building.

In the spring of 2013, plaintiff's sought to refinance their condominium. Despite assurances to the contrary, defendant failed to re-certify the condominium with the Federal Housing Administration ("FHA"). This failure to maintain FHA certification led to an approximately four-month delay in plaintiffs' refinancing. In turn, the delay resulted in a 0.75% increase in plaintiffs' interest rate.

Plaintiffs asserted that the increased interest rate equated to $90 per month, for an increase of $12,352.55 in total interest payments over the course of plaintiffs' fifteen-year mortgage. Plaintiffs also claimed that the delay caused them to incur an additional appraisal fee of $425.

Defendant's Alternative Dispute Resolution ("ADR") policy provides, in pertinent part

Prior to the commencement of any court appeal or binding arbitration agreed to by the parties, any party to the dispute . . . may request mediation of the dispute by an impartial mediator . . . . If mediation does not result in a written agreement between the parties to resolve the dispute, the mediator will, acting in the capacity of a[n] arbitrator, issue a written decision . . . , which shall become binding only if none of the parties to the mediation files a suit . . . within [forty-five] days following the mailing of the written decision.

Defendant moved to dismiss the complaint and refer the matter to ADR. Plaintiffs countered with a motion for summary judgment. On September 17, 2014, the court denied plaintiffs' motion, granted defendant's motion, and dismissed plaintiff's complaint without prejudice. Pursuant to N.J.S.A. 46:8B-14 and defendant's ADR policy, the court referred the matter to ADR in the form of mediation.

This appeal followed. On appeal, plaintiffs argue their suit for monetary losses is not housing-related, ADR is not an appropriate forum for a suit for monetary damages, and defendant's ADR policy precludes fair resolution of their claims.

We review motions to dismiss and issues of law de novo. Rezem Family Assocs. LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied, 208 N.J. 366 (2011). We do not defer to the trial court's conclusions. Ibid.

N.J.S.A. 46:8B-14 states, "An association shall provide a fair and efficient procedure for the resolution of housing-related disputes between individual unit owners and the association, and between unit owners, which shall be readily available as an alternative to litigation." N.J.S.A. 46:8B-14 recognizes and must be interpreted in light of our State's strong public policy favoring alternative dispute resolution. Bell Tower Condo. Ass'n v. Haffert, 423 N.J. Super. 507, 514-15 (App. Div.), certif. denied, 210 N.J. 217 (2012).

[O]nce a suit is filed, either litigant may seek to dismiss the matter if they choose to make use of the alternative dispute remedy which must be made available to them under [N.J.S.A. 46:8B-14]. In other words, submission to ADR is not a prerequisite to suit, but once a suit is filed, the respondent in the action may seek to have the matter sent to ADR under the statute.
 
[Finderne Heights Condo. Ass'n v. Rabinowitz, 390 N.J. Super. 154, 163-64 (App. Div. 2007).]

Here, plaintiffs filed suit, and defendant moved to dismiss without prejudice to pursue mediation. Defendant's ADR policy provides for such mediation, and does not bar plaintiffs from refiling if mediation proves unsuccessful. Given the strong public policy favoring arbitration, the preservation of plaintiff's ability to sue, and the clear language of Finderne, supra, 390 N.J. Super. at 163-64, we conclude that the motion court correctly granted defendant's motion to refer the matter to mediation.

We discern no merit in plaintiffs' argument that their suit is not housing-related. "The term 'housing-related dispute' is a broad one." Bell Tower, supra, 423 N.J. Super. at 517. It "signifies . . . disputes that arise from the parties' condominium relationship . . . ." Ibid. Plaintiff's suit asserts claims of negligence and breach of fiduciary duty arising out of defendant's alleged duty to maintain FHA certification for the condominium complex. This alleged duty derives from defendant's role as a condominium association and plaintiffs' role as a condominium owner. The dispute clearly relates to the parties' condominium relationship, and therefore, this action falls under N.J.S.A. 46:8B-14.

As to plaintiffs' claims that defendant's ADR policy is not fair and efficient, that issue was not before the trial court, and we decline to exercise original jurisdiction. See R. 2:105; Price v. Himeji, LLC, 214 N.J. 263, 295 (2013). Moreover, plaintiffs' documents indicate that defendant's ADR policy is currently under review by the Department of Community Affairs. Therefore, our intervention would "'inappropriatelyinterfere with. .. administrativeaction[,]'" andthe issueis not ripefor ourconsideration. Comm.to Recall Menendez v. Wells, 204 N.J. 79, 99 (2010) (quoting Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 479, 121 S. Ct. 903, 915, 149 L. Ed. 2d 1, 21 (2001)).

Affirmed.