THE DELCARE CORPORATION, et al. v. THE TOWNSHIP OF BLOOMFIELD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3710-05T13710-05T1

THE DELCARE CORPORATION, d/b/a

THE PARKVIEW; HAZELCREST MANOR

NURSING HOME CORPORATION, d/b/a

HAZELCREST MANOR; RICHARD DEL

VECCHIO, and DEBORAH DEL VECCHIO,

Plaintiffs-Appellants,

v.

THE TOWNSHIP OF BLOOMFIELD, a

Municipal Corporation of the

State of New Jersey; THE MAYOR

AND COUNCIL OF THE TOWNSHIP OF

BLOOMFIELD, a public body of

the Township of Bloomfield; THE

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF BLOOMFIELD, as a

Municipal Agency of the Township

of Bloomfield; THE BLOOMFIELD

DEPARTMENT OF HEALTH, a Municipal

Department of the Township of

Bloomfield; GLORIA SHORTER,

individually and as Director of the

Bloomfield Department of Health;

RAYMOND TAMBORINI, CHARLES DAGLIAN,

and JANICE MALY, individually and as

Members of the Mayor and Council of

the Township of Bloomfield; and MAURO

TUCCI, individually and as Township

Administrator of the Township of

Bloomfield,

Defendants-Respondents.

________________________________________________________________

 

Argued May 1, 2007 - Decided June 20, 2007

Before Judges Kestin, Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8815-03.

Edward G. Imperatore argued the cause for

appellants (Phillips Nizer, attorneys; Mr. Imperatore and Robert M. Adams, on the brief).

Christopher R. Welgos argued the cause for

respondents (Schwartz Simon Edelstein Celso

and Kessler, attorneys for respondents;

Stephen J. Edelstein, of counsel; Mr. Welgos, Stefani C. Schwartz, and Mark J. Cintron, on the brief).

PER CURIAM

Plaintiffs Richard Del Vecchio and Deborah Del Vecchio are the sole shareholders of two corporations: (1) Delcare Corporation, doing business as Parkview Residential Home (Parkview); and (2) Hazelcrest Manor Nursing Home, Inc. (Hazelcrest). Plaintiffs appeal from an order dated October 12, 2005, denying their motion to disqualify defendants' counsel, and a subsequent summary judgment entered on February 23, 2006, dismissing their first amended complaint "in its entirety with prejudice as to all defendants." After reviewing the record in light of the contentions advanced on appeal, we affirm.

The Parkview and Hazelcrest facilities are located in a residential single-family district in the Township of Bloomfield (the Township). For many years, plaintiffs operated the facilities as pre-existing nonconforming nursing homes. More recently, however, plaintiffs obtained a state license to operate Parkview as a residential health care facility (RHCF), and, in an unpublished opinion, we noted that although Hazelcrest was initially operated as a nursing home, it was subsequently operated as a RHCF and then a boarding home. Hazelcrest Manor, Inc. v. Zoning Bd. of Twp. of Bloomfield, No. A-0470-05 (App. Div. May 25, 2007) (slip. op. at 5). Nevertheless, plaintiffs failed to obtain the Zoning Board's approval to change the use from a nursing home to a RHCF as required by N.J.A.C. 8:43-2.4(b)(4), (i) ("An initial license shall be issued to a [RHCF] when the following conditions are met . . . approvals are on file with the Department from the local zoning, fire, health, and building authorities," and "[t]he license shall not be renewed if local rules, regulations and/or requirements are not met."), and from a RHCF to a boarding home as required by N.J.A.C. 5:27-1.6(m) ("No license to operate a rooming or boarding house shall be issued until the applicant has provided proof of local zoning approval.").

On October 4, 2002, plaintiffs filed a notice of claim, pursuant to N.J.S.A. 59:8-4 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3 (TCA), against the Township, "including but not limited to the Zoning and Building Departments" and any of their "representatives." In their TCA notice, plaintiffs claimed "economic" and "non-economic" damages as a result of being "harassed through an abuse of process (improper inspections, disparity of treatment as compared with other similar facilities and actions with no support and basis in fact)."

On October 30, 2003, plaintiffs filed a sixteen-count complaint in the Superior Court, Law Division, seeking compensatory and punitive damages against the Township; the Township's Zoning Board of Adjustment (Zoning Board); the Township's Department of Health (Health Department); the Health Department's Chief Inspector, Gloria Shorter, both individually and in her official capacity; Township council members Raymond Tamborini and Charles Daglian, both individually and in their official capacities; Township Administrator Mauro Tucci, both individually and in his official capacity; and "other unknown defendants."

In their first amended complaint, plaintiffs repeated the allegations and claims in the original complaint, and they added three more defendants and three more claims. The additional defendants were Township Council member Janice Maly, both individually and in her official capacity, and the Township's Mayor and Council.

With the additional three claims, the amended complaint comprised nineteen counts. These included eight claims under 42 U.S.C.A. 1983 alleging the deprivation of certain rights, one claim each against the Township (First Count), the Mayor and Council (Second Count), the Zoning Board (Third Count), Councilman Tamborini (Fourth Count), Councilman Daglian (Fifth Count), Councilwoman Maly (Sixth Count), Administrator Tucci (Seventh Count), and various unnamed defendants (Ninth Count).

The complaint also set out claims against the Mayor and Council for violation of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (OPMA) (Eighth Count); against all defendants for tortious interference with plaintiffs' existing economic advantage and with their prospective economic advantage, as well as for harassment (Tenth, Eleventh, and Sixteenth Counts, respectively); and against the individual defendants for slander, libel, disparagement, the negligent or intentional infliction of emotional distress, and conspiracy (Twelfth, Thirteenth, Fourteenth, Fifteenth, and Seventeenth Counts, respectively).

Finally, plaintiffs sought a declaratory judgment that the Township and the Zoning Board had subjected plaintiffs to "disparate treatment," as well as injunctive relief against all defendants to cease interfering with plaintiffs' operation of Parkview and Hazelcrest (Eighteenth and Nineteenth Counts, respectively).

On April 7, 2004, defendants filed an answer, denying the pertinent allegations of the complaint and asserting affirmative defenses. All defendants were represented by a single law firm: Schwartz Simon Edelstein Celso and Kessler (the Schwartz Firm).

On August 5, 2005, Judge Simonelli entered an order that denied defendants' motion for partial summary judgment without prejudice and granted plaintiffs' motion to extend discovery until October 20, 2005. On August 24, 2005, plaintiffs filed a motion to disqualify defendants' counsel from representing any of the defendants. The basis for plaintiffs' motion was an alleged conflict of interest between the individual defendants and the government-entity defendants. In their opposition to the motion, defendants claimed there was no conflict because the Township would not seek reimbursement of legal expenses from any of the individual defendants, and the Township agreed to indemnify "the individual defendants for any damage awards with regard to plaintiffs' claims for defamation, intentional infliction of emotional distress and tortious interference with economic relations or advantages." In denying plaintiffs' disqualification motion, Judge Simonelli stated she was "primarily" relying on the holding of the Court in I/M/O the Petition for Review of Opinion 552 of the Advisory Comm. on Prof. Ethics, 102 N.J. 194 (1986).

Defendants' second summary judgment motion was heard on January 6, 2006. On February 27, 2006, Judge Simonelli issued a 128-page written decision, which was memorialized by an order entered the same day, granting defendants' motion and dismissing plaintiffs' complaint as to each defendant.

On appeal, plaintiffs present the following arguments:

POINT I

THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE OF THE EXISTENCE OF NUMEROUS ISSUES OF FACT REQUIRING DETERMINATION BY THE JURY[.]

A. STANDARD OF REVIEW

B. SUMMARY JUDGMENT STANDARD

POINT II

APPELLANTS HAVE ALLEGED RESPONDENTS' VIOLATIONS OF 42 U.S.C.A. 1983 SUFFICIENT TO PRESENT TO A JURY[.]

A. EQUAL PROTECTION

B. SUBSTANTIVE DUE PROCESS AND THE RIGHT TO PRIVACY

C. GOVERNMENTAL POLICY AS A BASIS FOR CLAIM UNDER 1983

D. CONCLUSION

POINT III

APPELLANTS' NOTICE OF TORT CLAIM WAS TIMELY FILED AS TO ALL CAUSE[S] OF ACTION[.]

POINT IV

APPELLANTS' DEFAMATION CLAIMS ARE NOT TIME-BARRED[.]

POINT V

APPELLANTS HAVE ASSERTED A VALID TRADE LIBEL CLAIM AGAINST RESPONDENTS[.]

POINT VI

DEBORAH'S MENTAL AND PHYSICAL DAMAGES, AS DESCRIBED IN HER EXPERT'S REPORT, SHOULD BE SUBMITTED TO A JURY[.]

POINT VII

APPELLANTS SHOULD BE PERMITTED TO SUBMIT A CLAIM FOR HARASSMENT TO A JURY[.]

POINT VIII

APPELLANTS PROPERLY CLAIM THAT RESPONDENTS CONSPIRED TO DEPRIVE APPELLANTS OF THEIR CONSTITUTIONAL RIGHTS IN VIOLATION OF 42 U.S.C.A. 1985[.]

POINT IX

APPELLANTS PROPERLY CLAIM THEIR ENTITLEMENT TO A DECLARATORY JUDGMENT[.]

POINT X

THE SCHWARTZ FIRM MUST BE DISQUALIFIED FROM FURTHER PARTICIPATION IN THIS ACTION[.]

A. STANDARD OF REVIEW

B. BECAUSE A GENUINE CONFLICT OF INTEREST EXISTS WHICH HAS BEEN IDENTIFIED BY THE COURT BELOW, THIS COURT OUGHT [TO] DISQUALIFY THE SCHWARTZ FIRM FROM REPRESENTING ANY RESPONDENT[.]

C. THE SCHWARTZ FIRM CANNOT CONTINUE TO REPRESENT ANY RESPONDENTS, BECAUSE THE CONFLICT AMONG THEM CANNOT BE WAIVED[.]

D. CONCLUSION

Based on our review of the record and the applicable law, we reject these arguments. We conclude the trial court was correct in denying plaintiffs' motion to disqualify the Schwartz Firm, and we affirm the summary judgment in favor of defendants substantially for the reasons set forth in Judge Simonelli's comprehensive, well-reasoned written decision rendered on February 27, 2006.

Affirmed.

 

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A-3710-05T1

June 20, 2007