COUNTY OF BERGEN v. IRIS COOPER-SHEPARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1145-08T11145-08T1

COUNTY OF BERGEN,

Plaintiff-Respondent,

v.

IRIS COOPER-SHEPARD, and

ROD SHEPARD,

Defendants-Appellants.

_______________________________

 

Argued March 2, 2010 - Decided

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-233-06.

Walter M. Luers argued the cause for appellants (Walter M. Luers, LLC, attorneys; Iris Cooper-Shepard and Rod Shepard, on the pro se brief).

Dennis S. Deutsch argued the cause for respondent (Kaufman, Bern & Deutsch, LLP, attorneys; Mr. Deutsch, of counsel; Mr. Deutsch and Marilyn G. Gittleman, on the brief).

PER CURIAM

Defendants Iris Cooper-Shepard and Rod Shepard appeal from the September 15, 2008 amended order of judgment. We affirm.

This is the second appeal in this matter. Because the procedural history and statement of facts were discussed at length in our prior unreported decision, County of Bergen v. Cooper-Shepard, No. A-5905-06 (App. Div. May 22, 2008), it is unnecessary for us to fully detail them here. However, the following summary will place this appeal in context.

On June 21, 2006, plaintiff County of Bergen commenced an action seeking to compel defendants to remove encroachments from a tract of parklands owned by the County. The complaint contained a metes and bounds description of the lands encroached upon, together with a statement that the encroached-upon area consisted of 4,615 square feet. Defendants contested the action on the basis that the complaint was barred by the statute of limitations, and the encroached-upon area only contained approximately 1,220 square feet.

On June 19, 2007, the trial court entered an order granting plaintiff summary judgment, and directing defendants to remove all encroachments within six months. The order, however, did not contain a metes and bounds description of the encroached-upon area. Defendants appealed.

On May 22, 2008, we affirmed. Ibid. In so doing, we noted that "[d]efendants' abutting lot encroached on plaintiff's land to the extent of some 1[,]220 square feet." Id. at 2. Although we affirmed the order granting summary judgment, we remanded stating:

the judgment must be modified to include a metes and bounds description as set forth in the two surveys submitted to the trial court. Plaintiff shall submit a proposed remanded judgment within 30 days of the filing of this opinion on notice to defendants. If defendants object, they shall so advise the trial court within 10 days of receiving the proposed amended judgment, and the trial court shall determine the issue as soon as practicable.

[Id. at 3.]

Defendants filed a petition for certification. On August 5, 2008, we entered an order staying our decision, pending the Supreme Court deciding defendant's petition, stating in relevant part: "This stay shall be deemed resolved if the petition is dismissed, or if the certification is denied."

In the interim, plaintiff filed a motion seeking entry of an amended judgment. Defendants filed a Rule 4:50-1 motion seeking to vacate the judgment on the basis that plaintiff's complaint was untimely filed. Defendants also contested the proposed amended judgment on the basis that the metes and bounds description submitted by plaintiff did not contain a statement that the encroached-upon area only contained approximately 1,220 square feet.

On September 2, 2008, the trial court granted plaintiff's motion and denied defendants' motion. On September 15, 2008, the court entered an amended judgment that referenced an attached metes and bounds description prepared by John J. Lombardo, P.L.S., and directed defendants to remove all encroachments within ninety days, "[s]aid 90 day period to commence upon the expiration of any stay that may be imposed by the Appellate Division." Subsequent to entry of the amended judgment, the Supreme Court denied defendants' petition for certification on October 28, 2008. 196 N.J. 600 (2008).

On appeal, defendants argue that the trial court erred by not incorporating into the body of the judgment the metes and bounds description along with a statement that the encroached-upon area only contains approximately 1,220 square feet. Defendants also contend that the court erroneously reduced the compliance time for removal of the encroachments from six months to ninety days.

We have considered defendants' arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The September 15, 2008 amended judgment complies with our direction on remand. A metes and bounds description does not require a statement of the area contained within the described property. The stay of this court's prior decision, affirming the grant of summary judgment and directing defendants to remove all encroachments from plaintiff's property, expired by its own terms on October 28, 2008, when the Court denied defendants' petition for certification. Thus, defendants have had sufficient time to remove the encroachments from plaintiff's property.

 
Affirmed.

(continued)

(continued)

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A-1145-08T1

March 22, 2010