STATE OF NEW JERSEY BUREAU OF HOUSING INSPECTION v. EDWARD J. GIERMANSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2047-10T2

STATE OF NEW JERSEY, BUREAU

OF HOUSING INSPECTION,

Plaintiff-Respondent,

v.

EDWARD J. GIERMANSKI,

Defendant-Appellant.

______________________________________

July 13, 2012

Argued November 9, 2011 Decided

Before Judges Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. DJ-270451-2009.

Gary D. Gordon argued the cause for appellant (Feinstein, Raiss, Kelin & Booker L.L.C., attorneys; Mr. Gordon, on the brief).

Andrew J. Walko, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Barbara Berreski, on the brief).

PER CURIAM

Defendant Edward J. Giermanski appeals from the November 19, 2010 Law Division order denying his Rule 4:50-1 motion to vacate a docketed judgment for $18,625 in civil administrative penalties and fees as the result of violations found during inspections of his property. Having considered defendant's contentions in light of the applicable law, we affirm.

I.

We discern the following facts from the record. From 1996 to 2005, defendant owned a thirty-unit apartment building in Paterson. On August 23, 1995, plaintiff, the Bureau of Housing Inspection (the Bureau), conducted a cyclical inspection of defendant s property that disclosed numerous violations of the Hotel and Multiple Dwelling Law (Law), N.J.S.A. 55:13A-1 to -28, which were set forth in an inspection report issued on March 25, 1999. The Bureau ordered defendant to abate the violations by May 25, 1999.

The Bureau conducted a reinspection of the premises on August 13, 1999, which revealed that plaintiff had not fixed the original violations. Consequently, on October 4, 1999, the Bureau issued a Notice of Statutory Violation and Order to Pay Penalty (Penalty Notice) in the amount of $3,875. The Penalty Notice, which defendant acknowledged receiving, also notified defendant that, within fifteen days of receipt of the Notice, he could request a hearing at the Office of Administrative Law (OAL) to contest the penalties. Further, the Penalty Notice stated in bold print, "The penalty hereby assessed is in addition to, not in lieu of, all penalties previously assessed."

On March 28, 2000, the Bureau conducted its second reinspection, which revealed that defendant still had not fixed all of the original violations. As a result, on October 20, 2000, the Bureau issued a re-inspection fee of $560, and on October 27, 2000, it issued a Penalty Notice for $14,500 for continuing violations. This Penalty Notice, which defendant also acknowledged receiving, contained language identical to the previous Penalty Notice about the right to request a hearing at the OAL.

On August 31, 2000, the Bureau conducted its third reinspection, and three months later issued a certification, known as a "green card," which provided that the building was currently in compliance with the Law. In January 2001, the Bureau issued another order to defendant to pay the unpaid $560 inspection fee and to pay a $280 penalty for failing to timely pay the inspection fee.

Defendant failed to pay the assessed administrative penalties and fees resulting from the cyclical inspection period that ended March 2000. On July 13, 2001 and again on July 28, 2009, the Bureau served defendant with notice that, pursuant to N.J.S.A. 55:13A-19, the Bureau would file for a docketed judgment. On November 7, 2009, the Bureau sent to the Clerk of the Superior Court a request to file the administrative penalty order for $18,6251 plus interest as a docketed judgment against defendant. Shortly thereafter, defendant received notice that the judgment had been docketed but did not challenge the docketing at that time.

Separate from the above cyclical inspections of defendant's building, the Bureau had also conducted an addendum inspection, which generally occurs in response to complaints of tenants or local law enforcement authorities, or when new violations are discovered during re-inspection. The Bureau, after imposing penalties in the amount of $20,500 as a result of newly discovered violations,2 brought a Law Division action to enforce the Law and for penalties. At the court hearing on the addendum violations on September 17, 1999, the parties reached a settlement, and the Bureau voluntarily dismissed the civil action with prejudice.

In October 2010, defendant, after his tax refund was intercepted, filed a Rule 4:50-1 motion to vacate the docketed judgment. At the motion hearing, defendant argued that he had settled all outstanding violations in September 1999, and the Bureau's issuance of the "green card" showed that he was in full compliance two years later. He further argued that the penalties were barred by the statute of limitations and the equitable doctrines of waiver, laches or estoppel. The State submitted that the settlement had been for the addendum inspection, and could not logically have been applied to the administrative penalties covered by the docketed judgment because they had been imposed after the settlement date. The State also contended that the ten-year statute, not a two-year statute, applied.

Judge Innes found that because the penalties were assessed after the September 17, 1999 court date, the settlement did not include the penalties addressed in the docketed judgment at issue. He concluded that the Bureau's judgment was not barred by the statute of limitations or waiver, estoppel or laches, because the State brought the action within the requisite ten-year time period. Moreover, he observed that the docketing of the judgment was a mere ministerial act in which defendant's substantive claims could not have been raised. He found that defendant failed to seek a timely appeal of any of the Penalty Notices through the OAL where he could have raised the 1999 settlement agreement. Under these circumstances, Judge Innes determined that defendant had presented no reason to overturn the docketed judgment and denied defendant's Rule 4:50-1 motion. This appeal followed.

On appeal, defendant raises the following contentions for our consideration.

POINT I: THE APPLICABLE STATUTE OF LIMITATIONS BARRED THE ENTRY OF THE JUDGMENT BY THE [DEPARTMENT OF COMMUNITY AFFAIRS].

POINT II: THE EQUITABLE DOCTRINES OF WAIVER, ESTOPPEL AND LACHES APPLY TO BAR THE [DEPARTMENT OF COMMUNITY AFFAIRS'S] JUDGMENT.

POINT III: THE ENTIRE CONTROVERSY DOCTRINE BARRED THE [DEPARTMENT OF COMMUNITY AFFAIRS] FROM SEEKING JUDGMENT.

Under Rule4:50-1, acourt may,"uponsuch termsas arejust,"relieve aparty froman orderfor anumber ofreasonsincluding"mistake,inadvertence,surprise,orexcusableneglect"as wellas "anyotherreasonjustifyingrelief."R.4:50-1(a)and (f). Motionsfor relieffromjudgmentsare tobe decidedat thesounddiscretionof thetrialjudge.MorristownHousingAuth.v.Little,135 N.J.274, 283(1994). In decidingsuchapplications,the trialcourtshould beguided byequitableprinciples. Ibid. We donot disturbthe resultunlessthere hasbeen aclear abuseofdiscretion. Ibid.

The purposeof theLaw isto protectthe healthand welfareof NewJerseyresidentsby ensuringdecent,standardand safedwellingspace. N.J.S.A.55:13A-2. Penaltiesforviolationsof theLaw maybe assessedagainst apropertyowner. N.J.S.A.55:13A-19(b). The timewithinwhich apersonaggrievedby anadministrativepenalty mayrequest ahearingunder theAct isset atfifteendays. N.J.S.A.55:13A-18. SeealsoCommunityAffairsDep'tv.Wertheimer,177 N.J.Super.595,599 (App.Div. 1980). If thepersonagainstwhoma penaltyhas beenassesseddoes notrequest atimelyhearing,thepenaltiesbecomefinal,andappellatereview isto thiscourt. R.2:2-3(a)(2). Under thePenaltyEnforcementLaw of1999,if civiladministrativepenaltiesbecomefinal aftertheopportunityfor ahearing hasbeenafforded,anadministrativeagency mayrequest theClerk oftheSuperiorCourt torecord thefinal orderassessingthe penaltyon thejudgmentdocket ofthe court. N.J.S.A.2A:58-10a;seealsoR.4:70-1(b).

Defendant arguesthat thedocketingof thejudgmentwas barredby thetwo-yearstatute oflimitationsin N.J.S.A.2A:14-10,which heassertsbegan torun onNovember27, 2001,whendefendantreceivedthe "greencard"acknowledgingthat thebuildingwas notinviolationof theLaw. TheBureaucontendsthat thedocketingwascontrolledby theten-yearstatute oflimitationsin N.J.S.A.2A:14-1.2,applicableto mostcivilactionsbrought bythe State.

N.J.S.A.2A:14-1.2applies toactionsbrought bythe Stateunless itis"expresslyandspecifically"clear thatanotherlimitationsperiodapplies. Dep'tofEnvtlProt.,v.LarchmontFarms,Inc.,266 N.J.Super.16, 34(App. Div.1993),certif.denied,135 N.J.302 (1994). N.J.S.A.2A:14-10covers"[a]llactions atlaw broughtfor anyforfeitureupon anypenalstatute[.]" We aresatisfiedthatneither thePenaltyNotice northedocketingof theadministrativepenaltyorderconstitutedaforfeitureproceeding,which isa civilin remaction,institutednot againstthe ownerof theproperty,but againstthepropertyitself. Ibid.;Statev.1979PontiacTransAm,98 N.J.474, 480(1985). Here, thepenaltiesare againstthe ownerof thepropertyforviolationsof theLaw, andthe requestfor thedocketingof thejudgmenttook placeless thanten yearsafter theviolationswere deemedto haveceased. See N.J.S.A.55:13A-19. Moreover,we notethatN.J.S.A.2A:58-10,whichprovidesfordocketingof aciviladministrativejudgmentupon therequest ofthe agency,contains notimelimitation. Thus, werejectdefendant'sclaim thatthedocketingof theadministrativecivilpenaltiesassessedhere wastime-barred.

Defendant'sargumentsconcerningthe entirecontroversydoctrine,laches,waiver andestoppelare withoutmerit sufficient to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

We agree with the trial judge that defendant had the opportunity to challenge the penalties that he claimed were for violations covered by the 1999 settlement by requesting a hearing at the OAL, as the Penalty Notices provided. After he failed to do so, the penalties became due and owing. When defendant sold the property after failing to challenge the administrative penalties, he did so with notice that fines and penalties of $18,625 were owed to the State. Hence, defendant's contention that, because the State did not docket the orders for eight years after the violation ceased and four years after he had sold the property, he was unjustly prejudiced by the docketed judgment is unpersuasive. As a result, we find no abuse of discretion in Judge Innes's denial of defendant's Rule 4:50-1 motion.

1 The record provides no explanation why the amount is less than the total of the penalties and fees assessed for this inspection cycle.

2 The record does not contain the Penalty Notice or the court papers.