PARK PLACE II v. SUZANNE THOMPSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PARK PLACE II at TINTON FALLS

CONDOMINIUM ASSOCIATION, INC.,

Plaintiff-Respondent,

v.

SUZANNE THOMPSON,

Defendant-Appellant.

___________________________________________

July 24, 2014

Before Judges St. John and Leone.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0182-12.

Suzanne Thompson, appellant pro se.

Schwartz Simon Edelstein & Celso, LLC and Griffin Alexander, P.C., attorneys for respondent (Stefani C. Schwartz, Jennifer L. Alexander, of counsel; Richard J. Angowski, Jr., Ari D. Schneider, Jennifer L. Moran and Steven G. Mlenak, on the brief).

PER CURIAM

Defendant Suzanne Thompson appeals from an order of the Law Division entered February 15, 2013, granting summary judgment for plaintiff, Park Place II at Tinton Falls Condominium Association (the Association), and awarding maintenance, counsel and other fees totaling $12,317.24. Defendant also appeals the Law Division's May 15, 2013 denial of her reconsideration motion. For the reasons that follow, we affirm.

I.

Viewing the evidentiary record in the light most favorable to defendant, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we discern the following facts and procedural history.

Plaintiff is a condominium association governed by the New Jersey Condominium Act, N.J.S.A. 46:8B-1 to -38 (the Act). Defendant is the owner of a condominium unit (the Unit) within the Association. As an Association member and by virtue of her Unit deed (the Deed), defendant is required to comply with the Association's bylaws, rules and regulations.

The Association is responsible for the upkeep and maintenance of all common areas, including the parking spaces. Pursuant to the Association's Master Deed and the Act, all unit owners are responsible for paying a monthly maintenance fee, as well as any penalty or attorney fees incurred by the Association for the collection of an overdue maintenance fee. See N.J.S.A. 46:8B-17 (condominium unit owners required to pay their respective share of common expenses).

Defendant purchased the Unit in August 2004. After she acquired that property, the Association's Board adopted and recorded two resolutions regarding unit owners' assigned parking. The first, Resolution No. 05-07, adopted in 2005, designated one numbered parking space to each unit. The Board then passed Resolution No. 06-017 in 2006, which empowered the Association to remove a unit's assigned parking space if the unit owner became delinquent in paying Association fees. The resolution provided that the Board must give "at least thirty (30) days advance written notice to the [a]ffected unit owner of such removal in order to permit the unit owner to bring their account current."

As defendant concedes, between November 1, 2010 and August 31, 2011, she failed to make her monthly maintenance payments, ultimately becoming delinquent in the amount of $935. It is also undisputed that defendant was properly noticed of her delinquency and had not submitted payment when, on May 26, 2011, the Association revoked her exclusive parking privileges to her assigned parking space #290 (the Space). It also directed its maintenance staff to "paint over" the physical number demarcating defendant's Space. After the revocation, defendant was forced to park in the common parking area.

On August 1, 2011, the Association filed a complaint against defendant seeking to collect the unpaid maintenance fees, other fees and expenses. Defendant thereafter answered and counterclaimed, alleging that the Association had violated her statutory and contract rights when it revoked her exclusive parking privileges to the Space. Following discovery, the Association moved for summary judgment on both the complaint and counterclaim.

In her opposition papers before the motion judge, defendant argued that pursuant to the Association's Master Deed and the Act, her Space is assigned for the "exclusive use" of the owner of the Unit. In support of her proposition, defendant asserted that the provisions of her Deed, which states that "the unit is together with an undivided .20833 percentage interest in and to the common elements appurtenant thereto" demonstrate that each unit comes with "an assigned parking space." Defendant contended that the assigned parking space "followed the unit upon purchase and transfer of title of her [Unit] in 2004, and is a 'limited common element' for the 'exclusive use' of the unit owner to the exclusion of other unit owners, and others."1

On February 15, 2013, the motion judge granted summary judgment in favor of the Association. The judge observed that the Space "is not deeded to [defendant], pursuant to the Master Deed, and is not reflected in any of the deed documents." The judge further determined that the Space was not adjacent to her unit and that Resolution No. 06-017 authorized the Association to remove a unit's assigned parking space in the event that the unit owner has not paid any fees. The judge reviewed defendant's contention in her counterclaim that she is entitled to a particular parking space and that as a result of the actions of the Association in removing her exclusive use of the Space, she is entitled to damages.

The judge stated that N.J.S.A. 46:8B-13 "provides for by- law adoption and the method of enforcing administrative rules and regulations for the operation of the unit." The judge determined that "pursuant to the Master Deed, all of the parking areas are subject to the common area control of the Association." Further, "neither the Deed nor the Master Deed nor any of the documents assigned this one particular space to [defendant's] unit and pursuant to the rules and regulations of the Association, they had every right to adopt a rule that says . . . once you fall behind in your fees they can remove the designated spot."

The court proceeded with a comprehensive analysis of the decisions asserted by defendant as applicable to her case, determining that they "are distinguishable from this matter." After stating that the court was viewing the facts in the light most favorable to the non-moving party, the court granted summary judgment to the Association. Having determined that the Association "did what was legal," the court also dismissed defendant's counterclaim.

The judge then addressed the Association's claim for fees and costs. With regard to the more than $15,000 in legal fees being sought, the judge set forth on the record his in-depth review of each time entry by the Association's counsel before ultimately awarding $7,962.24. Also awarded by the same order were maintenance fees as well as other fees and assessments. After deducting certain credits, the aggregate judgment totaled $12,317.24.

Following the Law Division's summary judgment decision and order, defendant moved for reconsideration of the judgment in favor of plaintiff, as well as the dismissal of her counterclaim. In a comprehensive written statement of reasons, the judge denied defendant's motion in its entirety on May 15, 2013. Specifically addressing defendant's argument that the Board "fraudulently implemented" Resolution No. 06-017, pursuant to which the Association had revoked her Space, the judge determined that there was no evidence to support that claim.

It is from those two orders of the Law Division that defendant appeals.

II.

On review of the grant of summary judgment, we utilize "'the same standard [of review] that governs the trial court.'" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)(alteration in original)(quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). When deciding a motion for summary judgment, the court must take all reasonable inferences in the light most favorable to the non-moving party and only grant the motion where "no genuine issue as to any material fact" exists and "the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

Condominium unit owners are required by law to pay their share of the common expenses. See N.J.S.A. 46:8B-17. The Act provides that "[a] unit owner shall, by acceptance of title, be conclusively presumed to have agreed to pay [her] proportionate share of common expenses accruing while [she] is the owner of a unit." Ibid. The Act also states that "[n]o unit owner may exempt [herself] from liability for [her] share of common expenses by waiver of the enjoyment of the right to use any of the common elements or by abandonment of [her] unit or otherwise." Ibid. Furthermore, we have stated that the obligation to pay condominium fees is unconditional. See Glen v. June, 344 N.J. Super. 371, 376-77 (App. Div. 2001).

On appeal, defendant repeats her argument before the Law Division that pursuant to the Association Master Deed and her own Deed, "each unit comes with an assigned parking space." We concur with the motion judge that neither of those referenced documents support defendant's contention.

Defendant further argues that the Space is a "limited common element," which pursuant to N.J.S.A. 46:8B-3(k) is "for the use of one or more specific units to the exclusion of other units." Defendant maintains that, under N.J.S.A. 46:8B-3(d), parking areas cannot be considered common elements where they are "reserved or limited to a particular unit or a group of units." Defendant contends that the Space was a limited common element and that not only did she have a permanent right to the Space, but she had the right, upon sale of her unit, to convey the Space to the purchaser. We note that defendant purchased her Unit in 2004, and that the Board adopted Resolution 05-07 assigning spaces in 2005.

We conclude that defendant misinterprets the Act and the relevant Association documents and that the Space is not a limited common element which affords defendant the right of exclusive use of the Space.

Defendant fails to appreciate that a limited common element that can be conveyed or for which a unit owner has exclusive rights must involve, as set forth in the legal description attached to her Deed, "common elements appurtenant" to her Unit. Here, defendant offers no proof that the assigned parking space was appurtenant to her Unit.

Defendant argues that our opinion should be guided by our holding in Glen v. June, supra, where the association's installation of a lolly column at the end of the delinquent unit owner's driveway had the effect of blocking access, not only to his driveway, but to his garage. 344 N.J. Super. at 379. Defendant represents that her "assigned parking space is appurtenant and an accessory to her unit, in the same way that her patio is appurtenant and an accessory to her [Unit], as the property interest is permanent and inseparable in which the usage rights come deeded with the purchase of . . . [the Unit]." She offers no evidence supporting the physical location of the Space as appurtenant to the Unit. Further, defendant did not contest the fact, proffered by the Association, that to access the Space from the Unit, she had to cross a sidewalk and then a street before entering the parking lot where the Space was located.

Defendant also contends that the Association enacted without authority Resolution 06-017 and "fraudulently filed same" in contravention of her property rights. Again, defendant offered no proof that the Board did not properly adopt the Resolution. Further, defendant contends that the court erred in its computation of the amount of delinquent fees owed, again not providing any proof of the correct amount.

We also reject defendant's assertion that her counterclaim and defenses precluded entry of summary judgment in favor of the Association. In opposition to plaintiff's motion, defendant did nothing more than rely on her unsupported allegations. The record does not include a certification attesting to facts or referencing evidence in support of her defenses or counterclaims. To the contrary, the documents included in defendant's appendix the Master Deed, Unit Deed, relevant Board resolutions and other submissions belie her factual assertions.

Defendant was required to raise a genuine dispute of material fact supported by the evidential materials submitted on the motion. She could not rely on the allegations and denials in her pleadings. See R. 4:46-5(a); Robbins v. Jersey City, 23 N.J. 229, 241 (1957)(noting that that where a prima facie claim warranting summary judgment is established, the party opposing the motion must "demonstrate by competent evidential material that a genuine issue of fact exists").

To survive summary judgment, it was incumbent on defendant to come forward and identify the existence of a genuine issue of material fact whose resolution in her favor would ultimately entitle her to judgment on her counterclaim or would defeat the Association's motion. See Mangual v. Berezinsky, 428 N.J. Super. 299, 313-14 (App. Div. 2012). Defendant proffered no proof other than bald assertions unsupported by, and in many instances contradicted by, the record. Conclusory and self-serving assertions by the defendant are insufficient to overcome the Association's motion. See Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011).

In sum, because defendant's opposition to the summary judgment motion failed to provide evidence to support her claims, and because she failed to establish that she was entitled, either by contract or under the Act, to the exclusive use of the Space, summary judgment was properly granted to the Association.

Any additional arguments raised in defendant's submissions that have not been specifically addressed were found to lack sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Defendant made this argument in her moving papers before the motion judge. Although on notice of the date and time of oral argument on her motion for summary judgment, defendant declined to appear.