CHARLES M.D. BLOOM v. ROBERT MORALES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHARLES M.D. BLOOM,

Plaintiff-Appellant,

v.

ROBERT MORALES AND

VIDIARILL MORALES,

Defendants-Respondents.

___________________________

March 6, 2015

Submitted February 23, 2015 Decided

Before Judges Simonelli and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Monmouth County, Docket No. C-0118-12.

Otto J. Kostbar, attorney for appellant.

Manna & Bonello, P.A., attorneys for respondents (Jeff Thakker, of counsel; John L. Bonello, on the brief).

PER CURIAM

Plaintiff Charles M. D. Bloom appeals from the October 25, 2013 Law Division order, which denied his motion for summary judgment and granted the cross-motion for summary judgment filed by defendants Robert Morales and Vidiarill Morales. Plaintiff also appeals from the December 6, 2013 order, which denied his motion for reconsideration. For the following reasons, we affirm.

We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in the light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213 N.J.573, 577 (2013) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J.520, 523 (1995)).

In 1920, plaintiff's father acquired title to property located in the City of Long Branch and rented the property until he died in 1940. Following the father's death, the property was devised to plaintiff's mother, who resided there from 1940 to 1990. During that time, plaintiff's mother enjoyed a friendly relationship with the adjacent property owners and utilized their dirt driveway to access the garage in the rear of her property. A July 30, 1964 survey obtained by plaintiff's mother showed the driveway was located entirely on the adjacent property. The survey did not show an easement across the driveway and the record contains no evidence that plaintiff's mother sought to establish an easement.

Plaintiff claimed that, except during the periods 1957 to 1960 and 1965 to 1976, he resided at the property and used the driveway. Following his mother's death in May 1993, he acquired title to the property in December 1993.

In 2002, Karen Bowles acquired title to the adjacent property, and in 2005, placed her husband, William Bowles, on the deed. In March 2008, defendants purchased the adjacent property from the Bowles and began constructing a stockade fence along their property line. Plaintiff filed an order to show cause and verified complaint, seeking an easement by prescription along the existing boundaries of the driveway and an injunction prohibiting defendants from constructing a fence or any other impediment that would prevent him from utilizing the driveway.1 Defendants countered that use of their driveway was consensual.

Plaintiff filed a motion for summary judgment, arguing, as he does in this appeal, that his mother acquired an easement by prescription across the driveway. Defendants filed a cross-motion for summary judgment, arguing that plaintiff could not prove his mother's use of the driveway was hostile. In support of their cross-motion, defendants submitted three surveys obtained subsequent to the 1964 survey, which showed that alterations were made to the size, shape, direction and component materials of the driveway without any challenge by plaintiff's mother. Defendants also submitted certifications from the Bowles, stating that plaintiff's use of the driveway was consensual.

In granting summary judgment to defendants, the motion judge concluded that because there was no evidence that plaintiff's mother's use of the driveway was hostile, an easement by prescription was not created. The judge denied plaintiff's motion for reconsideration for the same reason. This appeal followed.

"A ruling on summary judgment is reviewed de novo. We thus apply the same standard governing the trial court, and do not defer to the trial court's . . . interpretation of the meaning of a statute or the common law." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (internal quotation marks omitted). Thus, we consider, as the motion judge did, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id.at 406. "If there is no genuine issue of material fact, we must then decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

As for the denial of a motion for reconsideration, we have determined,

Reconsideration itself is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.] It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (internal quotation marks and citations omitted).]

We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).

To establish an easement by prescription

a litigant must prove elements similar to those associated with adverse possession. Thus, the proponent of an easement by prescription must prove an adverse use of land that is visible, open and notorious for at least thirty years. The proponent of the easement must establish the elements by the preponderance of the evidence.

[Yellen v. Kassin, 416 N.J. Super. 113, 119-120 (App. Div. 2010) (citations omitted).]

We have held that

A use is adverse or hostile if a person uses the property of another under a claim of right, pursued with an intent to claim against the true owner in such circumstances of notoriety that the owner will be aware of the fact and thus alerted to resist the acquisition of the right by claimant before the period of adverse possession has elapsed.

[Id. at 120 (internal quotation marks omitted).]

Here, plaintiff, failed to establish that his mother's use of the driveway was "adverse or hostile" and "under a claim of right," rather than "indulgent and permissive in character." Id. at 120-21. The record is devoid of the adversity required to establish a right to an easement by prescription across the driveway. Accordingly, we concur with the motion judge's determination that no easement by prescription was created.

Affirmed.

1 In an amended complaint, plaintiff also sought to establish the correct property line between the two properties. In a September 12, 2013 order, the court granted partial summary judgment to plaintiff on this claim and established the boundary lines between the two properties, which did not include the driveway.