ATILA SEVINC v. FULTON HOUSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ATILA SEVINC,

Plaintiff-Appellant/

Cross-Respondent,

v.

FULTON HOUSE, a Cooperative

Corporation, NANCY BRODERICK,

PHILLIP LITTLE, ROBERT LYLE,

ROBERT NICOTRA and ROBERT

WALLACE,

Defendants-Respondents/

Cross-Appellants.

_________________________________

November 25, 2015

Before Judges Alvarez, Haas and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-434-12.

James Fitzgerald argued the cause for appellant/cross-respondent (Friedman, Kates, Pearlman & Fitzgerald, P.A., attorneys; Mr. Fitzgerald, on the briefs).

Robert J. Mormile argued the cause for respondents/cross-appellants (Farkas & Donohue, LLC, attorneys; Mr. Mormile, of counsel; Christine M. Jones, on the brief).

PER CURIAM

This is a dispute over the dimensions of a parking space provided to plaintiff Atila Sevinc under a proprietary lease with defendant Fulton House, a residential co-op corporation in Weehawken. Plaintiff asserts that Fulton House and its board of directors (collectively defendants) improperly appropriated a portion of his parking space and used it to store a snow blower and gasoline without his permission.

Plaintiff appeals from the April 25, 2014 judgment of the Law Division returning only a portion of the appropriated space to him and dismissing his claims for breach of the lease and defendants' fiduciary duties, damages, and prejudgment interest. Plaintiff also appeals from two April 24, 2013 orders granting defendants' motion for partial summary judgment and dismissing all of his claims against the individual board members, and his claims against Fulton House for discrimination and punitive damages.1 Fulton House has filed a cross-appeal challenging the trial court's April 25, 2014 decision to return a portion of the parking space to plaintiff, together with the court's declaration that certain other places in the parking garage should be treated as "common area" and not used by defendants for storage.

After reviewing the record in light of the contentions advanced by the parties, we affirm the trial court's April 25, 2014 order returning to plaintiff the portion of his parking space "in front of the concrete stopper all the way to the left wall" for reasons other than those expressed by the judge. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (citing Marchitto v. Central R. Co. of N.J., 9 N.J. 456 (1952)) ("It is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance."). However, we reverse the provision in the order declaring that the "space between the concrete stopper and the back wall" in all of the parking spaces "is common area wherein no items may be stored[,]" and therefore that "[a]ny storage must occur above the garage floor away from any tenants' parking spaces." As a result, plaintiff shall retain his entire parking space, including the portion between the concrete stopper and the back wall, and the trial court's designation of other places in the garage as "common area" is invalidated.

Finally, we affirm the court's April 25, 2014 order denying plaintiff's claims for breach of fiduciary duty, damages and prejudgment interest, and the April 24, 2013 orders denying his motion for summary judgment and granting partial summary judgment to defendants.

I.

We discern the following facts from the record developed at the two-day bench trial. Fulton House is an eight-floor co-op building with a full basement with two parking decks. There are eighteen parking spaces on each level. Fulton House issues 200 shares of "capital stock" to co-op unit owners who purchase a parking spot.2

When plaintiff purchased his co-op unit on August 12, 2009, he also purchased "Parking Space 9T" and received 200 shares of capital stock. At the time of these purchases, plaintiff entered into a propriety lease with Fulton House for the apartment unit, and a proprietary lease for the parking space. Except for designating one lease as pertaining to the apartment and the other to the parking space, the language used in the two leases was identical.3 The lease stated that the parking space was "allocated exclusively to the occupant of the [parking space]." In addition, the lease stated that, provided plaintiff was current in all of his obligations under the lease, he "shall, at all times during the term hereby granted, quietly have, hold and enjoy the [parking space] without any let, suit, trouble or hindrance from [Fulton House] . . . ."

The lease did not set forth the parking space's size, shape, or dimensions. However, the size and shape of the space were depicted on the architectural plans in the Fulton House Public Offering Statement and the plans were "drawn to scale . . . ."

The plans show that Parking Space 9T4 is located at a corner of the upper parking deck adjacent to two perpendicular perimeter walls. On the right side, plaintiff's parking space extends to a concrete column which supports the building above. The left side of the space extends to the wall. There is a concrete parking "stopper" in the front of the space that is centered between the column on the right and the wall on the left.

At a deposition that was read into evidence during the trial, one of the board members, John McIsaac, testified that there was no "standard size for parking spaces at . . . Fulton House[.]" This was caused by the irregular shape of the parking decks, which resulted in some of the owners, particularly those on the end of a row near a wall, having larger spaces. Plaintiff had one of the larger parking spaces, although there were several others that were as large as his. There were no white or yellow lines painted in plaintiff's space, or depicted in the architectural plans, limiting the boundaries of plaintiff's space to anything other than the column on the right and the wall on the left.

Plaintiff is a limousine driver and he needed a large space to park his Lincoln Town Car. He testified that the size of the space was important to him "because [his] car[] [is] very large and you know it's going to be easy going in and coming out." After visually inspecting parking space 9T, plaintiff determined that it met his requirements and purchased it.

From August 2009 until the spring of 2011, plaintiff parked in his space without incident. One day, however, plaintiff pulled into his space and found that a "metal box" had been placed in the left front side of his space near the wall. A couple of days later, plaintiff saw the building superintendent standing in the space installing metal strips to hold the box in place. The superintendent told plaintiff that Fulton House was going to relocate a snow blower to the front of his parking space and that the metal box would be used to store gas cans for the device.

Plaintiff met with the president of the Fulton House board of directors, Phillip Little, to complain. Plaintiff explained that "[t]he reason . . . [he] bought this place [was] because of [his] large car[,]" and that it would be difficult for him to fit his car into the space if the snow removal equipment was stored there. Little told plaintiff "it's not fair that [he had] this big . . . of [a] parking space [when] everybody has a smaller size."

Sometime thereafter, Fulton House had white and yellow lines painted on the left side of plaintiff's parking space all the way from the rear of his space to the front, where the snow blower and gas can container were now located. Plaintiff estimated that, due to the lines and the location of the equipment, the size of his parking space had been reduced by approximately one-third. Plaintiff testified that he could still get his limousine into the space, but he "need[ed] to pay more attention now" to avoid hitting the wall, the column, or other vehicles.

Little testified that the snow blower and gas cans had previously been stored in the "gas meter room" in the building's basement. After smelling "a faint odor of gasoline" in the room, Little5 reviewed the applicable "codes" and determined that it was unsafe to store this equipment in a closed room beneath ground level. He therefore advised the other Board members that a new location had to be found.

Little and the Board decided to place the equipment in the front left corner of plaintiff's parking space. Little testified that this location was chosen because it was "a well[-]ventilated area" and "out of the way so [the equipment] would not be struck by automobiles and interfere with automobile parking or traffic."

Little and the Board did not review plaintiff's lease, the architectural plans, or the Fulton House bylaws before placing the equipment in plaintiff's space. They also did not consult an attorney or seek plaintiff's permission before implementing their decision.

Little explained that each resident received the same number of shares (200) when they purchased their parking space. Therefore, he reasoned that the parking spaces should all be the same size. The two spaces to the right of plaintiff's space, one of which was owned by Little, were ten feet wide. Therefore, Fulton House had white and yellow lines painted on the left side of plaintiff's parking space limiting its width to ten feet.

Little admitted that there was nothing in the lease or Fulton House's "governing documents" limiting the width of each resident's parking space to ten feet or stating that, because each resident received the same 200 shares, all of the parking spaces had to be equal in size. Little testified that "[w]e have no [ten-]foot[-]wide allocation of space defined as such. We only set [plaintiff's] space at [ten] feet because the adjacent space was [ten] feet and it was convenient to do that."

There was also nothing in any of these documents designating any portion of the parking spaces as "common area" that could be used by the Board as it saw fit. Fulton House did not draw lines in the parking spaces of any of the other residents who had spaces as large as parking space 9T. Nevertheless, Little testified that the Board decided "that the wedge[-]shaped area [on the left side] of [plaintiff's] parking place was common area and that [they] could utilize it for the common good, the good of all of [their] residents."

On July 11, 2012, plaintiff filed a three-count amended complaint against Fulton House and five members of its board of directors. In count one, plaintiff alleged that defendants breached the proprietary lease, and sought a declaratory judgment that he was entitled to the entire parking space, and an order requiring defendants to remove the striped lines and equipment from the space. In count two, plaintiff alleged defendants had breached their fiduciary duties to him and, in count three, he asserted that defendants discriminated against him "due to his nationality and religion and possibly for other discriminatory purposes."6 Defendants filed an answer, denying plaintiff's allegations.

After the completion of discovery, each party filed a motion for summary judgment. On April 24, 2013, the motion judge denied plaintiff's motion, and partially granted defendants' motion by dismissing some of plaintiff's claims. The judge found that there were disputes of material fact concerning plaintiff's breach of the lease and breach of fiduciary duties claims that had to be resolved by way of trial. However, the judge found that plaintiff had submitted no evidence that the individual board members were involved in "self[-]help dealing . . . [or] fraud" and therefore, he dismissed the members from the case. The judge also found no factual support in the record for plaintiff's discrimination or punitive damages claims, and therefore, dismissed those claims as well. On May 24, 2013, the motion judge denied plaintiff's motion for reconsideration.

The bench trial that followed was conducted by a second judge (the trial judge). At its conclusion, the trial judge issued a written opinion. The judge found that the lease did not set forth the specific dimensions of the parking space plaintiff purchased and, therefore, his "claim to the parking space derives from his 200 shares of the stock agreement." Because Fulton House "has not in any way tried to take these shares from [p]laintiff[,]" the judge ruled that she could not find that Fulton House breached the lease.

In spite of this ruling, however, the judge found that Fulton House was

not free from wrongdoing in this matter. The Board has failed to (1) give [p]laintiff any notification of its plans to appropriate a portion of his space for gas container and snow blower storage or give [p]laintiff a chance to voice any objection to the storage of gasoline due to safety concerns, (2) appropriate "common area" by painting lines through portions of any other irregularly shaped parking spaces, or (3) comply with its own regulations regarding the storage of materials in parking spaces. Additionally, [p]laintiff's purpose for purchasing the unit at Fulton House was the easy access to a parking space that was large enough to park his limousine easily. [Fulton House's] unilateral appropriation of a portion of only the [p]laintiff's parking space in contravention of its own bylaws represents an injustice.

Thus, the judge stated that she would exercise her "ancillary equitable powers" under N.J. Const. art. VI, 3, 47 "and order[] [Fulton House] to remove the lines on [p]laintiff's space and return possession of this portion of the space." Because Fulton House's bylaws prohibited the storage of any "property other than the designated vehicle" in a parking space, the judge also ruled that Fulton House would "be required to store any items above the floor . . . and away from tenants' parking spaces, in accordance with the safety concerns expressed by both [p]laintiff and [d]efendant."

Although plaintiff's complaint did not seek, and Fulton House did not request, that the court designate any portion of the parking decks as "common area," the trial judge stated

Although there is an absence of common area designations in the documents creating the co-op, the [c]ourt heard testimony that the space between the concrete stopper and the back wall of the parking garage . . . is used by residents to walk to their cars. Coupled with the prohibition against storage of items in the garage, this equates to the type of common area the Board intended to appropriate. The Court did not hear testimony that the Board normalized other irregularly shaped spaces by the addition of painted yellow lines, or that the Board is permitted to store items in common areas of the garage but that residents are not. Accordingly, [p]laintiff shall receive full use of the space, excluding the common area between the stopper and the back wall. Further, absent amendment to the bylaws, the Board may not store items in the common area. Any storage must be mounted on the wall above the garage floor.

Thus, plaintiff did not get back the area of his parking space in front of the concrete stopper, where the front of his parked car rested.

The judge found that Fulton House did not breach its fiduciary duty to plaintiff because plaintiff presented "no evidence . . . that the Board was self-dealing or acting in bad faith, dishonestly, or incompetently when making its decision." The judge also found that plaintiff failed to establish any right to monetary damages as the result of Fulton House's appropriation of a portion of the parking space. The judge reasoned that plaintiff was still able to use the space during the course of the litigation; his limousine suffered no damage from the placement of the snow blower and gas cans in his space; and he retained his 200 shares of stock. This appeal and cross-appeal followed.

II.

We first address the parties' arguments concerning the April 25, 2014 order following the bench trial. Plaintiff contends the trial judge erred by failing to find that Fulton House breached the lease and by designating the area between the parking stopper and the wall as a "common area." Fulton House argues that no portion of the appropriated space should have been returned to plaintiff, but like plaintiff, also argues that the judge should not have designated any other spaces in the parking garage as common area.

We review the factual findings made by a trial judge to determine whether they are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citing N.J. Tpk. Auth. v. Sisselman, 106 N.J. Super. 358 (App. Div.), certif. denied, 54 N.J. 565 (1969)). Such findings made by a judge in a bench trial "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" Id.at 483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). Factual findings that "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case" enjoy deference on appeal. State v. Johnson, 42 N.J.146, 161 (1964). Questions of law, however, are subject to plenary review on appeal with no deference granted to the trial court's conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

Based upon our de novo review of the record, we are unable to agree with the trial judge's conclusion that Fulton House did not breach its proprietary lease with plaintiff when it appropriated a portion of plaintiff's parking space to store the snow blower and gas cans. As the judge found, the lease did not state the size, shape, or dimensions of parking space 9T. However, that should not have ended the inquiry. "The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales and Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super.487, 492 (App. Div.) (citing Jacobs v. Great Pac. Century Corp., 104 N.J.580, 582 (1986)), certif. denied, 127 N.J.548 (1991). In order to do so, the "language used must be interpreted 'in accord with justice and common sense.'" Ibid.(quoting Krosnowski v. Krosnowski, 22 N.J.376, 387 (1956)). "An agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a rational meaning in keeping with the express general purpose." Tessmar v. Grosner, 23 N.J.193, 201 (1957).

A "court has no right 'to rewrite [a] contract merely because one might conclude it might well have been functionally desirable to draft it differently.'" Karl's Sales, supra, 249 N.J. Super.at 493 (citing Levison v. Weintraub, 215 N.J. Super.273, 276 (App. Div.), certif. denied, 107 N.J.650 (1987)). Nor will a court "'make a better contract for [the] parties than they themselves have seen fit to enter into, or alter it for the benefit of one party and to the detriment of the other.'" James v. Fed. Ins. Co., 5 N.J.21, 24 (1950) (quoting Kupfersmith v. Del. Ins. Co., 84 N.J.L.271, 275 (E. and A. 1912)).

However, where the parties' intention is "doubtful or obscure, the most fair and reasonable construction, imputing the least hardship on either of the contracting parties, should be adopted so that neither will have an unfair or unreasonable advantage over the other." Tessmar, supra, 23 N.J.at 201 (citing Int'l Signal Co. v. Marconi Tel. Co. of Am., 89 N.J. Eq. 319 (Ch. 1918), aff'd, 90 N.J. Eq.271 (E. and A. 1919)); Washington Constr. Co. Inc. v. Spinella, 8 N.J.212, 217 (1951)). As our Supreme Court has explained

[e]vidence of the circumstances is always admissible in aid of the interpretation of an integrated agreement. This is so even when the contract on its face is free from ambiguity. The polestar of construction is the intention of the parties to the contract as revealed by the language used, taken as an entirety; and, in the quest for the intention, the situation of the parties, the attendant circumstances, and the objects they were thereby striving to attain are necessarily to be regarded. The admission of evidence of extrinsic facts is not for the purpose of changing the writing, but to secure light by which to measure its actual significance.

[Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 269 (2006) (quoting Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301-02 (1953)).]

Applying these principles to the facts of this case, it is clear that Fulton House breached the lease. Plaintiff purchased the parking space as identified in the architectural plans that were included with Fulton House's Public Offering Statement. Those plans showed that plaintiff's space went from the concrete column on the right of the space to the wall on the left. The parking space also encompassed the space in front of the concrete stopper, where the front of a vehicle would extend when parked. That concrete stopper was also located in the center of the space, lending further support to plaintiff's claim that the space ran from the column to the wall. Because the architectural plans clearly depicted the dimensions of the parking space, the fact that these dimensions were not also included in the lease is of no moment. Fulton House knew what it was selling and plaintiff knew what he was buying.

There was also absolutely nothing in the lease or the bylaws supporting Little's claim that all parking spaces had to have equal dimensions on the basis that each owner received 200 shares of stock with the purchase of a parking space. Plaintiff was not the only tenant with a larger parking space and there was no "standard size" for the spaces. Moreover, the Board took no action to "equalize" the size of any other tenant's parking space and had no identified plan for doing so.

Although the trial judge found that no breach occurred, she nevertheless concluded that Fulton House "appropriated" a portion of plaintiff's space when it placed the snow blower and gas cans in the front of the space and painted yellow and white lines on its left side, drastically reducing the width of the space. She also found that Fulton House gave no notice of its plans to plaintiff and violated its own bylaws by storing equipment in the parking space. These findings are all evidence of a breach of the lease.

Under these circumstances, we conclude that Fulton House breached its lease with plaintiff by appropriating a portion of his parking space. Thus, the judge did not have to rely upon the Law Division's "equitable powers" to order Fulton House to return the parking space to plaintiff. Although we do so for a reason that is different than that expressed by the judge, we affirm the judge's ruling that the portion of the space "in front of the concrete stopper all the way to the left wall" belongs to plaintiff and that Fulton House must "remove the lines that it painted in the appropriated space" and remove the snow removal equipment.8 See Isko, supra, 51 N.J. at 175.

Both plaintiff and Fulton House challenge the trial judge's decision designating the areas in front of the parking stoppers in the garage as "common areas" and limiting Fulton House's discretion as to how those areas are to be used. We agree that this ruling must be reversed.

Plaintiff argues that he should have access to the entire space, including the area in front of the stopper where the front of his parked car rests. For the reasons discussed above, plaintiff is entitled to his entire space as depicted in the architectural plans. Plaintiff'sspace isat theend ofthe row, adjacent to a wall. Thus, contrary to the judge's finding, no other tenants used the space in front of the stopper to get to their cars. Thus, we conclude that the judge mistakenly exercised her equitable powers in ruling that plaintiff should not retain his entire space.

We reach a similar conclusion with regard to the other parking spaces affected by this ruling. Plaintiff only requested relief concerning his own parking space. Neither party sought to designate any other location in the parking garage as a "common area" or to otherwise restrict defendants' ability to utilize properly-designated common areas in the garage in the future.

Therefore, we reverse and invalidate the portion of the April 25, 2014 order that states that the "space between the concrete stopper and the back wall is common area wherein no items may be stored[,]" and that "[a]ny storage must occur above the garage floor away from any tenants' parking spaces in accordance with the plaintiff's and [Fulton House's] safety concerns."

III.

After reviewing the parties' remaining contentions, we conclude that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

Plaintiff failed to establish that Fulton House or the board members breached their fiduciary duties to him. Directors of a corporation have a fiduciary relationship to the shareholders that requires them to act reasonably and in good faith in carrying out their duties. Daloisio v. Peninsula Land Co., 43 N.J. Super. 79, 89-90 (App. Div. 1956). The governing body of a condominium, like that of a board of directors, must meet the test of reasonableness. Papalexiou v. Tower W. Condo., 167 N.J. Super. 516, 526 (1979). "Courts will not second-guess the actions of directors unless it appears that they are the result of fraud, dishonesty or incompetence." Id. at 527 (citing Sarner v. Sarner, 62 N.J. Super. 41, 60 (App. Div. 1960), rev'd on other grounds, 38 N.J. 463 (1962)).

Here, Fulton House breached its lease with plaintiff when it appropriated a portion of his parking space. However, plaintiff presented no persuasive evidence that this mistake was "the result of fraud, dishonesty or incompetence." Little identified a possible safety hazard concerning the storage of the snow removal equipment in the basement. He and the other board members decided to store the equipment in the well-ventilated upper deck of the garage. The error they made was in appropriating the parking space of one of the tenants, rather than finding another location in the garage or elsewhere on the property, or storing the equipment off site. Plaintiff's breach of fiduciary duty claim against both Fulton House and the individual board members was therefore properly dismissed.

We also affirm the trial judge's determination that plaintiff failed to establish a claim for monetary damages and prejudgment interest. Plaintiff candidly admitted that, even though it was more difficult for him to do so, he was still able to park his limousine in the space. He was unable to demonstrate "an actual loss or injury suffered as a result of [Fulton House's] actions" that required monetary compensation. See Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 41 n.1 (1984). Therefore, the judge properly limited her judgment to an award of declaratory relief.

Turning to the motion judge's April 24, 2013 rulings on the parties' motions for summary judgment, we note that our standard of review is de novo, applying the same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Plaintiff argues that the motion judge should have granted his motion for summary judgment instead of ordering that the matter proceed to trial. We disagree. The judge found there were genuine issues of material fact that could not be resolved without a trial. As the bench trial that followed demonstrated, it was important for the parties to each present testimony concerning the circumstances surrounding the lease of the parking space. Therefore, plaintiff's breach of lease and fiduciary duty claims, together with his claim for damages, were properly referred for trial.

We are also satisfied that the motion judge correctly dismissed plaintiff's claims against the individual board members, and his claims for discrimination and punitive damages. Courts generally will not pierce the corporate veil unless there is fraud or injustice. Richard A. Pulaski Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 472 (2008). As discussed above, the board members mistakenly exercised their authority by locating the snow removal equipment in plaintiff's parking space. As the judge found, however, there is no evidence in the record to indicate that the members acted in bad faith or attempted to use their corporate form to perpetrate a fraud "'to defeat the ends of justice.'" Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 393 (App. Div. 1989) (quoting State Dept. of Environ. Protect v. Ventron Corp., 94 N.J. 473, 500 (1983)), certif. denied, 121 N.J. 607 (1990).

Plaintiff also failed to produce competent evidence that Fulton House or the board members discriminated against him based on his religion or nationality. During his deposition prior to the motion, plaintiff conceded that no one on the board ever asked him about his "ethnic background" and he never discussed either his faith or nationality with any of the members. No one on the board ever treated him rudely and plaintiff never had "any problems with anyone from the board at any time" prior to the placement of the snow removal equipment in his parking space. Under these circumstances, we agree with the motion judge that plaintiff failed to prove that the Board's explanation for choosing plaintiff's space to store the equipment was a pretext for discrimination. See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 455-56 (2005) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)) (holding that a plaintiff is not entitled to a jury trial on a discrimination claim unless he or she points to some direct or circumstantial evidence "'from which a factfinder could reasonably either (1) disbelieve the [defendant's] articulated legitimate reasons; or (2) believe than an invidious discriminatory reason was more likely than not a motivating or determinative cause of the [defendant's] action.'").

Finally, the motion judge properly dismissed plaintiff's claim for punitive damages. In order to make out a prima facie case for an award of punitive damages, a plaintiff must prove that the defendant's conduct was "particularly egregious." Dong v. Alape, 361 N.J. Super. 106, 116 (App. Div. 2003). Thus, a plaintiff must show by clear and convincing evidence that the harm complained of was the result of acts or omissions committed with "actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed . . . ." N.J.S.A. 2A:15-5.12(a). As previously discussed, plaintiff did not make this required showing. Although the board members mistakenly exercised their discretion, plaintiff failed to prove that they acted with "actual malice" or in "wanton and willful disregard" of plaintiff's rights. Ibid.

Affirmed in part, reversed in part.

1 Plaintiff also appeals from the May 24, 2013 order denying his motion for reconsideration. However, he does not raise any arguments in his appellate brief concerning this order and, therefore, we will not address it further in this opinion. See Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002).

2 Fulton House also issues stock to individuals who purchase a co-op unit in the building. There are fifty-seven residential units in the building.

3 It is clear that Fulton House simply used a form lease pertaining to apartments when it leased a parking space. Thus, plaintiff's lease for the parking space states the Fulton House "hereby leases to [plaintiff], and [plaintiff] hires from [Fulton House], subject to the terms and conditions hereof, Parking Space No. 9T in the building known as Fulton House (hereinafter called the apartment) for a term . . . [ending on] June 9, 2059 . . . ." Thus, references in the lease to "the apartment" are obviously references to the parking space rather than to plaintiff's co-op unit.

4 The architectural plans, which were prepared in 1987, list plaintiff's space as "10T" rather than "9T." However, the space was renumbered as "9T" before plaintiff purchased it in 2009.

5 Little was employed as "a degree mechanic." However, he was not qualified as an expert at trial.

6 In his appellate brief, plaintiff states that he is a Kurdish Muslim from Turkey.

7 N.J. Const. art. VI, 3, 4 states

Subject to rules of the Supreme Court, the Law Division and Chancery Division shall each exercise the powers and functions of the other division when the ends of justice so require, and legal and equitable relief shall be granted in any cause so that all matters in controversy between the parties may be completely determined.

8 In their appellate brief, defendants assert that they "fully complied with the judgment, removing the gasoline and snow blower and painting over the existing lines with grey paint."