JO MICELI v. BOROUGH OF CALDWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JO MICELI,

Plaintiff-Appellant,

v.

BOROUGH OF CALDWELL, their

agents and representatives of the

HEALTH DEPARTMENT,

CONSTRUCTION DEPARTMENT, and

T&L SPINELLI, LEE

SPINELLI and TOM SPINELLI,1

Defendants-Respondents,

and

ORGANIC FOR LIFE, LLC,

Defendant.

_________________________________________

July 25, 2016

Argued May 25, 2016 Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7136-12.

Jo Miceli, appellant, argued the cause pro se.

Adam Kenny argued the cause for respondent Borough of Caldwell (Weiner Lesniak LLP, attorneys; Mr. Kenny, on the brief).

Seth M. Garrod argued the cause for respondents Lee and Tom Spinelli (Morrison Mahoney LLP, attorneys; Mr. Garrod, on the brief).

PER CURIAM

Plaintiff Jo Miceli appeals from the order of the Law Division dismissing her cause of action against her landlords, Thomas Spinelli and Lee Spinelli, and the Borough of Caldwell (Borough). After the discovery period ended,2 Judge Garry J. Furnari granted defendants' motions for summary judgment. Reviewing the factual claims in the light most favorable to plaintiff, Judge Furnari concluded plaintiff was not entitled to any relief as a matter of law. We affirm.

On September 27, 2012, plaintiff filed a pro se civil complaint against the Borough, the Spinellis, and a restaurant named Organic for Life, LLC. In the first count of the complaint, plaintiff described the Spinellis as both her landlords and the owners of a commercial property adjacent to the building where her apartment is located. She alleged the Spinellis leased a section of this commercial property to a business entity called "Organic for Life," the owners of which renovated the space to operate a restaurant, caterer, and weight loss center.

As part of these renovations, Organic for Life installed an exhaust fan, which was "located in direct line with plaintiff's dining room windows, which fan does expel toxic fumes from the gas lines of cooking apparatus, heat and smoke and cooking odors that [are] harmful to plaintiff's health." Plaintiff claimed these "emissions" contaminate the air and create a health nuisance that "cause[s] respiratory problems and other fatal illnesses." She also claimed "the exhaust fan is an excessive noise operating at an unacceptable decibel output level of 63.4," even though when it was monitored it registered "under the legal decibel of 65."3

From this point on, plaintiff's complaints are directed against the Borough. She alleges the Borough failed to ascertain the operating mode of the fans on the day it inspected the equipment. As a consequence, she can no longer open her dining room window, "thereby impacting her quality of life." The renovations performed by Organic for Life included constructing a new side door "creating high foot traffic of strangers located in close proximity to plaintiff's private entrance." The side door also subjects plaintiff "to the danger of strangers when she enters and exits her building and is a trespass nuisance of her rights." (Emphasis added).

The Borough also issued a permit to Organic for Life to construct a second exhaust fan outlet nearby the newly constructed side entrance. Plaintiff claims this fan "also expels heat and toxins in a force of hot air which does come in direct contact with plaintiff's physical body and respiratory system when she enters and exits her private entrance."

In the second count of the complaint, plaintiff alleged the Borough's public officials used their authority to violate her rights. With respect to the Spinellis, plaintiff alleged they permitted Organic for Life to construct the restaurant knowing it would "impact the health, safety, peace and quality of [her] life" and failed to do anything "to stop it due to socio-economic factors which is an act of discrimination." Plaintiff further claims Organic for Life had alternative options to renovate the commercial property, but recklessly disregarded them to violate her rights as a residential tenant.

Plaintiff characterized the patrons of Organic for Life as "strangers" who would be "at or near [her] door." She would encounter these patrons "upon ingress and egress" thereby allegedly compromising her safety. The noise and air contamination made it "impossible for plaintiff to open her window." Plaintiff characterized these acts by Organic for Life as "unreasonable and reckless disregard for others" and "an act of discrimination to benefit [the Spinellis' and Organic for Life's] own socio-economic gains."

Plaintiff sought to hold the Borough, its agents, and its public officials liable for monetary damages, "jointly, individually and severally." She also sought punitive and compensatory damages, including interest and cost of suit "as the Court deems just and appropriate in the amount of $7,000,000.00 and the removal of all three constructed objects that interfere with [her] health, safety and quiet enjoyment of life."

On October 25, 2013, Judge Furnari heard oral argument on the Borough's and the Spinellis' motions for summary judgment. In response to Judge Furnari's question, plaintiff clarified that the allegations she had against the Borough were based on its failure to conduct proper inspections of the property leased by Organic for Life. The Borough argued that under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3, the municipality was immune from

an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or public employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked.

[N.J.S.A. 59:2-5.]

With respect to the Spinellis, plaintiff conceded in her deposition taken on April 24, 2013, that the hot exhaust fan that was allegedly blowing hot air into her dining room window was no longer a problem because Organic for Life ceased business operations in December 2012. Hence, all three specific problems plaintiff alleged were the basis of her cause of action the toxic emissions, the noisy fan, and the danger associated with pedestrian traffic of restaurant's patrons had stopped five months before her deposition, and nearly a year before the matter came before the Law Division for oral argument on defendants' motions for summary judgment.

In the course of her deposition, plaintiff was also unable to identify any specific regulation, statute, or code that the Spinellis had violated in the course of leasing the commercial space to Organic for Life. In an effort to provide a pro se litigant with a fair opportunity to access the court, Judge Furnari struggled to articulate a cognizable legal theory of liability that would give meaning to plaintiff's complaint. We commend Judge Furnari for his efforts as being consistent with the judiciary's mission of providing justice under law.

Thus, Judge Furnari suggested the common law tort of nuisance best fit plaintiff's cause of action. Ultimately, Judge Furnari was unable to overcome the public policy of sovereign immunity enacted by the Legislature in the TCA. As our Supreme Court has made clear: "The theme of the [TCA] is immunity for public entities with liability as the exception." Gilhooley v. Cty. of Union, 164 N.J. 533, 538 (2000) (citing Collins v. Union Cty. Jail, 150 N.J. 407, 413 (1997)). Even in cases where "both liability and immunity appear to exist, the latter trumps the former." Tice v. Cramer, 133 N.J. 347, 356 (1993). Here, the question is not even close. N.J.S.A. 59:2-5 confers immunity to the Borough for any claims arising from performing the type of governmental function plaintiff has identified as the basis of claims.

Plaintiff's cause of action against the Spinellis fails as a matter of law even assuming it was rooted in the common law tort of nuisance. Our Supreme Court recently reaffirmed that "[a] cause of action for private nuisance derives from the defendant's 'unreasonable interference with the use and enjoyment' of the plaintiff's property." Ross v. Lowitz, 222 N.J. 494, 505 (2015) (quoting Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 448 (1959); James v. Arms Tech., Inc., 359 N.J. Super. 291, 329 (App. Div. 2003)). We are satisfied that it was entirely reasonable for the Spinellis to rely on the tenant's compliance with municipal construction requirements with respect to smoke emissions from the kitchen's exhaust fans.

In an action for private nuisance based on noise a plaintiff must show: "(1) injury to the health or comfort of ordinary people to an unreasonable extent, and (2) unreasonableness under all the circumstances, particularly after balancing the needs of the maker to the needs of the listeners." Traetto v. Palazzo, 436 N.J. Super. 6, 12 (App. Div. 2014) (quoting Malhame v. Borough of Demarest, 162 N.J. Super. 248, 261 (Law Div. 1978), appeal dismissed, 174 N.J. Super. 28 (App. Div. 1980)). To prevail in such an action a plaintiff "bears the burden of proving each element by clear and convincing evidence." Ibid. We review the grant of a motion for summary judgment de novo. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). Giving plaintiff all favorable inferences, she has not presented sufficient evidence to establish a prima facie case for the tort of private nuisance based on noise.

We affirm substantially for the reasons expressed by Judge Furnari. The other arguments plaintiff has raised in this appeal do not have sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Improperly captioned by the parties as Lisa Spinelli and Thomas Spinelli.

2 The only discovery consisted entirely of interrogatories answered by plaintiff and a follow up deposition of plaintiff.

3 Plaintiff did not identify a statute, regulation, or other authoritative source to support this claim.