MAYWOOD REALTY ASSOCIATES LLC v. JOS. L. MUSCARELLE INVESTMENT CO., INC

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2304-16T4

MAYWOOD REALTY ASSOCIATES,
LLC, and VANGUARD SURGICAL
CENTER, LLC,

        Plaintiffs-Appellants,

v.

JOS. L. MUSCARELLE INVESTMENT
CO., INC.,

     Defendant-Respondent.
_____________________________________

              Argued telephonically April 20, 2018 –
              Decided May 1, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-6308-16.

              Bob Kasolas argued the cause for appellants
              (Brach Eichler, LLC, attorneys; Bob Kasolas,
              of counsel and on the briefs).

              Joseph B. Fiorenzo argued the cause                  for
              respondent   (Sills  Cummis   &  Gross,              PC,
              attorneys; Joseph B. Fiorenzo, of counsel            and
              on the brief; Michael J. Sullivan, on                the
              brief).

PER CURIAM
     Maywood Realty Associates, LLC (MRA) and Vanguard Surgical

Center, LLC (VSC), (collectively plaintiffs) appeal from an August

22, 2016 order granting Jos. L. Muscarelle Investment Co., Inc.

(JLM)   summary   judgment   on   count   one   of   plaintiffs'   amended

complaint.   We affirm.

     MRA owns 113 West Essex Street, Maywood, New Jersey (MRA

property).   VSC is a tenant of the MRA property, and operates a

medical surgical practice in the building situated on the property.

JLM owns 99 West Essex Street, Maywood, New Jersey (JLM property).

The MRA property and JLM property are adjacent and contiguous to

one another along West Essex Street.

     As a result of various condemnation actions by the State, JLM

and MRA share a driveway that provides ingress to and egress from

both properties.    MRA and MRA's predecessor were granted easement

rights to access the property by means of the shared driveway.

The easement also entitled JLM to shared use of the driveway and

charged it with maintaining the shared driveway.         MRA is obligated

to reimburse JLM for all reasonable maintenance costs.

     The shared driveway is perpendicular to West Essex Street and

is marked by a traffic light.      An entrance ramp to Route 17 is in

close proximity to the intersection of the shared driveway and




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West Essex Street.   Motorists have mistakenly entered the shared

driveway, believing that it was the Route 17 entrance ramp.

      JLM placed large planters to create a median in the shared

driveway to prevent motorists from mistaking the easement for the

Route 17 entrance ramp.     In 2011, JLM replaced the planters with

three removable bollards.

      In February 2015, plaintiffs filed their complaint against

JLM alleging that the installation of the bollards breached their

rights to the easement, and that JLM failed to properly maintain

the shared driveway.1 JLM filed a counter-claim alleging trespass.

      Plaintiffs moved for partial summary judgment on JLM's breach

of easement rights claim, and JLM moved for summary judgment.2    The

judge granted JLM's motion for summary judgment by dismissing

plaintiffs' allegation that JLM breached their easement rights.3

      Plaintiffs allege that the judge erred in granting JLM summary

judgment because the undisputed facts show that the installation

of the bollards unreasonably changed the character of the easement


1
   Plaintiffs amended their complaint to add a third count for
nuisance; yet later amended the complaint, and removed the nuisance
claim.
2
    JLM agreed to dismiss its counter-claim for trespass.
3
   The judge denied JLM's motion for summary judgment regarding
JLM's failure to properly maintain the easement. The issue was
transferred to the Law Division where the parties settled and
filed a consent order.

                                  3                          A-2304-16T4
and burdened plaintiffs' use.          Plaintiffs also contend that the

judge erred in admitting and referencing improper evidence.

      When reviewing an order granting summary judgment, we apply

"the same standard governing the trial court."             Oyola v. Liu, 
431 N.J. Super. 493, 497 (App. Div. 2013).          We owe no deference to the

motion judge's conclusions on issues of law. Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995).                      We

review the evidence presented in the light most favorable to the

non-moving party.      Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 523 (1995).

      Plaintiffs    argue    that   JLM    provided    improper    lay   witness

testimony regarding a reduction in trespassing vehicles entering

the shared driveway.        N.J.R.E. 701 permits lay witness testimony

to be admitted if it "(a) is rationally based on the perception

of the witness and (b) will assist in understanding the witness'

testimony or in determining a fact in issue."                  "[A] lay witness

may   give   an    opinion    on    matters    of     common     knowledge    and

observations."     State v. Bealor, 
187 N.J. 574, 586 (2006) (quoting

State v. Johnson, 
120 N.J. 263, 294 (1990)).                   Expert testimony

is required when the topic in controversy involves a subject matter

that is "so esoteric that jurors of common judgment and experience

cannot form a valid judgment."            Butler v. Acme Markets, Inc., 
89 N.J. 270, 283 (1982).

                                      4                                  A-2304-16T4
     Both JLM's president and employee testified that in their

opinion, based upon personal observation, they believed that less

vehicles entered the property partially due to the installation

of the bollards.       The testimony is not beyond the common knowledge

of any fact-finder, and does not require an expert to determine

if less cars have entered the property.             The judge did not err in

considering the testimony.

     Plaintiffs also contend that the judge improperly relied upon

hearsay     statements      by   the   Maywood   Fire   Department   Chief   and

evidence of a fire truck entering the property that was not

disclosed during discovery.            We agree with plaintiffs that both

the hearsay statements and evidence were improperly considered in

granting JLM's summary judgment motion.             We exclude the evidence

in our de novo review.

     An     easement   is    a   "nonpossessory    incorporeal    interest    in

another's possessory estate in land, entitling the holder of the

easement to make some use of the other's property."                   Leach v.

Anderl, 
218 N.J. Super. 18, 24 (App. Div. 1987).                 The landowner

burdened by the easement, or the servient owner, "may not, without

the consent of the easement holder, unreasonably interfere with

the latter's rights or change the character of the easement so as

to   make    the    use     thereof     significantly    more    difficult    or

burdensome."       Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J.

                                          5                            A-2304-16T4
591, 604 (1964).          "Equally well recognized is the corollary

principle that there is, arising out of every easement, an implied

right   to   do    what   is   reasonably   necessary   for   its   complete

enjoyment, that right to be exercised, however, in such reasonable

manner as to avoid unnecessary increases in the burden upon the

landowner."       Ibid.

     A landowner should "not be burdened to a greater extent than

was contemplated or intended at the time of the creation of the

easement . . . and the use of the easement must not unreasonably

interfere with the use and enjoyment of the servient estate."

Hyland v. Fonda, 
44 N.J. Super. 180, 189 (App. Div. 1957) (quoting

Lidgerwood Estates, Inc. v. Public Serv. Elec. & Gas Co., 
113 N.J.

Eq. 403, 407 (Ch. 1933)).

     Plaintiffs assert that the installation of the bollards have

altered the traversable width of the shared driveway and the

turning radius, making it difficult for vehicles to enter the

properties.       Plaintiffs also contend that many vehicles have hit

the bollards, or have been forced to back up onto West Essex Street

before entering the properties.

     The record reveals that the bollards are six inches wide and

placed in the center of the shared driveway.             The bollards are

located within the pre-existing double yellow lines that divide

the ingress and egress lanes, and if necessary, may be removed by

                                      6                              A-2304-16T4
one person.   Although the record evinces that the bollards have

been occasionally struck by vehicles, plaintiffs have failed to

demonstrate that any patients, vendors or employees of MRA, VSC,

or JLM have been unable to enter the properties due to the

bollards. Lastly, plaintiffs also failed to provide expert traffic

testimony regarding the traversable width of the shared driveway,

and the effect of the bollards in accessing the properties.

     The language of the easement is clear and unambiguous.     JLM

has the right to maintain the easement.   Although the language of

the easement does not expressly state that the installation of the

bollards is permitted, JLM argues the installation was necessary

to maintain the easement from being confused as the Route 17

entrance ramp.   Thus, JLM has exercised its "implied right to do

what is reasonably necessary for its complete enjoyment, . . . in

such reasonable manner as to avoid unnecessary increases in the

burden upon the landowner."   Tide-Water Pipe Co., 
42 N.J. at 604.

The record fails to show any material evidence to demonstrate that

the bollards have "unreasonably interfere[d] with [plaintiffs']

rights or change[d] the character of the easement so as to make

the use thereof significantly more difficult or burdensome." Ibid.

Reviewing the record in the light most favorable to plaintiffs,

we conclude the judge properly granted JLM's motion for summary

judgment.

                                 7                         A-2304-16T4
Affirmed.




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