BARRY HIRSCHBERG v. BOROUGH OF NORTHVALE PLANNING BOARD

NOT FOR PUBLICATION WITHOUT THE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-4778-15T2

BARRY HIRSCHBERG and
ELIZABETH HIRSCHBERG,

        Plaintiffs-Appellants,

v.

BOROUGH OF NORTHVALE PLANNING
BOARD, BOROUGH OF NORTHVALE,
JORGE PEREZ, EMMA PEREZ, and
NER FAMILY ASSOCIATES, LLC,

     Defendants-Respondents.
_______________________________

              Argued January 17, 2018 – Decided February 2, 2018

              Before Judges Fuentes, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-6154-15.

              Barry Hirschberg, appellant, argued the cause
              pro se.

              Gregg F. Paster argued        the cause for
              respondent Borough of Northvale Planning Board
              (Gregg F. Paster & Associates, attorneys;
              Gregg F. Paster, of counsel and on the brief;
              Alfred A. Egenhofer, on the brief).
            Antimo A. Del Vecchio argued the cause for
            respondent NER Family Associates (Beattie
            Padovano, LLC, attorneys; Antimo A. Del
            Vecchio, of counsel; Daniel L. Steinhagen, on
            the brief).

PER CURIAM

     Barry and Elizabeth Hirschberg (Hirschbergs) appeal from an

order    granting   summary   judgment   in   favor   of   the   Borough    of

Northvale Planning Board (Board), and NER Family Associates, LLC

(NER).    The order dismissed the Hirschbergs' action in lieu of

prerogative writs.1

     On appeal, the Hirschbergs raise the following arguments:

            POINT [I]

            SUMMARY JUDGMENT SHOULD BE OVERTURNED BECAUSE
            THERE REMAIN SEVERAL MATTERS OF MATERIAL FACT
            UNRESOLVED AND BECAUSE THE LOWER COURT JUDGE
            COMMITTED PLAIN AND/OR HARMFUL ERROR.

            POINT [II]

            PLAINTIFFS WERE DENIED THE RIGHT TO HAVE THEIR
            CASE HEARD AND DECIDED AT TRIAL BASED UPON THE
            APPROPRIATE    STANDARD    FOR   DECIDING    A
            PREROGATIVE WRITS ACTION, WHICH REQUIRES THE
            COURT TO FIND IF THE PLANNING BOARD'S DECISION
            IS ARBITRARY, CAPRICIOUS OR UNREASONABLE.

            POINT [III]

            DEFENDANT'S INTENTIONAL MISREPRESENTATIONS
            AND LACK OF CANDOR TO THE PLANNING BOARD AND

1
  The order also denied the NER Family Associates', LLC, claim for
counsel fees based on its argument that the Hirschbergs' argument
was frivolous.    NER filed a cross-appeal, which it withdrew on
January 10, 2017.

                                    2                                A-4778-15T2
           THE TRIAL COURT LEAD TO THE ERRORS MADE BY
           JUDGE FRISCIA AND TO THE LOWER COURT'S
           ERRONEOUS GRANTING OF SUMMARY JUDGMENT.

           POINT [IV]

           JUDGE FRISCIA ERRED WHEN SHE IGNORED THE FACT
           THAT JUDGE CONTILLO AMENDED AND CLARIFIED HIS
           MARCH 3, 2019 ORDER2 AFTER THE FORM OF JUDGMENT
           HEARING ON MAY 5, 2009[,] WHICH WAS REFLECTED
           IN HIS SELF AUTHORED MAY 5, 2009 FINAL
           JUDGMENT.

           POINT [V]

           EVEN IF PRIOR LITIGATION HAD SOMEHOW IMPARTED
           DOMINANT EASEMENT RIGHTS TO THE THREE NER LOTS
           THEREBY GRANTING ACCESS TO THOSE LANDLOCKED
           PARCELS, THOSE RIGHTS WOULD AND COULD NOT
           LEGALLY TRANSFER TO THE PEREZ PROPERTY OR TO
           ANY OTHER PROPERTY, THEREFOR APPLICANT WOULD
           NOT HAVE STREET ACCESS TO ALL THE PROPERTY
           THAT WAS THE SUBJECT OF THE SUBDIVISION
           BECAUSE BY LAW, ANY SUCH RIGHTS WOULD AND
           COULD NOT BENEFIT THE PEREZ PROPERTY OR ANY
           OTHER PROPERTY.

           POINT [VI]

           NER DEFENDANT ROBERT U. DEL VECCHIO COMES TO
           COURT WITH UNCLEAN HANDS. (ISSUE NOT RAISED
           BELOW).

     Having reviewed the record and considered the Hirschbergs'

arguments and the applicable law, we are convinced that these

arguments lack sufficient merit to warrant discussion in a written

opinion.   R. 2:11-3(e)(1)(E).   Suffice it to state that contrary


2
   This date is incorrect.    The decision by Judge Contillo, to
which the Hirschbergs' refer, was issued on March 3, 2009 in
Smothergill v. Hirschberg, BER-C-345-07 (Ch. Div. March 3, 2009).

                                 3                           A-4778-15T2
to their repeated assertions, their arguments find no support in

the record or have already been considered and rejected by the

courts.

    We affirm for the reasons set forth in the comprehensive

written opinion of Judge Lisa Perez Friscia, which is supported

by substantial credible evidence.   Rova Farms Resort, Inc. v.

Investors Ins. Co. of Am., 
65 N.J. 474, 483-84 (1974); R. 2:11-

3(e)(1)(A).

    Affirmed.




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