RITZ CONDOMINIUM ASSOCIATION INC v. MELVIN THOMAS (2011)

Defendant Melvin K. Thomas appeals from an order granting summary judgment to plaintiff, Ritz Condominium Association, Inc., and entering judgment against him for $11,371.20.   We affirm, substantially for the reasons set forth in the oral opinion of Judge Joseph L. Marczyk, and review the salient facts as follows.

Plaintiff is a non-profit condominium corporation, authorized by its Master Deed and By–Laws and the New Jersey Condominium Act, N.J.S.A. 46:8B–1 to –38, to manage and govern the affairs of a 330–unit condominium on the boardwalk in Atlantic City. Defendant owns one of the units in the condominium.

Article X, paragraph 3, of plaintiff's By–Laws, titled “Additions, Alterations or Improvements by the Association,” states in pertinent part:

Whenever in the judgment of the Board, the common elements require improvements costing in excess of Ten Thousand ($10,000) Dollars, said improvements shall be made only if they have been approved by a majority of votes of members at a meeting of members at which a quorum is present.   When said approval has been obtained, all unit owners shall be assessed for the cost thereof as a common expense.   In the event of any emergency which shall cause damage to the Condominium property or any part thereof, the Board may expend sums in excess of Ten Thousand ($10,000) Dollars to protect said property and the judgment of the Board shall be final.

[Emphasis added.]

In 2005, plaintiff hired Jonathan Rosenkrantz, a consulting engineer, to inspect and report on the condition of the pool deck and steel supporting structure at the property.   Based upon his reports, the Board of Directors closed the pool in July 2006.   In November 2006, Rosenkrantz opined that the state of portions of the structure was such that there was a danger of imminent collapse and recommended that the entire pool be demolished and replaced.   In July 2007, the Board of Directors (the Board) unanimously approved the final costs of $3,576,964 “for this ongoing emergency pool project” and, after deducting $200,000 from the sale of a unit owned by the Association, unanimously approved “an Emergency Assessment of the membership for $3,376,964 to fund the pool project.”

In August 2007, each owner was advised of his or her proportionate share of this assessment.   Defendant was sent an assessment worksheet stating his assessment was $8,357 and due on October 1, 2007.   Defendant did not agree that there was a genuine emergency to justify the emergency assessment and did not pay the assessment.   In January 2010, plaintiff filed suit to recover the outstanding assessment money from defendant.

Defendant filed a motion to dismiss the complaint.   Plaintiff filed a cross-motion for summary judgment, seeking the sum of $10,212 plus counsel fees pursuant to Article VI, paragraph 9 of the By–Laws.   The court denied defendant's motion, granted plaintiff's motion and entered judgment on behalf of plaintiff in the amount of $11,371.20.

Defendant presents the following issues on appeal:

POINT I

AS A MATTER OF LAW, SUMMARY JUDG[ ]MENT SHOULD BE DENIED TO PLAINTIFF [ ] BECAUSE THERE ARE GENUINE MATERIAL ISSUES OF FACT AND THE DEFENDANT IS ENTITLED TO HAVE A FULL AND FAIR OPPORTUNITY TO DEMONSTRATE THROUGH PRESENTATION OF HIS CASE[,] AND THROUGH EXAMINATION OF DISCOVERY[,] AND THROUGH EXAMINATION OF POTENTIAL WITNESSES[ ] THERE IS DEFINITELY A DISPUTE WITH REGARDS TO THE MATERIAL FACTS OF THIS CASE.

POINT II

IN THE PAPALEXIOU V. TOWER WEST CONDOMINIUM CASE, IT WAS DETERMINED THAT AN EXTREME EMERGENCY DID EXIST.   IT WAS ALSO DETERMINED THAT THE BOARD ACTED IN GOOD FAITH IN CARRYING OUT THEIR RESPONSIBILITIES.   UNLIKE THE PAPALEXIOU CASE, THE PLAINTIFF[ ] DID NOT ACT IN GOOD FAITH WHEN THEY DECLARED A SO CALLED EMERGENCY SITUATION WITH REGARDS TO THE POOL DECK, AND WITHIN A NINE (9) MONTH PERIOD NEVER TOOK ANY PRECAUTIONARY MEASURES;  NOR DID THEY EVER WARN ANY UNIT OWNERS OF ANY IMPENDING DANGER.   THE PLAINTIFF[ ] IN THIS CASE DID NOT TAKE ANY IMMEDIATE ACTION THAT RELATES TO AN EMERGENCY, AND THE $3,400[,]000.00 AMOUNT THAT WAS LEVIED ON THE UNIT OWNERS IS WAY OUT OF PROPORTION AS TO WHAT THE ACTUAL[ ] COST WAS TO REMEDY THE SO CALL[ED] EMERGENCY REPAIR.

POINT III

THREE (3) SPECIFIC PROCEDURAL ERRORS HAVE OCCURRED DURING THESE PROCEEDINGS, E.G., (1) PLAINTIFF[']S FAILURE TO FILE A MOTION FOR RECONSIDERATION AS PURSUANT TO RULE 4:49–2, (2) PLAINTIFF[']S FAILURE TO COMPLY WITH RULE 4:46–2(a)  WHICH REQUIRES THAT THE MOTION FOR SUMMARY JUDGMENT SHALL BE SERVED WITH A STATEMENT OF MATERIAL FACTS.  (3) PLAINTIFF[']S FAILURE TO GIVE APPELLANT A WRITTEN NOTICE OF THE ACTION TAKEN AND OF THE ALLEGED BASIS FOR THE ACTION, AND IS ADVISED OF THE RIGHT TO PARTICIPATE IN A DISPUTE RESOLUTION PROCEDURE IN ACCORDANCE WITH SUBSECTION (k) OF SECTION 14 OF P.L.1969, c.257(C.46:8b–14).   A UNIT OWNER WHO DOES NOT BELIEVE THAT THE DISPUTE RESOLUTION PROCEDURE HAS SATISFACTORILY RESOLVED THE MATTER SHALL NOT BE PREVENTED FROM SEEKING A JUDICAL REMEDY IN A COURT OF COMPETENT JURISDICTION.

After carefully considering the record and briefs, we are satisfied these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11–3(e)(1)(E), and affirm, substantially for the reasons set forth by Judge Marczyk.   We add only the following brief comments.

In its summary judgment motion, plaintiff asserted that the assessment against defendant was a proper exercise of its authority under the emergency assessment provision in the By–Laws.   The By–Laws explicitly provide that “the judgment of the Board [to make the emergency expenditure] shall be final.”   Here, the Board relied upon the reports and opinion of an engineer that the structure was in danger of imminent collapse in making the determination that an emergency existed.

In opposing summary judgment, defendant argues that genuine and material issues of fact exist, specifically as to whether an actual emergency existed.   Defendant challenges the sufficiency of the Rosenkrantz reports to support that conclusion.   However, defendant presented no evidence to the court to counter Rosenkrantz's opinion.

To withstand summary judgment, defendant was required to present affirmative evidence that is competent and shows that there is a genuine issue for trial.   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57, 106 S.Ct. 2505, 2514, 91 L. Ed.2d 202, 217 (1986);  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995) (“[A] court should deny a summary judgment motion only where the party opposing the motion has come forward with evidence that creates a ‘genuine issue as to any material fact challenged.’ ”).   An opponent may not prevail merely by questioning the credibility of the movant's evidence, Anderson, supra, 477 U.S. at 256–57, 106 S.Ct. at 2514, 91 L. Ed.2d at 217, or presenting mere “speculation” or “fanciful arguments.”  Hoffman v. Asseenontv.Com, Inc., 404 N.J.Super. 415, 426 (App.Div.2009).

In addition to failing to present any competent evidence to challenge the Rosenkrantz opinion, defendant failed to present any evidence to show bad faith on the part of the Board in concluding that an emergency existed.  “Absent a demonstration of the board's lack of good faith, self-dealing, dishonesty or incompetency, its determination that an emergency existed should not be judicially reviewed.”  Papalexiou v. Tower W. Condo., 167 N.J.Super. 516, 528 (Ch. Div.1979).   In short, defendant failed to present competent evidence that demonstrated the existence of a genuine factual issue as to either the fact that an emergency existed or the bad faith of the Board.

Affirmed.

PER CURIAM