BARRY HIRSCHBERG ELIZABETH HIRSCHBERG v. BOROUGH OF NORTHVALE PLANNING BOARD BOROUGH OF NORTHVALE JORGE PEREZ EMMA PEREZ NER FAMILY ASSOCIATES LLC (2018)

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 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 ORDER 2 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 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.

FOOTNOTES

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.   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).

PER CURIAM