Thomson v. Atlantis Condo. Ass'n

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LYNDA THOMSON, Plaintiff-Appellant, v. ATLANTIS CONDOMINIUM ASSOCIATION, GREGORY WIND, GAIL WIND, DEBORAH STRANO, DAVID SHUM, JUSTINE CHAMBERLAIN, and DARLENE RIVERA, Defendants-Respondents and RADAMES RIVERA, KAREN MESISCA, ANDRES FERNANDEZ, DANA FERNANDEZ, THE MALMAN TRUST, SUSAN WETHERELL, JAMES COCCARO, JEAN COCCARO, ROBERT GERONEMO, GINA STELLUTI, MARIA MIGLIORE, ROBERT MANCUSO, BETH ANN MANCUSO and PETER COMPETIELLO, Defendants.

No. A-2561-20

Superior Court of New Jersey, Appellate Division

August 7, 2023

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.

Submitted March 28, 2023

On appeal from the Superior Court of New Jersey, Law Division Ocean County, Docket No. L-1488-18.

Steven D. Janel, attorney for appellant.

Goldberg Segalla LLP, attorneys for respondents Atlantis Condominium Association, Gregory Wind, Gail Wind, Deborah Strano, David Shum, Justine Chamberlain, and Darlene Rivera (Michael P. Luongo, on the brief).

Before Judges Messano and Gummer.

PER CURIAM

In this condominium-repair dispute, plaintiff Linda Thomson appeals an order granting defendants' summary-judgment motion. Perceiving no genuine issue of material fact, we affirm.

I.

We discern the material facts from the summary-judgment record, viewing them in a light most favorable to plaintiff, the non-moving party. See Rivera v. Cherry Hill Towers, LLC, 474 N.J.Super. 234, 238 (App. Div. 2022).

The Atlantis Condominium Association is a New Jersey non-profit corporation that operates the Atlantis Condominium in Seaside Heights. The Association is managed by a board of officers, consisting of a president, vice president, treasurer, and secretary, who are unit owners (the Board). The property consists of fifteen units located on four levels.

In 2005, plaintiff purchased Unit A3, which is located on the ground level. She purchased it as a second home and has never resided there.

Defendants Gregory Wind and Gail Wind were president and secretary of the Association, respectively, in 2012 and own Unit C4. Defendant Deborah Strano was vice president of the Association in 2012 and owns Unit B2. Defendant David Shum was treasurer of the Association in 2012 and owned Unit B4, which he sold in May 2017. Defendant Justine Chamberlain purchased Unit D2 in March 2016 and became vice president on April 1, 2017. Defendant Darlene Rivera purchased Unit A1 in April 2017 and became treasurer in or about May 2017. We refer to these defendants as "the Board defendants "and refer to the Association and the Board defendants collectively as "defendants."

In April 2012, plaintiff's unit sustained damages. According to defendants, a sewer back-up caused the damages. According to plaintiff, the damage was caused by "effluence entering into her unit from damaged pipes in the unit directly above," which was Unit B4, and resulted in plaintiff being "displaced" from her unit. That same month, the Association contacted contractors to remediate the damages. According to plaintiff, her unit was not "ever properly repaired."

While plaintiff still was "displaced" from her unit, the three ground-level units sustained extensive damage from Hurricane Sandy in October 2012. An insurance adjuster determined those units, including plaintiff's unit, to be a total loss, requiring walls and wiring to be stripped and rebuilt. The units located above the ground level were not directly damaged by Hurricane Sandy.

Following Hurricane Sandy, the Association took action to assist unit owners, including meeting with contractors regarding damage repair and remediation and obtaining insurance proceeds from the Association's insurers. Mold remediation was performed on the ground-floor units, including plaintiff's unit, in January 2013, and additional plumbing and electrical work was performed in 2013.

According to defendants, the Association had to prioritize the order in which the ground-floor units were repaired; it gave first priority to Unit A2 because its elderly and disabled owner resided there and second priority to Unit A1 because full-time tenants resided there; and it gave last priority to plaintiff's unit because it was not her primary residence and no tenants had been displaced. According to plaintiff, the Board targeted her, infringed on her rights as a unit owner, and acted offensively and aggressively towards her. Plaintiff specifically cites the behavior of defendant Gail Wind, who left her a voice-mail message in 2013 calling her a "cunt" and sent her emails in 2012 and 2013 calling her "ungrateful," "self-centered," "classless," "miserable," and "a nasty POS."

In September 2016, the Federal Emergency Management Agency offered the Association approximately $41,000 to be used to repair the remaining damages from Hurricane Sandy. The Association voted to give those funds directly to plaintiff so that she could use them to complete the repairs to her unit. Plaintiff declined to accept those funds. In March 2017, the remediation and repair of damages in Unit A1 were completed, leaving plaintiff's unit as the only unit still needing repair from the damage caused by Hurricane Sandy. According to plaintiff, the repairs to her unit are still "unfinished" and she "remain[s] out of" her unit.

On April 9, 2018, plaintiff filed a complaint against the Association, the Board defendants, and other individuals she identified as current unit owners whose "rights as such may be affected."^[1] Plaintiff asserted the following causes of action against defendants: breach of contract, based on an alleged failure to perform "a duty" under the Condominium's master deed and the Association's bylaws "to make timely, necessary and appropriate remediation and repairs to her [unit] and the common areas"; breach of fiduciary duty, specifically a duty "to act reasonably and in good faith, as well as to refrain from engaging in selfdealing, fraudulent conduct, or unconscionable behavior"; conspiracy, asserting defendants "acted in concert to commit unlawful acts against [p]laintiff . . . in an effort to keep [her] displaced from her [u]nit . . . for as long as possible"; and negligence, based on defendant Shum's alleged "dispos[al] of building materials through his unit's plumbing system" and defendants' alleged failures "to properly investigate and vet the contractors which were hired to conduct repairs and remediation, ""to properly manage the repair and remediation process," and "to properly ensure that the condominium structure was properly secured with emergency repairs." Plaintiff also sought the appointment of a receiver and an accounting.

After multiple adjournments of the discovery end date and after an approximate three-month period following plaintiff's voluntary dismissal of the case without prejudice, defendants moved for summary judgment on January 22, 2021. In opposition to the motion, plaintiff submitted her and her attorney's certifications. In reply, defendants submitted, among other things, the certification of Gail Wind, who testified that "[t]he common elements to the Atlantis Condominium, including areas around [plaintiff's] unit, were fully restored following Hurricane Sandy" and "[a]ll of the common elements were repaired by July of 2013."

The motion judge heard argument and, on March 30, 2021, issued an order with an attached statement of reasons granting defendants' motion.^[2] The judge found the master deed was "clear and unambiguous that unit owners are responsible for all maintenance, repairs and replacements within their units and the cost and expenses of same." He held defendants had demonstrated that no genuine issue of material fact existed to defeat summary judgment and that a rational factfinder could not find in plaintiff's favor on any of the counts in the complaint given the lack of competent evidence supporting her claims.

On appeal, plaintiff argues the motion judge erred in granting the summary-judgment motion because the additional facts she submitted in opposition to the motion required a denial of the motion, the record was "insufficient" to support summary judgment, and genuine issues of material fact existed as to her breach-of-contract, breach-of-fiduciary duty, and negligence claims.^[3] Perceiving no genuine issue of material fact or misapplication of the law, we affirm.

II.

We review a trial court's summary-judgment decision de novo, applying the same standard used by trial courts. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). Under that standard, we "must 'consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Meade v. Township of Livingston, 249 N.J. 310, 327 (2021) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "Summary judgment should be granted . . . 'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

"The court's function is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Rios v Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540). "A dispute of material fact is 'genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion,...