JEH Capital Holding, LLC v. 556 N. Main St. Liab. Co.

• Decision Date: 16 November 2021
• Docket Number: A-1114-20
• Parties: JEH CAPITAL HOLDING, LLC, Plaintiff-Appellant, v. 556 NORTH MAIN STREET LIMITED LIABILITY COMPANY, Defendant, and CANNONBALL STEWARTSVILLE, LLC, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

JEH CAPITAL HOLDING, LLC, Plaintiff-Appellant, v. 556 NORTH MAIN STREET LIMITED LIABILITY COMPANY, Defendant, and CANNONBALL STEWARTSVILLE, LLC, Defendant-Respondent.

No. A-1114-20

Superior Court of New Jersey, Appellate Division

November 16, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2021

On appeal from the Superior Court of New Jersey, Chancery Division, Warren County, Docket No. C-016005-19.

Gross McGinley, LLP, attorneys for appellant (Loren L. Speziale and Adrian K. Cousens, of counsel and on the briefs).

Florio Perrucci Steinhardt Cappelli Tipton &Taylor, LLC attorneys for respondent (Donald E. Souders, Jr., and Ruby Khallouf, of counsel and on the brief).

Before Judges Messano and Accurso.

PER CURIAM

In 1983, the owners of Block 23, Lot 28 on the tax map of Greenwich Township, subdivided the parcel into Lots 28 and 28.01. Plaintiff, JEH Capital Holdings, LLC, the owner of Lot 28 since 2002, filed a quiet title action against defendants 556 North Main Street, LLC (North Main), the owner of Lot 28.01, and Cannonball Stewartsville, LLC (defendant), who, at the time, was the contract purchaser of Lot 28.01.^[1] Plaintiff claimed it held a prescriptive easement (the access easement) over defendant's property to access a parking pad at the rear of Lot 28, as well as an easement to park one vehicle in the northwest corner of Lot 28.01 (the parking easement).

Defendant moved for summary judgment, which the judge granted in part. She dismissed plaintiff's claim to the access easement finding it failed to demonstrate continuous use of the easement for the requisite thirty-year period.

The order further provided defendant stipulated to "plaintiff's right to utilize" the parking easement without interference.^[2] This appeal followed.

Essentially plaintiff contends the judge misapplied summary judgment standards by failing to accord it the benefit of all favorable evidence and inferences in the motion record. We agree and reverse.

I.

An appellate court reviewing a summary judgment order must "confine [itself] to the original summary judgment record." Lombardi v. Masso, 207 N.J. 517, 542 (2011). In support of its motion, defendant supplied the certification of James L. Pfeiffer, Jr., whose family purchased Lot 28.01 in November 1987. According to Pfeiffer, he submitted a proposed site plan to the local planning board prior to the purchase; there was no indication of parking spaces or a gravel parking area at the rear of Lot 28. Pfeiffer stated that the rear of Lot 28 was not used for parking from 1987 until 1993, when Bernadette Izzo-Yasinowsky purchased the property. According to Pfeiffer, it was Izzo-Yasinowsky who first allowed her tenants to use the rear area for parking and placed gravel there to facilitate their use of the space.

Pfeiffer said his family objected to the use of their property, Lot 28.01, by others to access the parking area at the rear of Lot 28. He claimed there were "numerous personal confrontations," leading the Pfeiffer family to park "a vehicle so as to block access to the rear yard of Lot 28 for parking." Pfeiffer said access to the rear of Lot 28 was "blocked until [the Pfeiffer family] sold Lot 28.01 on December 27, 2004." In addition, Pfeiffer said that after Izzo-Yasinowsky sold Lot 28 in 2000, neither her successor-in-interest nor plaintiff ever "asserted a right of access across Lot 28.01 to the rear of Lot 28."

In 1997, Izzo-Yasinowsky successfully obtained the local planning board's approval for variances to use 500 square feet of the existing building on Lot 28 for an antique and furniture shop. Notably, the board recognized only the deeded single parking space on Lot 28.01 in considering the request for a variance from the zoning regulations' off-street parking requirement. The board's resolution, however, included the following:

Mr. Pfeiffer[, Jr.] advised that while his father does not object to the applicant's commercial use of the structure, his primary concern centers upon the absence of sufficient off-street parking relative to the applicant's customers or tenants utilizing his property for that purpose to which he objects.

[(emphasis added).]

Plaintiff's opposition included a certification from Derek A. Storm, a partner in Montauk Holdings (Montauk), which purchased Lot 28 in 1987 from the couple who retained ownership of Lot 28 after the subdivision. Montauk sold the property to Izzo-Yasinowsky in 1993. According to Storm, during Montauk's ownership, he and his residential tenants used a "parking pad" at the rear of the structure on Lot 28 only accessible "by driving onto and over Lot 28.01." Storm claimed, "[a]t no time . . . did anyone object to . . . vehicles accessing the parking pad on Lot 28 by driving onto and over Lot 28.01." Storm said the Pfeiffer family owned Lot 28.01 during all of Montauk's ownership of Lot 28 and never "object[ed] to or block[ed] . . . use of the parking pad or access onto and over Lot 28.01."

Plaintiff supplied a second certification from Timothy Daley, a member of TMK Holdings, LLC (TMK), which purchased Lot 28 from Izzo-Yasinowsky in 2000 and sold it to plaintiff in 2002. Daley also certified that in order to access the deeded parking space on Lot 28.01, TMK's residential tenants drove "onto and over" the paved areas of Lot 28.01. Daley said that at no time during the company's ownership of Lot 28 did anyone object to tenants accessing the parking pad behind the building by driving onto and over Lot 28.01. Furthermore, Daley claimed that he interacted personally with the owners of Lot 28.01, presumably, the Pfeiffers, and they never blocked or objected to accessing the parking pad over their lot.

Plaintiff's principal, Robert Haver, also filed a certification, stating that it obtained the property in 2002, the residents of Lot 28's building used the parking pad at the rear of the building and accessed the pad by driving over Lot 28.01. According to Haver, no one had ever blocked access or objected to him or his tenants accessing the parking pad by driving on and over Lot 28.01.

Defendant filed a reply that included a new certification from James Pfeiffer, Sr. He said that Izzo-Yasinowsky "instruct[ed] and/or allow[ed] her tenants to park in the rear yard of Lot 28," implying it had never happened before. The senior Pfeiffer certified that he objected, parked a car on Lot 28.01 to block access, and "installed a chicken wire fence on Lot 28.01 across the entrance to the parking pad to impede access ...." Pfeiffer noted that Izzo-Yasinowsky sold Lot 28 in 2000, and he and his family sold Lot 28.01 in 2004; the certification was silent regarding access to the parking pad during those four years.

The judge considered oral arguments. Defendant contended that plaintiff had no express easement except for the single parking spot reserved by deed, and plaintiff failed to satisfy the legal requirements for a prescriptive access easement. Defendant also argued that plaintiff could not utilize a parking pad at the rear of Lot 28's structure because it was over an active septic system and prohibited by regulation and local zoning ordinances. The judge reserved her decision. In the written statement of reasons supporting the order, the judge carefully reviewed the statements of material facts both parties submitted and the arguments each made in support of, and opposition to, the motion.

She concluded that "the express easement" to the single parking spot in the northwest corner of Lot 28.01 granted by deed was "silent on the matter of whether [plaintiff] or its predecessors in title may access the parking pad over Lot 28.01." The judge also rejected defendant's argument regarding the legality of the parking pad's placement over a septic system.

The judge squarely addressed the elements of plaintiff's claim to a prescriptive easement over Lot 28.01 to access the parking pad. She noted that "[t]he proponent of an easement by prescription must show an adverse use of land that is exclusive, continuous, uninterrupted, visible, open, and notorious." (citing Mannillo v. Gorski, 54 N.J. 378, 386-87 (1969)). The judge concluded that plaintiff had produced sufficient evidence to demonstrate exclusivity of its adverse use of a portion of Lot 28.01, and that its use was open and notorious.

However, the judge reasoned "[t]he primary question . . . [was] whether [plaintiff] has presented enough evidence to establish a genuine dispute of fact over the continuous use for the thirty-year statutory period." See Yellen v. Kassin, 416 N.J.Super. 113, 119-20 (App. Div. 2010) ("In order to establish an easement by prescription, a litigant must prove elements similar to those associated with adverse possession." (citing Mahony v. Danis, 95 N.J. 50, 58 (1983) (Schreiber, J. dissenting)); N.J.S.A. 2A:14-30 (providing thirty years' possession to establish adverse possession of any real estate). The judge cited the three certifications plaintiff furnished in opposition, establishing that Montauk, TMK and plaintiff used the parking pad and accessed it over Lot 28.01 from 1987 to1993, and again from 2000 to the 2019 filing of the complaint. She noted plaintiff's allegation that Izzo-Yasinowsky and her tenants used the parking pad during her ownership, i.e., the years between Montauk's and TMK's ownership of Lot 28.

The judge then referenced Pfeiffer Jr.'s certification, which contradicted Storm's certification about Montauk's use of a parking pad and claimed that Izzo-Yasinowsky first began using the pad in 1993. The judge concluded, "there is a genuine issue of fact over when the parking pad was first used and whether Montauk used it ...." The judge also noted the Pfeiffers' certifications stating ...