Opinion
DOCKET NO. A-2047-10T2
07-13-2012
STATE OF NEW JERSEY, BUREAU OF HOUSING INSPECTION, Plaintiff-Respondent, v. EDWARD J. GIERMANSKI, Defendant-Appellant.
Gary D. Gordon argued the cause for appellant (Feinstein, Raiss, Kelin & Booker L.L.C., attorneys; Mr. Gordon, on the brief). Andrew J. Walko, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Barbara Berreski, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. DJ-270451-2009.
Gary D. Gordon argued the cause for appellant (Feinstein, Raiss, Kelin & Booker L.L.C., attorneys; Mr. Gordon, on the brief).
Andrew J. Walko, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Barbara Berreski, on the brief). PER CURIAM
Defendant Edward J. Giermanski appeals from the November 19, 2010 Law Division order denying his Rule 4:50-1 motion to vacate a docketed judgment for $18,625 in civil administrative penalties and fees as the result of violations found during inspections of his property. Having considered defendant's contentions in light of the applicable law, we affirm.
I.
We discern the following facts from the record. From 1996 to 2005, defendant owned a thirty-unit apartment building in Paterson. On August 23, 1995, plaintiff, the Bureau of Housing Inspection (the Bureau), conducted a cyclical inspection of defendant's property that disclosed numerous violations of the Hotel and Multiple Dwelling Law (Law), N.J.S.A. 55:13A-1 to -28, which were set forth in an inspection report issued on March 25, 1999. The Bureau ordered defendant to abate the violations by May 25, 1999.
The Bureau conducted a reinspection of the premises on August 13, 1999, which revealed that plaintiff had not fixed the original violations. Consequently, on October 4, 1999, the Bureau issued a Notice of Statutory Violation and Order to Pay Penalty (Penalty Notice) in the amount of $3,875. The Penalty Notice, which defendant acknowledged receiving, also notified defendant that, within fifteen days of receipt of the Notice, he could request a hearing at the Office of Administrative Law (OAL) to contest the penalties. Further, the Penalty Notice stated in bold print, "The penalty hereby assessed is in addition to, not in lieu of, all penalties previously assessed."
On March 28, 2000, the Bureau conducted its second reinspection, which revealed that defendant still had not fixed all of the original violations. As a result, on October 20, 2000, the Bureau issued a re-inspection fee of $560, and on October 27, 2000, it issued a Penalty Notice for $14,500 for continuing violations. This Penalty Notice, which defendant also acknowledged receiving, contained language identical to the previous Penalty Notice about the right to request a hearing at the OAL.
On August 31, 2000, the Bureau conducted its third reinspection, and three months later issued a certification, known as a "green card," which provided that the building was currently in compliance with the Law. In January 2001, the Bureau issued another order to defendant to pay the unpaid $560 inspection fee and to pay a $280 penalty for failing to timely pay the inspection fee.
Defendant failed to pay the assessed administrative penalties and fees resulting from the cyclical inspection period that ended March 2000. On July 13, 2001 and again on July 28, 2009, the Bureau served defendant with notice that, pursuant to N.J.S.A. 55:13A-19, the Bureau would file for a docketed judgment. On November 7, 2009, the Bureau sent to the Clerk of the Superior Court a request to file the administrative penalty order for $18,625 plus interest as a docketed judgment against defendant. Shortly thereafter, defendant received notice that the judgment had been docketed but did not challenge the docketing at that time.
The record provides no explanation why the amount is less than the total of the penalties and fees assessed for this inspection cycle.
Separate from the above cyclical inspections of defendant's building, the Bureau had also conducted an addendum inspection, which generally occurs in response to complaints of tenants or local law enforcement authorities, or when new violations are discovered during re-inspection. The Bureau, after imposing penalties in the amount of $20,500 as a result of newly discovered violations, brought a Law Division action to enforce the Law and for penalties. At the court hearing on the addendum violations on September 17, 1999, the parties reached a settlement, and the Bureau voluntarily dismissed the civil action with prejudice.
The record does not contain the Penalty Notice or the court papers.
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In October 2010, defendant, after his tax refund was intercepted, filed a Rule 4:50-1 motion to vacate the docketed judgment. At the motion hearing, defendant argued that he had settled all outstanding violations in September 1999, and the Bureau's issuance of the "green card" showed that he was in full compliance two years later. He further argued that the penalties were barred by the statute of limitations and the equitable doctrines of waiver, laches or estoppel. The State submitted that the settlement had been for the addendum inspection, and could not logically have been applied to the administrative penalties covered by the docketed judgment because they had been imposed after the settlement date. The State also contended that the ten-year statute, not a two-year statute, applied.
Judge Innes found that because the penalties were assessed after the September 17, 1999 court date, the settlement did not include the penalties addressed in the docketed judgment at issue. He concluded that the Bureau's judgment was not barred by the statute of limitations or waiver, estoppel or laches, because the State brought the action within the requisite ten-year time period. Moreover, he observed that the docketing of the judgment was a mere ministerial act in which defendant's substantive claims could not have been raised. He found that defendant failed to seek a timely appeal of any of the Penalty Notices through the OAL where he could have raised the 1999 settlement agreement. Under these circumstances, Judge Innes determined that defendant had presented no reason to overturn the docketed judgment and denied defendant's Rule 4:50-1 motion. This appeal followed.
On appeal, defendant raises the following contentions for our consideration.
POINT I: THE APPLICABLE STATUTE OF LIMITATIONS BARRED THE ENTRY OF THE JUDGMENT BY THE [DEPARTMENT OF COMMUNITY AFFAIRS].
POINT II: THE EQUITABLE DOCTRINES OF WAIVER, ESTOPPEL AND LACHES APPLY TO BAR THE [DEPARTMENT OF COMMUNITY AFFAIRS'S] JUDGMENT.
POINT III: THE ENTIRE CONTROVERSY DOCTRINE BARRED THE [DEPARTMENT OF COMMUNITY AFFAIRS] FROM SEEKING JUDGMENT.
Under Rule 4:50-1, a court may, "upon such terms as are just," relieve a party from an order for a number of reasons including "mistake, inadvertence, surprise, or excusable neglect" as well as "any other reason justifying relief." R. 4:50-1(a) and (f). Motions for relief from judgments are to be decided at the sound discretion of the trial judge. Morristown Housing Auth. v. Little, 135 N.J. 274, 283 (1994). In deciding such applications, the trial court should be guided by equitable principles. Ibid. We do not disturb the result unless there has been a clear abuse of discretion. Ibid.
The purpose of the Law is to protect the health and welfare of New Jersey residents by ensuring decent, standard and safe dwelling space. N.J.S.A. 55:13A-2. Penalties for violations of the Law may be assessed against a property owner. N.J.S.A. 55:13A-19(b). The time within which a person aggrieved by an administrative penalty may request a hearing under the Act is set at fifteen days. N.J.S.A. 55:13A-18. See also Community Affairs Dep't v. Wertheimer, 177 N.J. Super. 595, 599 (App. Div. 1980). If the person against whom a penalty has been assessed does not request a timely hearing, the penalties become final, and appellate review is to this court. R. 2:2-3(a)(2). Under the Penalty Enforcement Law of 1999, if civil administrative penalties become final after the opportunity for a hearing has been afforded, an administrative agency may request the Clerk of the Superior Court to record the final order assessing the penalty on the judgment docket of the court. N.J.S.A. 2A:58-10a; see also R. 4:70-1(b).
Defendant argues that the docketing of the judgment was barred by the two-year statute of limitations in N.J.S.A. 2A:14-10, which he asserts began to run on November 27, 2001, when defendant received the "green card" acknowledging that the building was not in violation of the Law. The Bureau contends that the docketing was controlled by the ten-year statute of limitations in N.J.S.A. 2A:14-1.2, applicable to most civil actions brought by the State.
N.J.S.A. 2A:14-1.2 applies to actions brought by the State unless it is "expressly and specifically" clear that another limitations period applies. Dep't of Envtl Prot., v. Larchmont Farms, Inc., 266 N.J. Super. 16, 34 (App. Div. 1993), certif. denied, 135 N.J. 302 (1994). N.J.S.A. 2A:14-10 covers "[a]ll actions at law brought for any forfeiture upon any penal statute[.]" We are satisfied that neither the Penalty Notice nor the docketing of the administrative penalty order constituted a forfeiture proceeding, which is a civil in rem action, instituted not against the owner of the property, but against the property itself. Ibid.; State v. 1979 Pontiac Trans Am, 98 N.J. 474, 480 (1985). Here, the penalties are against the owner of the property for violations of the Law, and the request for the docketing of the judgment took place less than ten years after the violations were deemed to have ceased. See N.J.S.A. 55:13A-19. Moreover, we note that N.J.S.A. 2A:58-10, which provides for docketing of a civil administrative judgment upon the request of the agency, contains no time limitation. Thus, we reject defendant's claim that the docketing of the administrative civil penalties assessed here was time-barred.
Defendant's arguments concerning the entire controversy doctrine, laches, waiver and estoppel are without merit sufficient to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
We agree with the trial judge that defendant had the opportunity to challenge the penalties that he claimed were for violations covered by the 1999 settlement by requesting a hearing at the OAL, as the Penalty Notices provided. After he failed to do so, the penalties became due and owing. When defendant sold the property after failing to challenge the administrative penalties, he did so with notice that fines and penalties of $18,625 were owed to the State. Hence, defendant's contention that, because the State did not docket the orders for eight years after the violation ceased and four years after he had sold the property, he was unjustly prejudiced by the docketed judgment is unpersuasive. As a result, we find no abuse of discretion in Judge Innes's denial of defendant's Rule 4:50-1 motion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION