A Case(s) for Elections & Reform

1/14/23 update:

Defendant was sued for replevin (recovery of) & conversion of a vintage non-drivable vehicle in process of being restored. Defendant counterclaimed for storage fees as billed or under quantum meriut (as much as is deserved) The owner of the vehicle orally agreed to pay Defendant the storage fees upon Defendant’s purchase of his building where this and other cars had been worked on and stored. (He had access and had removed the other vehicles prior to the closing). Instead, Defendant was made to pay $5000 damages for storing someone else’s car for three years in his commercial building though they would neither remove it or pay storage fees after twice having received certified notice that a lien would be placed for failure thereof. Plaintiff warned Defendant not to move the vehicle outside or to the curb or it would be considered conversion. The judge (who sweet talked Defendant out of a jury trial) called the notices “mere letters”, not an agreement, though Plaintiff implied his assent by not claiming or removing the vehicle. This outrageous decision by Judge Michelletti contradicted his own findings that the owner had no right to expect to leave the car for free, had failed to make demand until 9 months thereafter and suffered no loss of use or sale. This judge, after considering such for over two months, would not determine who caused the problem and therefore who should be at fault. The decision was of course, affirmed on appeal. The courts would not apply the same laws to Plaintiff as to others and the courts clearly engaged in purposeful discrimination and were given the green light by Chief Justice Deborah Poritz and the NJ Supreme Court as evidenced by its denial of Plaintiff’s petitions for Certification.

The courts protected and colluded with the City of Long Branch and its Sewerage Authority (LBSA) and certain of its officials and attorneys and denied Plaintiff standing to enforce his property rights, due process and a jury trial. Supposedly good judges, all from the Long Branch vicinity, conspicuously acted otherwise and at least two judges may have had conflicts with defendants or their attorneys.. The matter was affirmed on Appeal. Subsequently, and so to obviously try and harass Plaintiff out of vindicating his property rights against Long Branch,, another supposedly good judge with 15 years experience, Robert O’Hagan on 10/10/03 suddenly cannot distinguish between costs and legal fees, ignores a consent agreement between the parties and court which previously disposed of all remaining issues (including costs), and amazingly seeks to use a 1938 case which predates the governing costs statutes so to improperly take jurisdiction and adjudge over $3k costs for the appellate and supreme court divisions. It is obvious that the court and defendant had never gone down this road before and that the court must feel it has cover to do this. The parties settled in lieu of another appeal. See “Long Branch Mayor……” on homepage for further details.

This section provides one well documented example of the of denial of meaningful court access and property rights typical throughout our US court system as perpetuated/ left un-remedied by the US Supreme Court which hears only 80 cases a year. This, despite proclamations by our Presidents and others to the world how the personal rights of each individual are protected by our Constitution and how we are a nation governed by the rule of law. In fact, our rights are spoon fed to us by the courts and it is difficult, expensive, and rare to have them vindicated. This points out the need for a strong, independent (of political parties), State court system with accountability for judges who knowingly refuse to enforce the laws. The first link displays an actual petition before the US Supreme Court which was denied the first day of the fall 2005 session without comment or recorded vote and without the participation of new chief justice John Roberts. This followed an unsuccessful federal action (Docket CV00-2567) and appeal primarily denied on the basis of the Rooker-Feldman doctrine – that federal courts have no jurisdiction over matters already adjudicated by state courts. Plaintiff argued as there was denial of meaningful access/applications of laws in the State courts, the matter should not be considered adjudicated. The lower and appellate Federal courts also refused to find jurisdiction and hear the merits instead upholding NJ’s arguments of total sovereign immunity, though they know this does not apply to equitable and injunctive relief in constitutional matters, as evidenced by federal intervention in racial profiling at the time

US Supreme Court Petition

On 11/20/00 Plaintiff filed notice with the State that he intends to sue for these failures to obtain due process in its courts in violation of his constitutional rights, not in error. The court (Docket MER-L-2798-02) refused to adjudicate the merits finding the 2 year statute of limitations was exceeded based on a strict application of the discovery rule. The second link shows a petition to the NJ Supreme Court which was similarly denied without comment or recorded vote.

NJ Supreme Court

In a matter involving construction of an office addition, the original general contractor is given some storage space as part of the construction contract. He commits numerous breaches including demanding payments upfront prior to work being completed (an initial deposit was paid) and in excess of the contract amount. The owner finally had to terminate the contract and gave him 30 days to remove his equipment.

Contractor was also subsequently told that if he failed to remove the equipment it would be considered abandoned pursuant to Statute. Contractor refused to do so and a few months later demanded the equipment and called police. He brought suit on April 17, 2008 and the matter is assigned to the presiding civil judge, Jamie S. Perri, PJSC who falls all over herself to take jurisdiction and try to render summary judgment though the contract, which Plaintiff drafted, has provision for arbitration. Owner, Defendant sought dismissal on that basis by motion for lack of jurisdiction. Contractor insists the court hear the matter and claims the arbitration language is vague and unenforceable and not part of the contract. (they know that if they authored it then it is their fault it is vague and their problem for the consequences – this is pursuant to well established caselaw and doctrine.) Though the court finds, that the arbitration language is part of the contract, coincidentally, the court refuses to render a finding as to who drafted the complaint for purposes of deciding the motion (a jury ultimately decides issues of fact as to any judgment). This was dirty. None of the cases submitted by Plaintiff or the Court have the drafter seeking to attack and avoid his own arbitration provision. The judge, Jamie S. Perri, nevertheless thereafter agrees with the contractor and takes jurisdiction and orders the complaint be answered within 10 days and schedules summary judgment so she can decide it without a jury or any discovery. Her comment “so please don’t send me a stream of consciousness response, because it won’t be in compliance with the rules” was unwarranted and Defendant felt as if he were being set up for a lynching. Defendant files an original and copy of a motion for reconsideration on 4/29/08 which tolls the time to answer. Plaintiff issues a warning under the frivolous statute to remove the pleading within 28 days or sanctions will be sought. The clerk loses the original and returns the copy as “unfiled” and requests a new original which she files with a return date that now coincides with the 28th day thus leaving Defendant open to possible sanctions and dismissal of the motion. Motion denied. Defendant wrote to AOC about the theft/loss of the original, which is a crime, and who may be behind it and procedural creativity of the clerk in moving the filing date of the motion for reconsideration. Defendant got no reply.

Leave to appeal the decisions was filed 10/20/08. Not surprisingly, the appeal is denied for hearing by the Appellate Div. Thereafter, being forced to answer the complaint or be subject to default judgment, owner instituted 3 counterclaims for breach, fraud, and abandonment of the equipment and sought receipts and other discovery on contractor’s claimed items, of which he inflated the value. Contractor would not answer the counterclaim and his attorney sought and was relieved from the matter. Owner filed default and made a motion for partial summary judgment to withdraw the breach and fraud claims and find only that abandonment had occurred, in order to clear his name. Under summary judgment, if the alleged facts are not in dispute, then it is to be granted as a matter of law by the judge without a jury. The judge, despite 3 months passing, creates her own proposed Order which ignores the main relief of abandonment being sought under guise that she did not receive a proposed Order from Defendant and that this was also the reason for the delay. Defendant mailed the clerk the proposed Order the same day as filing of the motion and the court certainly could have asked Defendant to fax one over. So this is very dirty indeed. (judge’s trick #202 – they have a million of them) A motion for reconsideration pointing out these “errors” in fact was filed Sept. 8, 2009 to be decided on Sept. 25. and Defendant certified that a proposed Order was directly mailed to the court on the same day as filing of the motion and that the law clerk never mentioned the proposed Order being missing or asked for a proposed Order. The judge was transferred/demoted Sept. 1 from civil presiding judge to regular criminal judge, and took the civil matter with her, was handling it personally, and even her new law clerk was not aware of it (boy – would he get an education!). As of December 23, 2009 the motion still not been decided and was withdrawn which Defendant, who wanted to clear his name, now regrets.

The court’s advocacy for the contractor, by its failure or refusal to apply established case law, and attempted lynching of the owner/defendant is evident. FairtrialNJ believes this was politically influenced. Irregularities in filing including loss of original documents which put owner in jeopardy adds to this. The busy judge found time to insert herself into matters involving arbitration and found creative ways to deny simple equitable/affirmative relief to Defendant. This is a perfect example of why direct citizen action is needed to remove judges who purposefully delay or refuse to apply the laws. Coincidentally, Judge Perri is assigned, by new civil presiding, nj supreme court nominee, judge Bauman, to decide important opposing summary judgment motions on Oct. 6, 2014 in a current matter against Long Branch, L-4039-11, though he initially presided thru most of the discovery stage. ( in a fair manner) She is also assigned for the trial. Naturally, considering the above and additional acts in L-4039-11 at the end of and post discovery, Plaintiff has genuine concern as to whether she will be advocating for dear old Long Branch and find ways to let them out. She did.

Thereafter a second contractor took a $5,000 deposit claiming knowledge/experience in exterior steel construction, however after showing up without the right tools and then spending 2 days experimenting, . he quits and keeps the deposit. Plaintiff 1st tried the prosecutor, who declined maintaining that since some work was done, this cannot be theft, despite caselaw showing that receipt of the deposit itself under false pretenses is enough to convict. Next Plaintiff tried the consumer fraud unit of Middlesex county whose attorney wrongly did not consider plaintiff a consumer as a commercial property is involved His boss was the Freeholder, now a judge whose firm, thereafter represented the defendant in Long Branch Municipal court where Plaintiff sought theft by deception. They recused when Plaintiff mentioned he was writing to the AG about it. The municipal court (conflicts judge) would not hear the matter, instead finding that defendant was puffing or exaggerating and this was not criminal – though defendant had absolutely no experience or basis to make the false representations. The judge said to use the consumer fraud act though it was pointed out to the court that the division of consumer affairs previously passed on this and did not consider plaintiff a consumer as a commercial property is involved. No problems in special civil getting a default judgment – only in getting the court officer to serve a warrant. The warrant said to use police assistance but the court officer refused to do so despite Defendant coming to the door and identifying himself! The officer earlier lied that he didn’t receive some documents though the court clerk says it was in his box at the court. Pathetic and all ok with AOC who was informed of this.

Following attempts to resolve the matters thru the mayor, council and administrative officials, (see Long Branch Mayor, etc. – homepage) on April 30, 2010, a prerogative writ complaint was filed against Long Branch, and a temporary injunction (TRO) was sought to: 1) void the unlawful zoning permit issued Aug. 3, 2009 to E& L Paving and Atlantic Paving which grandfathers and expands a use which was never approved; 2) review, correct and enforce a notice of violation issued Jan. 27, 2010 to Atlantic Paving to remove all companies from the subject lots who do not appear on the illegal zoning permit; 3) recognize and enforce the no parking zones established on Plaintiff’s site plan approved Sept. 16, 2003 so to help insure access to his property, considering that these same unlawful tenants of E&L are purposefully restricting access since Aug. 2009  See amended complaint (the original complaint named only Long Branch) The matter was heard by hon. Patricia Del Bueno Cleary, who is now the presiding judge of Chancery.

MON L-2153.10

Long Branch, knowing that no prior approvals exist, only previous violations and summonses, instead sought to “discharge” the TRO on procedural grounds and have the private defendants joined in to obfuscate their own culpability. Dismissal wasn’t yet sought.

Long Branch maintained: no irreparable harm existed; no immediate need for relief; no reasonable probability of eventual success by Plaintiff due to failing to name the private parties in the lawsuit, failing to first go to the zoning board for review and exhaust his administrative remedies; that Plaintiff, nevertheless, is out of time to bring the actions, that issuance of zoning permits and notice of violations are acts of discretion, not ministerial duties subject to prerogative writ action, and the relative hardship to Plaintiff in granting the TRO would somehow be less than that of Long Branch if it was granted

Plaintiff pointed out and presented photos showing how the continued illegal use and failure to abate had escalated to arson and other violence including an attempt to run over Plaintiff while taking pbotos. Plaintiff also pointed out the recent increase in restricting access due to blocking the no parking zones and what should be a cul de sac at the end of the dead end street.

The court didn’t give the TRO the time of day and stated simplistically that since the site plan was approved years ago in 2003, this does not warrant immediate relief as to all issues in 2010.  After listening to all of Long Branch’s procedural arguments, the court found that “the complaint stands” and that the private parties should be joined in the matter to give them an opportunity to be heard, though Plaintiff pointed out they have no standing or say in the issuance and enforcement of permits issued by a municipality. The court did not dismiss the matter or find that it was frivolous as alleged by Long Branch which sought sanctions should it not be withdrawn.

2nd Hearing – 2nd Bite at Apple for Long Branch

Private Parties named and served, Complaint otherwise unchanged
Long Branch and Private Parties thereafter sought Dismissal using the Same Arguments as Before

In opposing dismissal, Plaintiff first argues that Defendants are barred under collateral estoppel since the procedural aspect was already decided and Long Branch, who is hung up on procedure, had opportunity at the 1st hearing to seek dismissal, did not do so, and is now therefore barred from now doing so. Why have Plaintiff go thru the time and expense of joining the private parties only to seek dismissal again on the same grounds? Under the futility doctrine, Plaintiff need not engage in futile exercises in seeking his rights. Plaintiff points out that the private parties have no standing or say in the issuance and enforcement of permits issued by a municipality and cannot therefore seek dismissal of the prerogative writ complaint directed at Long Branch.

Plaintiff next argues and provides cases that Defendant Long Branch’s issuing of the permit is ultra vires (unauthorized) and utterly void as it seeks to bypass planning and zoning board approvals by knowingly, in bad faith issuing a zoning permit to grandfather a use which its own files show lacked previous subdivision, site plan and use variance approvals. Since it is simply a question of law whether the law has been followed or not, the matter is directly reviewable by a court without need to exhaust remedies (appeal to the zoning board).. Plaintiff also shows how appealing these matters to a corrupt zoning board with a special interest in E&L to seek an impartial determination, would be another exercise in futility. Evidence was provided showing that the zoning board chairperson and attorney having recused themselves previously in E&L’s matters, which E&L failed to prosecute, thereafter grant bulk variances to E&L in someone else’s site plan application though the E&L lots have nothing to do with that other site plan. Minutes and original transcribed records are missing which would show their recusals and involvement in subsequent applications involving E&L. The public notice was deceptive and disguised the fact some of the lots being considered are owned by E&L. (See “Appeal Record” and “Deceptive Notice” under Appeal A-000999-10T4 below )

Plaintiff further demonstrates the public interest in the matter, that a whole neighborhood is affected, a petition was filed, and that citizens of Long Branch have a right to assume the government is acting free of corruption and is enforcing its Ordinances. Based upon this, exhaustion of remedies may be dispensed with under the Rule. Plaintiff also shows that he has, nevertheless exhausted his administrative remedies by immediately going to the mayor, council and administrative officials and receiving a determination from the city attorney that the permit stands. Plaintiff thereafter timely filed this prerogative writ action.

Plaintiff then argues that enforcement of even discretionary acts must not be “palpably unreasonable” such as 6 months without the notice of violation being abated or the arson seriously investigated. Defendant Long Branch can be liable for damages for this and constitutional violations and this is an exception under the Tort Claims Act. (See L-4039-11 where this is pursued)

Finally, Plaintiff argues that enforcement of notice of violations and site plan provisions are not the duties of the zoning board of adjustment under the Municipal Land Use Act, so the exhaustion of remedies does not apply to these. Though, by well settled caselaw, Plaintiff may also collaterally attack the permit at any time by suing the private parties and a court can find the permits void therein, irregardless of the action against Long Branch, this is done in L-4039-11. Long Branch issued the dirty permit, not the permitees. Plaintiff gave Long Branch the benefit of additional tort notices which had not accrued and had not yet discovered other ultra vires permits and corruption and will be filing another action for damages anyway, L-4039-11.

Plaintiff files Cross Motion for Summary Judgment on All Issues

As previously stated, in order to determine whether a question of law exists, which is to be heard by a judge, rather than the zoning board, the court must first determine whether the action may be ultra vires (unauthorized) or not. Plaintiff gives the court the mechanism to determine this by filing a cross motion for summary judgment and therein shows proof that, under the Ordinances then in effect, permits were required when E&L began acquiring and using the various properties and that no prior permits were ever obtained. The dirty, noisy, unsightly use was not permitted then in any zone and it is not permitted under current Ordinances which is why citations were issued thru the years. Therefore there can be no grandfathering of the unilaterally created, non permitted use. The lots are to be vacated within 30 days under Long Branch Ordinance and to remain so until full and proper site plan approvals are obtained for a beneficial or non-detrimental use. The no parking zones on the site plan are a matter of contract and will attempt to be enforced.

Long Branch and its attorney, James Aaron, know all this yet seek to wow the court with smoke and mirror procedural arguments to avoid/hide this simple fact. Long Branch citizens are paying for another perfectly avoidable lawsuit after having spent million over the years on other such unnecessary litigation, which runs contrary to the strong public policy to avoid litigation. Long Branch citizens should look into recovering some of this based on fraud or at least see that the city council put an end to this practice. However the local newspapers which take their legal ads make sure the public is unaware of any corrupt practices of their benefactor.

DECISION: The court refuses to address the merits and dismisses the entire complaint with prejudice using Long Branch’s arguments on procedure (laches). A motion for reconsideration is denied.

Appeal: A-000999-10T4 – No Semblance of Justice

Plaintiff/Appellant repeats the arguments for the 3 Counts and includes documents as to the unilaterally created and expanded non-permitted use and corruption of the zoning board in his appendix.

First count. Void Permit: The court is obsessed with the procedural arguments and fails to address Appellant’s merits, ignoring the zoning board corruption and the unilaterally created and expanded use without site plan approval.

Instead the court wants Plaintiff to exhaust his remedies and crawl back to a zoning board whose corruption is documented (Complaint 183a-184a; 205-206a;Cert.-Order to show cause, 189-193a; 153a; 89-91a; 154-159a in “Appeal  Record Excerpts”, following) finding “the (zoning) board is particularly well suited to resolve the issues raised by plaintiff” and it would not be futile,- ‘we decline to accept defendant’s argument, implicit and unsupported by any facts, that the board would not reverse an ultra vires act of its zoning officer.” (page 15) Plaintiff did not argue, however that zoning boards, in general, are not suited – only that obviously corrupt ones as supported by evidence are not. As stated in the 1st paragraph of “Conclusion” on page 47 “no exhaustion of remedies is required and doing so would nevertheless be futile with the current zoning board” Why have a Rule 4:69-5 which provides ultra vires acts, legal questions and efforts in futility are exceptions to exhaustion of remedies?

It affirms the dismissal with prejudice but goes beyond this. Though finding the permit issue should have first been appealed to the zoning board, it nevertheless feels compelled to offer gratuitous dictum  https://thelawdictionary.org/dictum/  that “the zoning permit purports to reflect the zoning officer’s conclusion that the use of the properties “for paving company for two buildings, yard and parking area” is permitted by ordinance in the commercial/industrial zone. The zoning officer had the authority to take such action.”  This is no doubt meant to give a “semblance of authorization” per caselaw and thereby obviate a collateral attack on the zoning permit to void the permit as not ultra vires in the primary sense. The court knows that others will construe the dictum improperly as a finding on the merits, which 2 trial judges did in the subsequent damages action. (See Mon L- 4039-11 following)  The notice of violations, and unprosecuted site plans seeking use and other variances for the paving yard mean nothing and are ignored. (2 findings of guilt for expansion of the use were also subsequently discovered in L-4039-11) see homepage under “Judiciary”) The attempt to accord good faith to a zoning officer’s and municipality’s actions thru dictum when the record shows otherwise, and procedural dismissals over merits, encourages municipalities like Long Branch to act corruptly.

However, as will be argued in the upcoming summary judgment for L-4039-11, the zoning permit is still unauthorized due to the unilaterally created non-permitted use and expansion of use without prior site plan approval. There is no “semblance of compliance or authorization in any statute or ordinance” permitting a zoning officer to grant a zoning permit to grandfather a unilaterally created use which was illegal at time of creation, or to expand the use without prior site plan approval. Nothing in the Municipal Land Use Law or Long Branch ordinance or caselaw permits this. The permit is still ultra vires in the primary sense and utterly void for these reasons, which arguments were included in the appeal but not considered by the appellate court. Nevertheless, the subsequent trial court uses the dismissal with prejudice to preclude further attack of the dirty zoning permit.

Second Count, Correct/Enforce Notice of Violation: The appeal of this count is prima facia evidence that the violations continue, otherwise why would Appellant raise it? Nevertheless, the court pretends that the violations no longer exist (P 16) so it can avoid the issue that zoning boards don’t enforce notice of violations which are directly reviewable, and avoid affording any relief to Appellant. “Plaintiff did not allege that the violations for which Atlantic Paving was noticed existed after the Feb. 26, 2010 inspection referenced in the notice. And as the trial court implied, plaintiff had not sought any relief, including injunctive relief (collateral attack) against the non-municipal defendants” while acknowledging “On June 2, 2010, plaintiff filed his amended complaint” which continues to allege the ongoing violation, seeks relief thereto, and is to be read as true. (P 8) This employs Appellate judicial dirty trick # 364 The 2nd paragraph of the Conclusion (pg. 47) requests the “misc. contractors” vacate within 30 days and “the lots are thereafter to remain vacant until proper site plan and sub-division approvals are obtained from the planning board” and evidences that relief is still being sought and the violations continue. (See also the proposed “Order to Show Cause” (194A)) Though collateral attack against the dirty permit is available at any time within the statute of limitations following its discovery, by joining permittees and asserting they possess an illegal permit, the court penalizes Appellant for naming, for notice purposes, but no not joining, the neighbors in this matter. They did not issue the dirty permit and cannot revoke it and they are joined in the subsequent damages action since Plaintiff was damaged by them, and damages had not accrued at the time of the prerogative writ filing.

Third Count, Enforcement of no Parking Zones in Plaintiff’s 9/16/03 Approved Site Plan: Plaintiff’s Order to show cause  reflects this (194a) requested relief. Amazingly, the court affirmed that Plaintiff should have known in 2003 when he obtained his site plan approval that the no parking zones on his approved site plan would not be enforced in 2009 and should have appealed to the planning board for clarification in 2003, and impleaded the planning board in the 2010 prerogative writ matter though no enforcement available from that body, and that dismissal of this with prejudice was now warranted. (page 17) Long Branch asserts an ordinance thru the city council is needed for a no parking zone and the dirty finding forever forecloses that. Judge (“Rotting Carcass”) Carchman of the appeal panel, earlier found in City of Linden v. Benedict Motel Corp. 370 NJ Super. 372, 851 A2d 652 (A. Div. 2004) parking provisions appearing on an approved site plan are valid and enforceable without “any recordation of separate approval” (page 26 of appeal). The Long Branch Planning Board could have struck out the zones on the plan or in its resolution but did not do this. Plaintiff/Appellant invested a lot of money in the office addition expecting access to his property. As such Plaintiff contends this is a contract matter. The opining that Appellant should have appealed to the board for clarification in 2003 and impleaded the zoning board in 2010 is typical/to be expected from this court. Its always, “you should have done this”, “jumped thru these hoops” or “waited for the full moon” in order to get your rights spoon fed to you.

The lack of adjudication of key issues (supra) is due to an obviously unfair appeal. Though the court is unhappy that Plaintiff did not seek specific injunctive relief against the private defendants in that matter, (enforcing the notice of violation would have accomplished the same result), it has no right to conduct an appeal which lacks any semblance of fairness.

Not surprisingly all 3 appeal judges spent most of their career’s working for the government. (See judgepedia.org) “Coincidentally,” Judge Clarkson Fisher, the presiding judge hails from Monmouth county where he served as equity judge and mentored  judge Cleary who dismissed, MON L 2153-10 – the prerogative writ matter. Judge Carchman is a ringer, on recall to do settlements since 2012 and is not even listed as being on the Part F panel which heard the appeal. He was formerly the director of AOC (Administrative Office of the Courts) and no doubt fell over himself for the assignment due in large part to Plaintiff’s criticism of the court during his tenure. They were joined by freshman appeal judge Judge Nugent, a former prosecutor. Not hard to see where their sympathies lie in any action against the government. Any former public defenders or constitutional law or civil rights attorneys or someone not from Monmouth county in the Appeal Div.? See “News and Views & History” as to the need for transparency/fairness in assigning appeals – particularly those challenging the government.

Opinion

Appeal Record.Excerpts

Deceptive Public Notice

Summary (with punitive damages being sought against individual officials): 1st.Count: Continuing private nuisance (preceding illegal zoning permit) -Bruno/E&L, Long Branch & Officials as of 2000. Appraisals done, 2000, 2002, 2006 and 12/2012 showing increasing depreciation. Notice of continuing tort served 9/25/02 based on the 1st two appraisals. 2nd Count: Escalation of/Creation of new nuisance upon issuance of ultra vires zoning and other permits – All defendants as of 8/3/09 when zoning permit issued to attempt to grandfather and expand unilaterally created non-permitted use without prior site plan approvals. The charade at enforcement thru the years is never meant to actually abate the lack of prior site plan approval as required under the NJ municipal land use law. 3rd and 4th Counts: Declaratory relief vs. private defendants to void permits, etc. (the collateral attack) 5th Count: Intentional Infliction of Emotional Distress -private defendants and officials. Post 8/3/09 Post complaint: Defendant Atlantic Paving takes up residence next door to Plaintiff home for a year. 6th Count: Tortious Interference with Economic Advantage and Contractual Relations – all defendants responsible – loss of tenant due to arson, loss of peaceful possession in conducting business, time lost from business. Post 8/3/09 7th Count: Breach of Fiduciary Duty: officials since 2000 – denial of honest service in abating violations. 8th Count: Civil Conspiracy: private & public defendants since 2000 to help private defendants evade zoning/land use laws. 9th Count Civil Rights & Emotional Distress: Long Branch & Officials. 2002 & continuing. 10th Count: Breach of Contract – failure to recognize/enforce no parking zones in approved site plan after Plaintiff invested in costly improvements . Restricted access of 2 driveway entrances to property. Discovered breach post 8/3/09 though site plan approved 9/16/03 for 2 additions. Unlawful occupants intentionally blocking access with their vehicles.

Regardless or not whether the permits were previously found ultra-vires (unauthorized/illegal), they have escalated the nuisance and added to the damages as has the refusal by Long Branch to abate pending site plan approval. Long Branch, continues to provide the legal arguments for the private defendants on the taxpayers dime and seeks to again avoid the merits and have the court decide issues of fact in place of a jury. One such issue is that their acts and omissions since 2000 are not palpably unreasonable, in bad faith. If a jury finds the individual officials have acted in bad faith they lose their “good faith” immunity under the Tort Claims Act and are personally liable. That’s Justice. The City’s insurance company early on refused to cover due to bad faith in failing to abate the nuisance which they helped create in similar manner to failing to enforce zoning violations in the first lawsuit MON L5080-98 in 1998 (see above).

4039.11.Amended Complaint

Long Branch’s 1^st  Summary Judgment to Dismiss Zoning Board Attorney Defeated by pro se:

Long Branch first sought to test the waters and establish the law of the case by seeking summary judgment dismissal only for the zoning board attorney. They employed their typical laches arguments and sought to characterize the alleged continuing conspiracy to evade the laws as distinct events for which Plaintiff failed to provide separate tort notices. Judge David Bauman, then PJCv and Gov. Christie’s nominee for the NJ Supreme Court, on 9/28/12 denied dismissal finding Plaintiff’s 2002 tort notice was sufficient notice of a continuing tort including conspiracy. He also subsequently curtailed a fishing expedition by Long Branch to rifle thru Plaintiff’s medical records going back to the 1998 civil rights matter MON L-5080-98. In that vein, Long Branch took 4 bites of the apple including seeking leave to appeal in order to harass Plaintiff though the 5th count is aimed primarily at the private defendants. The 9th count accounts for much of the emotional distress from municipal defendants including being hunted down on the beach by the police while jogging, and threatened with arrest, under guise of an investigation, if refusing to provide ID (no ID is required in public). This was based on alleged specious complaints for which no dispatch records or complaining witnesses were present or exist and occurred 9 days after filing of this complaint. Unfortunately, judge Bauman turned the pretrial matter and trial over to judge Jamie S. Perri who exhibited a bias against Plaintiff in MON L-1919-08 (see “A case(s) for Elections & Reform”) and failed to adjudicate on Plaintiff’s motion for dismissal after 3 months in that matter. Nevertheless, hon. judge Bauman appears to be a fair, well meaning judge of good demeanor with an open mind who seeks to apply the laws and would be highly electable to any court if elections were available.

Bauman Summary Judgment 9.28.12 Hearing & Decision

Although it was obvious from the previous summary judgment that then pro se Plaintiff was competent in conducting discovery &  taking depositions, Long Branch, knowing the matter is now assigned to their friend judge Perri, nevertheless resorts to filing for a special master to supervise remaining discovery, claiming harassment, etc.  A special master is usually used in Federal court to assist a judge in complicated matters. The motion/x motion  remain unadjudicated for months while the discovery clock ticks.  Eventually Plaintiff decides to bring in an attorney to complete the discovery since one will be needed anyway for the trial. As will be seen, even famed prof. Alan Dershowitz of Harvard or the late Johnny Cochrane could not have prevailed in this matter under the circumstances;

Second Summary Judgment Brought by Long Branch and also by Plaintiff thru his attorney: – heard Oct. 3, 2014 by Judge Jamie. S. Perri: (not honorable). (No summary judgment brought by private defendants.) 

Long Branch and officials seek complete dismissal of the Amended Complaint. Plaintiff seeks partial summary judgment on the 3rd & 4th Counts that 1) the zoning permit is ultra vires and utterly void due to the unilaterally created, non-permitted use (E&L never obtained a CO) and the expansion of use without site plan approval 2) the mercantile license and CO are ultra vires and utterly void 3) certain zoning board actions are ultra vires, though voidance not sought 4) Former lots 19, 20 and 21 on Morris Ave. are to revert to the residential use (which the neighbors now admit and seek in their current zoning board application ZB13-10, discussed following) 5) All E&L lots are to be vacated within 37 days and remain so until full and proper site plan approval is obtained and which shall further abide any appeal thereto; and the sheriff is directed to sell any assets remaining thereon and place in escrow, and any persons interfering shall be deemed in contempt and subject to arrest

DECISION: Court contrives pathway for Long Branch & Officials and dismisses them from matter and denies Plaintiff motion.  Merits on zoning once again evaded. Corruption covered up. Court Complicit.

In a wickedly ghoulish 1.5 hour oral Decision aptly coinciding with the Halloween season;

The Court construes Plaintiff’s facts in the light most unfavorable to Plaintiff and as a basis for dismissal, contrary to the Brill Standard.  Under the Brill Standard, in deciding a summary judgment motion, the trial court must view the evidence in the light most favorable to the plaintiff.  The court must deny the motion if a reasonable jury hearing the evidence could find in the plaintiff’s favor on his claim. Judge Perrri does just the opposite. She distorts/minimizes/misconstrues many of Plaintiff’s documented facts of records, favors Long Branch’s  facts. and creates its own facts to which it then applies the law and which accounts for its Decision

Judge Perrri readily adopts Long Branch laches arguments that the entire controversy, res judicata and statute of limitations doctrines bars Plaintiff’s action.  As also explained prior to judge Cleary in the prerogative writ matter, the damages had not yet accrued and there is a statutory 6 month waiting period under NJSA 59:8-8 (TCA)  before they can be sought.and there was no prejudice anyway due to the continuing conspiracy.  Also, the first matter sought to void a permit while this matter is for damages for failing to terminate a nuisance, so the core facts are not the same..Also, certain issues and documents such as the dirty mercantile license had not yet been discovered.  (See Appeal Brief & Reply Brief following for these and other reasons not to bar). The court ignored that only the zoning permit, notice of violation and parking zones had been addressed previously and were barred by res judicata, instead finding the complaint is duplicative of the prerogative writ complaint.  As example of the distortion  regarding the statute of limitations “The record before the Court shows that the plaintiff knew of the alleged nuisances as far back as 1998, and that he cannot rely on the theory of continuing injury which would toll the Statute of Limitations.” However as certified/testified by Plaintiff, the nuisance was realized in 2002, not 1998 and Judge Bauman already found a continuing nuisance may exist since 2002. Amazingly, she contradicts her own acknowledgement of this fact:  “He refers to the private non-defendant’s use, which he claims began in 1965, but which he did not become aware of until 2002.” (Appeal) Judge Perri disregarded that defendants have a duty to abate a continuing nuisance that they helped create then escalate.  Plaintiff does not have a duty to provide continual tort notices.

Judge Perri uses the appeal court’s dictum that the zoning officer “was authorized” to issue a (or any) zoning permit and the dismissal with prejudice in MON L-2153-10, as proof of the zoning being resolved/authorized in all respects. The use which was unilaterally created and illegal, resulted in 3 findings of guilt for expansion without prior approvals and needed a use variance is not abated but the court nevertheless acknowledges and punts the site plan issue back to the inferior municipal court where it has already languished for 19 months under 2 different judges. This despite Plaintiff arguing that injunctive relief is not available in the municipal court contrary to City attorney’s  assertions otherwise and that they could be arrested. The charade of “enforcement” is thus allowed to continue.

The court next finds Long Branch had discretion under sections of the NJ Tort Claims Act, to change the name of the company and thereby add multiple businesses on the mercantile license and CO. The zoning board had discretion to provide deceptive notice and include E&L lots and grant variances thereto on someone else’s application. Long Branch/public entities have total discretion and immunity in regards to issuing permits and enforcement. Since everything they have done is authorized or discretionary, there can be no conspiracy or breach of fiduciary duty relating to the permits or enforcement efforts.  In other words,  she believes we live in China, Cuba or Russia and the government can do whatever it wants with regards to permits and enforcement.

She conspicuously ignores a section of the same act, N.J.S.A. 59:3-14 which provides, “Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.” She further finds “Plaintiff has failed to meet his burden of proving that the public entity’s actions were palpably unreasonable in order to hold them liable for an act or failure to act that causes a private nuisance”, citing Birchwood @ 594. However the facts of the First and Second Counts of the Amended Complaint, which are to be read as true and which make references to exhibits in the Appeal appendix, allege many of the acts involving the conspiracy are “palpably unreasonable” and constitute at least willful misconduct and malice. Judge Bauman’s prior September 28, 2012 ruling that a continuing tort, including conspiracy, may exist, further affirms willful misconduct and bad faith on the defendants’ part and provided further grounds to deny summary judgment for defendants.

Is this the type of judge we want serving us? We live in America and public entities must provide a good reason, such as limitation of resources, for their acts or omissions. Nor are they allowed to violate one’s constitutional rights or act with deliberate indifference to those rights under 42 USCA 1983. Regarding the aforementioned beach incident, The Court refused to consider these facts and counsel’s argument that there was no probable cause and Plaintiff was targeted for retaliation, a 1983 violation. The Court finds that “no reasonable jury could find that these anecdotal claims shock the conscience” whereas  under the Brill standard, a reasonable jury could consider these and other incidents as proof of a continuing pattern, not merely anecdotal. Plaintiff’s reply brief dispels Defendant’s numerous other desperate immunity arguments. The court, in essence finds Plaintiff was not physically beaten or killed by Long Branch so his civil rights were not violated.

Regarding the Arson, Plaintiff’s argument that “private defendants would not have been there to commit the arson had it not been for the permits” is “tangential” according to the judge, however, its sufficient under the Brill standard considering Plaintiff certifies he never had an arson and all these problems and threats before at his property. The court further finds “no causal link for loss of tenant due to palpable lack of investigation” though the record is clear Plaintiff’s tenant left due to the arson, not lack of a credible investigation.

This is a sampling of some of the distortion/minimization tactics and corrupt standard of review used by the Court and no doubt others.  As briefed (Appeal Brief), the City also failed to dispute Plaintiff’s Additional Undisputed Facts as to the individuals in the 7^th and 8^th counts;  the City’s answers “neither admitted nor denied” are not valid to dispel the facts asserted by plaintiff. Defendants are not entitled to summary judgment on this basis as well.  .

It appears that justice was the furthest thing from judge Perri’s mind. Rather, the contrived decision to dismiss  is meant to gain dear Long Branch back its insurance coverage as it is now found not to have acted in bad faith as all its acts/omissions are authorized or discretionary. The judge subsequently grants a motion to vacate default that had been entered against defendants Ray Greico and Atlantic Paving and Coating LLC, Joe Rosario and Rosario Contracting Corporation, d/b/a/ Rosario Mazza Demolition and Recycling Co., and Custom Lawn Sprinkler Company, LLC. three years earlier.for having sat out discovery. A default had also been previously entered against Bruno & E&L Paving but was surreptitiously vacated one year later due to the then attorney lying that Plaintiff had been served notice.

These decisions exemplify how corrupt local governments are protected by the courts and allowed to oppress its citizenry and serve as the poster child as to why reforms are urgently needed so officials who choose to engage in behavior such as conspiracies are held personally liable.

Plaintiff filed a bias complaint with the AOC, (especially considering judge Perri was also scheduled for the trial of the private Defendants),  and painstakingly documented all this but was told to take an appeal. The court touts “independence, integrity, fairness and quality service” on its website and at the courts but is it fair that one should have togo thru the time and expense of  taking an appeal due to an obviously biased judge? Shouldn’t it be re-heard by an impartial judge? Also, the appellate docket is back logged enough already.    

Nevertheless, Judge Perri is subsequently renominated and reconfirmed in 2016 in routine fashion by the judiciary committee and now has lifetime tenure until she is 70. That is unless non-partisan elections, which take into account a judges performance, demeanor and conduct,  are enacted.

The farsical nuisance trial with private Defendants, judge  Thomas F. Scully presiding:

A motion in limine was decided May 6, 2015: The court is all smiley and mentions how long Plaintiff has waited for this day. It seems justice is in the offing. The 2^nd count (nuisance) and 5^th count nuisance (intentional infliction of emotional distress) are to proceed. The arson would not be allowed in, though stated as such on the police report, so the 6^th count involving loss of a tenant due to the arson, was dropped by Plaintiff. Plaintiff surmises that the previous prosecutor and now judge, Peter Warshaw, who prevented investigation into the arson, (see “Inaction by Prosecutor Now Judge” on main page ) and served while judge Scully was a criminal judge, may have voiced concerns about the arson issue. However, rather than decide which documents and evidence would be allowed in pretrial, the court adopted Defendant’s request that this would occur on a issue by issue basis thru out the trial. This made for a disjointed trial with continuous interruptions and sending out of the jury during sidebars. (Each sidebar was 90-100% inaudible as evidenced in the transcript and disguises some of the reasons for the findings/decisions)  The Court affirms judge Baumans’s law of the case regarding an ongoing tort.  Plaintiff’s Admissions are deemed admitted as to Bruno/E&L Paving’s unilaterally created, illegal use, however they are useless since they mostly deal with matters/evidence which will be precluded during the trial itself.  No mention is made of excluding key evidence such as zoning violations, threatening voicemails and other evidence leading up to the arson,  a key 2006 appraisal report, etc. No hint that Plaintiff’s attorney would not be able to make use of most of the documents  in his preparation for trial.  Plaintiff’s attorney  had a stack of documents sitting on his desk which ended up just sitting there. The jury no doubt would take note of this.

Jury selection  was held May 7 but had to be repeated on May 11 due to an excused juror, appropriately named Ms. Arsons, seeing and reporting defendant Rosario speaking with a prospective juror lunchtime about Plaintiff’s Long Branch lawsuits.

The trial ran May 12 – 18, 2015 some of it partial days.

The court instructs the jury; “not to make conclusions until the whole story, all evidence is presented.” This wasn’t allowed to occur though.  “Credibility depends on all the case being presented” This wasn’t allowed to occur either.

“Your job is to decide case solely upon evidence presented”  Most of the key evidence and case were kept from the jury.

“Case to be decided solely on evidence or lack of evidence that’s presented”

“Certain evidence may not be presented to you.” HOW TRUE!

Finally, “Statements by attorneys are not evidence”and regarding closing arguments – “what attorney’s  say is not evidence”.  Nevertheless, as will be seen,  due to the Court  ’s  suppression of the findings  of guilt and ongoing zoning violations, Defendant’s  attorney is allowed to lie to the jurors that everything, including the parking of huge trucks restricting access on the narrow dead end  street, are legal.

The court instructs that the jury should not take notes  yet doesn’t  mention that some evidence testified to won’t be available for re-review during  deliberations.  (The jury during deliberations asked to see appraisal and economic damages reports but were denied by the Court. The jury was able to consider only appraisal and other photos redacted to remove “illegal” , Plaintiff’s zoning permit & site plan approval & Defendant’s bogus  mercantile license and Certificate of Occupancy)

It was also obvious that Plaintiff was being kept on a very tight leash in his answers. No “narratives” or expanded answers would be permitted during the trial.

Plaintiff’s attorney  is blindsided in his opening statement, due to numerous inaudible sidebars as Defendant interrupts and objects to the allegations of ongoing zoning violations, arson and other evidence showing the neighbors use is unreasonable and interferes with Plaintiff’s use.  The court admonishes Plaintiff’s attorney  in open court  prior to sidebar for mentioning this evidence yet subsequently admits this issue should have been resolved previously in limine.  As briefed  in the Appeal: “Nuisance is established when a plaintiff has presented evidence of “unreasonable interference with the use and enjoyment of land.” “The overriding principle is that all people are required to use their property in such manner as to not injure the property or other rights of their neighbor, as all people possess the correlative right to the enjoyment of their property.” Its therefore easy to understand why Defendants want this all suppressed. The court agrees and ambushes Plaintiff’s attorney by referring to the dictum from the prior Appeal and judge Perrri’s findings misconstruing of such that the use is legal and resolves all zoning due to the dismissal with prejudice. The court fails to consider or ignores that judge Perri nevertheless found that the zoning permit has been exceeded  and Defendants  may be operating in violation without site plan approval, which is why theyr’e in municipal court. Judge Scully uses this as basis to suppress anything mentioning zoning or illegal and goes even further by allowing Defendant’s attorney to argue the use is legal. Though instructed otherwise, the jury no doubt takes this as evidence that Plaintiff is being unreasonable. It does not know that the use, if any, is limited to the inside of the original garage as confirmed by deposition of the Long Branch Asst. Director of Planning and Zoning, which is suppressed.  The appraiser’s reports mentioned the zoning violations are causing the non-conformance, so much of that was stricken.  The psychologist was similarly prevented from discussing the arson stemming from Defendant’s unreasonable use of their property, or events leading up to it.

As further briefed:  “Here, the trial court improperly precluded plaintiff from introducing evidence and argument before the jury showing prior and ongoing zoning violations by the private defendants and that defendants’ activities on their adjoining properties exceeded those permitted on their land during the time period in question.  The court precluded plaintiff from showing and arguing to the jury that the actions the defendants were taking on their lots during the relevant years that plaintiff owned his neighboring property –- operating heavy equipment, stockpiling of equipment and materials -– were activities that were not permitted due to lack of prior site plan approval. Precluding this evidence and argument deprived plaintiff of a fair trial because this evidence and argument was relevant to proving plaintiff’s nuisance claim “  The arson incident and events leading thereto, was directly relevant to the jury’s consideration of whether defendants’ activities were “an unreasonable interference” with plaintiff’s own use and enjoyment of his neighboring land.  “Other evidentiary rulings by the trial court further handcuffed plaintiff in proving his nuisance claim to the jury below.”

The court precluded Plaintiff and his expert appraiser from testifying or submitting appraisal photos mentioning “legal or illegal” or even nonconforming uses on the defendants’ property as well. Defendant’s appraiser, meanwhile, was allowed to testify that there was no external obsolescence (depreciation due to outside factors) though admitting he didn’t look or go across the street due to concerns of trespassing on his clients property! Instead, he creates his own self serving standard,  comparing Plaintiffs rents to market rather than applying market rents to Plaintiff’s square footage and considering the aforementioned external factors. This is being challenged in the Appeal. When Plaintiff attempted to introduce into evidence deposition testimony from a zoning officer (Michelle Bernich), noting that Bernich had discussed with her boss, Carl Turner, “that there should be no stockpiling or expansion of use” on defendants’ properties, the court said, “this is a nuisance case, this isn’t a zoning case.”

Appeal Filed, Docket A 4973-14T4:

APPEAL BRIEF

REPLY BRIEF

Appeal Denied 9/18/17– Trial Judgment Rubber Stamped. NJ Supreme Court Petition Denied. US Supreme Court Petition Considered but Waived – See  Home/Judiciary-Law/Appeal Filed & Denied..” for details including Opinion. The Opinion is prefaced by the following: 

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION 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.

Conclusion: NJ Supreme Court lets stand dirty decision  that local entities can do whatever they want with regard to issuance of permits and enforcement of ordinances even if due to bad faith and corruption, but only for this particular case under guise of the appeal Opinion’s preamble disclaimer that since it not published or precedential,  its not binding on any other court. The suppression of evidence such as 20 notices of violations for illegal expansion of a non-conforming use in the neighbor’s nuisance trial, inaudible sidebars and allowing defendants to nevertheless tell a jury everything was all legal, makes a mockery of justice and was fine with chief justice Rabner and his bunch. 

This will be the editor’s last try in the civil courts to see if basic equitable principles and laws ever get enforced in this state and put an end to the fraud perpetrated by Rosario et al with the obvious support of Long Branch.    

This follows three rejected attempts in mid 2021 to get the mayor and city council of Long Branch to issue an injunction due to the rejected use as zoning and code violations are to be terminated within 30 days. The city refused but the land use law also allows an interested/affected property owner to seek equitable and injunctive relief. Restraints were sought and obtained in Chancery court to prevent the neighbor’s, primarily Rosario, from interfering with the use of Plaintiff’s property and to keep the peace until the use is resolved.
See “Home/Government-Media/New Mayor&Council Elected…”  for background. Rosario continues to violate the TRO and an Order to Show Cause to Find Contempt was filed and pending for hearing 9/16/22. After several hearings and several weeks deliberation by the assignment judge, the court decided to transfer the matter to law div as a prerogative writ matter requiring Long Branch to be joined, but won’t give any written reasons for the transfer though done in a prior matter. Otherwise, the court appears that it may be finally open to enforcing the rule of law in this instance unlike the prior matter. (Case 6 above)  

12/28/21: Complaint.OSC.Restraints.Pdf5 (Chancery/Equity Div.)
All Complaint & TRO Exhibits except videos may  be viewed at: https://drive.google.com/drive/folders/14un0cbw27FoxD6C8O67EZvTnQassTV7n?usp=sharing

12/29/21: TRO.Obtained.pdf 6
4/20/22: OSC Contempt Filed.pdf7
5/24/22: Transfer.Order. Pdf 8
7/7/22: Amended Complaint.Pdf9
All Amended Complaint Exhibits except videos may  be viewed at: https://drive.google.com/drive/folders/14un0cbw27FoxD6C8O67EZvTnQassTV7n?usp=sharing
All filings can be found here after entering docket numbers:
https://portal.njcourts.gov/webcivilcj/CIVILCaseJacketWeb/pages/publicAccessDisclaimer.faces

7/16/19 Indefinite Adjournment @ 1st Planning Bd. Hearing After 9 Month Delay. Plan Identical to One Previously Rejected by Zoning Bd.

9/6/22 Contempt Hearing Highlights – Motion denied, TRO Attacked

Summary Judgment Filings to terminante the illegal use once and for all and Opposition thereto can be found at the following link as well as the court’s site:

Plaintiff’s Partial Summary Judgment Motion

On 3/9/23  judge Gregory L. Acquaviva denied all points/relief of Plaintiff’s summary judgement by ignoring the true facts, substituting his own, and otherwise resorting to lies and distortion in furtherance of his agenda to save face for the city attorney, whose son was silent co counsel observer at the hearings, and curry favor with politicians who may assist in his upcoming renomination as judge.

See Home Page, left column, & click on “New Mayor/Council Elected. Honest Service Sought” for background details.

FairtrialNJ doesn’t think judges should have an agenda or lie and distort to achieve it.

3.9.23.SJ.Order.Reasons.

See for yourself the lies & distortion and refusal to apply the standard/enforce the law:

Reconsideration.3923.Order

Motion to Recuse

Oral “argument” is scheduled for 5/26/23 though unopposed and not requested by Plaintiff. Since unopposed, shouldn’t it be granted? lol.

This all proves the paramount importance of the trial judge and the need to insure they are truly independent and non-partisan and will fairly apply the law.