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Decarlo v. Borough of Cliffside Park

Decided: January 5, 1965.

DOMINICK DECARLO, AND VISIDOR CORP., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS,
v.
BOROUGH OF CLIFFSIDE PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT



Schneider, J.c.c. (temporarily assigned).

Schneider

On March 24, 1961 defendant Borough of Cliffside Park, by its employees, placed a directional sign for a one-way street at the intersection of Marion Avenue and Palisade Avenue in that municipality. Plaintiff DeCarlo is owner of Lots 5, 6, 7, and 8 in Block 110 on the official assessment map of Cliffside Park. There is a commercial building on that property fronting on Palisade Avenue, and plaintiff Visidor Corp. owns and operates a restaurant and tavern there.

Marion Avenue runs east and west off Palisade Avenue. The property in question, known as 783-5 Palisade Avenue, is located at the corner of Marion Avenue. The premises are across the street from Palisades Amusement Park. There is a parking area in the rear of the building, with access from Marion Avenue only. At the westerly end of Marion Avenue there is an unpaved, undedicated strip, being a former trolley car right of way. Two other streets were also designated as one-way streets, with Marion and Franklin Avenues going east and Wayne Avenue going west. Plaintiff contends the resulting effect is to keep all traffic off Marion Avenue. Palisade Avenue is a busy street and no parking is permitted when the amusement park is open.

The designation of these one-way streets was only by placing directional signs. No ordinance was ever passed and no approval obtained from the Division of Motor Vehicles. It was conceded that the action was improper and illegal.

Suit was instituted in two counts. The first was to compel the removal of the signs. This was accomplished by summary judgment. The second count is for damages for loss of business in the restaurant. Plaintiff DeCarlo admits he suffered no damage, and therefore the second count is dismissed as to him. The case continues with the suit by the tenant for business loss.

While this incident took place in early 1961, no suit was started until March 5, 1964. The signs were removed when summary judgment was given on the first count and judgment was entered.

The issue is whether a suit for damages will lie against a municipality under the above state of facts, on the theory of the creation of a nuisance, sounding in negligence. Plaintiff claims a loss of $15,000.

Plaintiff explains the delay of more than three years after the erection of the sign before suit was started by contending it tried to persuade the officials to remove the signs and they continually promised to do so. Had it started suit immediately, the sign would have been down in a month. Although this might have reduced the amount of damages, it still leaves the question of liability for money damages.

To recover in negligence for the creation of a nuisance condition, plaintiff must prove active wrongdoing, the municipal function here being governmental. We know that if the municipality had dug a ditch which prevented access to the restaurant, and some one was hurt, there could be recovery. The placing of the sign did not prevent anyone from entering the restaurant. It did prevent parking in the parking area, if the illegal sign was obeyed.

We can find no record of any case in New Jersey which carries active wrongdoing to the extent requested in this case. In Milstrey v. Hackensack , 6 N.J. 400 (1951), plaintiff was permitted to recover because of a broken and depressed municipal sidewalk; in McAndrew v. Mularchuk , 33 N.J. 172 (1960), recovery was had for shooting by an inadequately trained reserve policeman. In Fagliarone v. North Bergen

Township , 78 N.J. Super. 154 (App. Div. 1963), cert. den. 40 N.J. 221 (1963), plaintiff's land was flooded by a sewer line improperly designed and found to be inadequate; and in Kelley v. Curtiss , 29 N.J. Super. 291 (App. Div. 1954), ...


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