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Finderne Heights Condominium Association, Inc. v. Rabinowitz

January 23, 2007

FINDERNE HEIGHTS CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-APPELLANT,
v.
PAUL RABINOWITZ, NANCY RABINOWITZ AND ELLEN THOMAS, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. C-12007-05.

The opinion of the court was delivered by: Lyons, J.S.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 13, 2006

Before Judges Stern, A. A. Rodríguez and Lyons.

Plaintiff, Finderne Heights Condominium Association (the "Association"), instituted an action seeking to enjoin defendants, Paul Rabinowitz, Nancy Rabinowitz and Ellen Thomas, from violating the Association's governing documents and compelling them to comply with the Condominium Act, N.J.S.A. 46:8B-1 to -38. Defendants moved to dismiss plaintiff's complaint arguing primarily that plaintiff had to first submit its claims to alternative dispute resolution ("ADR"). The trial court granted defendants' motion. Plaintiff now appeals, claiming it has no statutory duty to first submit its claims to ADR. Plaintiff also complains that the trial court erred in determining the Association was not entitled to bring its claims under the Condominium Act and the Association's governing documents, by failing to grant plaintiff oral argument and by failing to issue the required findings of fact and conclusions of law. The procedural history is as follows.

On January 24, 2005, plaintiff filed its complaint against defendants. Plaintiff sought an injunction ordering and requiring that defendants comply with the Condominium Act and the Association's governing documents and enjoining defendant Thomas from occupying or using the property in such a manner as to violate the Association's rules.

On January 27, 2005, the court issued an order to show cause as to why the court "should not issue a preliminary injunction prohibiting the defendants from violating the governing documents, contacting board members, engaging in any acts of violence or further acts of harassment, defacement of property or trespassing." Although the trial court initially scheduled the return date for March 4, 2005, the court subsequently adjourned the date at defendant Thomas' request due to pending related matters in the Bridgewater Township Municipal Court involving Thomas.

On or about March 28, 2005, Rabinowitz filed a notice of motion, along with a supporting Brief, and the Certification of Nancy Rabinowitz, seeking to dismiss plaintiff's complaint on various grounds. By letter dated April 21, 2005, Thomas joined in the Rabinowitz motion, specifically, as to the point that plaintiff failed to comply with the statutory pre-litigation requirement to offer Thomas alternative dispute resolution prior to commencing the action. Plaintiff opposed this motion and filed a brief and the supplemental certifications of Lin Modrowsky and Neyd Bogantes.

On May 13, 2005, the trial court denied and dismissed plaintiff's order to show cause, ordering that:

Plaintiff's Order to Show Cause and issue a preliminary injunction is hereby DENIED and DISMISSED for failure to exhaust alternative remedies. Primary jurisdiction rests with the Municipal Court and Plaintiff should have approached this matter through the Municipality. Plaintiff failed to attend ADR, which is available through the Municipal Court, as well as by statute, before requesting relief from this Court.

By letter dated June 3, 2005, counsel for Rabinowitz requested the trial court clarify its order of May 13, 2005, namely that plaintiff's entire complaint was dismissed, not just plaintiff's order to show cause. On June 15, 2005, the trial court signed an order dismissing the complaint. On July 22, 2005, plaintiff filed a notice of appeal with this court appealing the trial court's orders of May 13, 2005 and June 15, 2005.

Based on the pleadings, the facts that give rise to this matter are as follows. Defendant, Thomas is the daughter of defendants, Paul and Nancy Rabinowitz. Thomas resides with her husband and two children in the condominium unit owned by her mother, Nancy Rabinowitz. The Association governs the condominium unit located in Bridgewater.

According to its verified complaint, the Association is a non-profit corporation established under the statutes of New Jersey and the Condominium Act, N.J.S.A. 46:8B-1 to -38. Under the Association's governing documents, the Association is responsible for the ...


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