On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8815-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Graves and Lihotz.
Plaintiffs Richard Del Vecchio and Deborah Del Vecchio are the sole shareholders of two corporations: (1) Delcare Corporation, doing business as Parkview Residential Home (Parkview); and (2) Hazelcrest Manor Nursing Home, Inc. (Hazelcrest). Plaintiffs appeal from an order dated October 12, 2005, denying their motion to disqualify defendants' counsel, and a subsequent summary judgment entered on February 23, 2006, dismissing their first amended complaint "in its entirety with prejudice as to all defendants." After reviewing the record in light of the contentions advanced on appeal, we affirm.
The Parkview and Hazelcrest facilities are located in a residential single-family district in the Township of Bloomfield (the Township). For many years, plaintiffs operated the facilities as pre-existing nonconforming nursing homes. More recently, however, plaintiffs obtained a state license to operate Parkview as a residential health care facility (RHCF), and, in an unpublished opinion, we noted that although Hazelcrest was initially operated as a nursing home, it was subsequently operated as a RHCF and then a boarding home. Hazelcrest Manor, Inc. v. Zoning Bd. of Twp. of Bloomfield, No. A-0470-05 (App. Div. May 25, 2007) (slip. op. at 5). Nevertheless, plaintiffs failed to obtain the Zoning Board's approval to change the use from a nursing home to a RHCF as required by N.J.A.C. 8:43-2.4(b)(4), (i) ("An initial license shall be issued to a [RHCF] when the following conditions are met . . . approvals are on file with the Department from the local zoning, fire, health, and building authorities," and "[t]he license shall not be renewed if local rules, regulations and/or requirements are not met."), and from a RHCF to a boarding home as required by N.J.A.C. 5:27-1.6(m) ("No license to operate a rooming or boarding house shall be issued until the applicant has provided proof of local zoning approval.").
On October 4, 2002, plaintiffs filed a notice of claim, pursuant to N.J.S.A. 59:8-4 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3 (TCA), against the Township, "including but not limited to the Zoning and Building Departments" and any of their "representatives." In their TCA notice, plaintiffs claimed "economic" and "non-economic" damages as a result of being "harassed through an abuse of process (improper inspections, disparity of treatment as compared with other similar facilities and actions with no support and basis in fact)."
On October 30, 2003, plaintiffs filed a sixteen-count complaint in the Superior Court, Law Division, seeking compensatory and punitive damages against the Township; the Township's Zoning Board of Adjustment (Zoning Board); the Township's Department of Health (Health Department); the Health Department's Chief Inspector, Gloria Shorter, both individually and in her official capacity; Township council members Raymond Tamborini and Charles Daglian, both individually and in their official capacities; Township Administrator Mauro Tucci, both individually and in his official capacity; and "other unknown defendants."
In their first amended complaint, plaintiffs repeated the allegations and claims in the original complaint, and they added three more defendants and three more claims. The additional defendants were Township Council member Janice Maly, both individually and in her official capacity, and the Township's Mayor and Council.
With the additional three claims, the amended complaint comprised nineteen counts. These included eight claims under 42 U.S.C.A. § 1983 alleging the deprivation of certain rights, one claim each against the Township (First Count), the Mayor and Council (Second Count), the Zoning Board (Third Count), Councilman Tamborini (Fourth Count), Councilman Daglian (Fifth Count), Councilwoman Maly (Sixth Count), Administrator Tucci (Seventh Count), and various unnamed defendants (Ninth Count).
The complaint also set out claims against the Mayor and Council for violation of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (OPMA) (Eighth Count); against all defendants for tortious interference with plaintiffs' existing economic advantage and with their prospective economic advantage, as well as for harassment (Tenth, Eleventh, and Sixteenth Counts, respectively); and against the individual defendants for slander, libel, disparagement, the negligent or intentional infliction of emotional distress, and conspiracy (Twelfth, Thirteenth, Fourteenth, Fifteenth, and Seventeenth Counts, respectively).
Finally, plaintiffs sought a declaratory judgment that the Township and the Zoning Board had subjected plaintiffs to "disparate treatment," as well as injunctive relief against all defendants to cease interfering with plaintiffs' operation of Parkview and Hazelcrest (Eighteenth and Nineteenth Counts, respectively).
On April 7, 2004, defendants filed an answer, denying the pertinent allegations of the complaint and asserting affirmative defenses. All defendants were represented by a single law firm: Schwartz Simon Edelstein Celso and Kessler (the Schwartz Firm).
On August 5, 2005, Judge Simonelli entered an order that denied defendants' motion for partial summary judgment without prejudice and granted plaintiffs' motion to extend discovery until October 20, 2005. On August 24, 2005, plaintiffs filed a motion to disqualify defendants' counsel from representing any of the defendants. The basis for plaintiffs' motion was an alleged conflict of interest between the individual defendants and the government-entity defendants. In their opposition to the motion, defendants claimed there was no conflict because the Township would not seek reimbursement of legal expenses from any of the individual defendants, and the Township agreed to indemnify "the individual defendants for any damage awards with regard to plaintiffs' claims for defamation, intentional infliction of emotional distress and tortious interference with economic relations or advantages." In ...