On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-960-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Fisher and Baxter.
Defendants Ruth and Richard Sukiennik are owners of a condominium unit who appeal from the October 19, 2007 denial of their motion for reconsideration. In particular, they argue that: (1) the October 11, 2005 amendment to the condominium association by-laws was not duly adopted at the annual meeting of the plaintiff Alayna Homeowners Association (Association) and consequently the amendment in question, which limits to two the number of the cars that unit owners are permitted to park on condominium property, is invalid and cannot be enforced; and (2) the motion judge committed reversible error when he denied their motion for reconsideration. We conclude that because the amendment in question was duly adopted, it is enforceable. We affirm the order under review.
As a threshold matter, plaintiff argues that the issue of the validity of the October 11, 2005 amendment was not raised in defendants' motion for summary judgment or in defendants' opposition to plaintiff's cross-motion. Defendants filed no certification on this issue, as required by Rule 1:6-2(a). Consequently, plaintiff argues that defendants were procedurally barred from raising this issue orally for the first time during argument of the summary judgment motions. See Ibid. Plaintiff further argues that defendants' motion for reconsideration was also not a suitable vehicle for raising this issue. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)(holding, inter alia, that a motion for reconsideration should be denied where the evidence and issues raised during such motion could have been raised during the initial motion). Plaintiff argues that defendants are not entitled to challenge the validity of the October 11, 2005 amendment on appeal.
Despite the procedural defect that plaintiff raises, we exercise our discretion to entertain defendants' argument that the parking amendment in question was not duly adopted. Notice was given to the membership of the intent to adopt such a bylaw, and the by-law was duly adopted on October 11, 2005. After the parking amendment was adopted, notice of such amendment was provided to all unit owners, including defendants. Consequently, defendants' argument that the October 2005 parking restriction was a product of the board of directors' ultra vires action lacks merit.
We likewise reject defendants' claim that because they removed the challenged third vehicle from the parking lot before the judge issued the injunction in question, their alleged violation of the by-law amendment was moot. Plaintiff argues that the issue is capable of repetition and tends to evade review. Plaintiff also contends that defendants could frustrate the efforts of the Association to deal with the prohibited third vehicle by constantly removing the vehicle from the premises prior to the motion date and then bringing it back after the court proceedings are concluded. We agree. Consequently, the issue should be adjudicated despite defendants' claim of mootness.
As to the attorneys fee issue, we agree with plaintiff that the applicable statute, N.J.S.A. 46:8B-15(g), grants to condominium associations "[s]uch other powers as may be set forth in the master deed or by-laws, if not prohibited by P.L. 1969, c.257 (C.46:8B-1 et seq.) [N.J.S.A. 46:8B-1 to -38] or any other law of this State." The by-laws authorize the award of attorneys fees. The October 11, 2005 by-law amendment specifically provides that a violation of the vehicle parking provisions will result in "costs . . . be[ing] charged to the homeowners in violation. This includes legal and towing charges." Defendants' claim that the judge erred in awarding plaintiff attorneys fees lacks merit.
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