November 25, 2008
DR. AMY NEUSTEIN, DR. FRAGRANCE HAN, LINO VIRDO, C.P.A., AND CHIA HUNG TSAI, PLAINTIFFS-APPELLANTS,
THE ADMIRAL'S WALK CONDOMINIUM ASSOCIATION, INC. A NEW JERSEY NON-PROFIT CORPORATION, FRANK PALOTTA, SHELLY BUCHMAN, HOWARD LEVINE, BURR RUTLEDGE, AND CAROL EMMERLING, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-157-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 6, 2008
Before Judges Stern, Waugh and Newman.
Plaintiff Fragrance Han appeals from the dismissal on summary judgment of the verified complaint that she and other owners of residential units at the Admiral's Walk condominium complex filed against Admiral's Walk Condominium Association, Inc., and members of the condominium board. She also appeals the denial of plaintiffs' cross-motion to amend the complaint.
Plaintiffs sought to block certain expenditures for reconstruction of portions of the condominium buildings, particularly external balconies. Defendants filed a counterclaim seeking to enjoin plaintiffs from allegedly slanderous and disruptive behavior, in addition to compensatory and punitive damages. After defendants moved for summary judgment, plaintiffs filed a cross-motion seeking dismissal of defendants' counterclaim and also for leave to amend their complaint.
We dismiss as moot that aspect of Han's appeal that sought to block the reconstruction project. We affirm the denial of the cross-motion.
The primary issue presented in this case was whether the condominium board acted improperly in proceeding with repairs to balconies and related structures at Admiral's Walk under its authority to make emergent repairs. The board took the emergency action following its unsuccessful efforts to obtain the approval, as required in the by-laws, of a super-majority of the unit owners for a more expensive refurbishment plan. Plaintiffs argued that the board's emergency authority was invoked in bad faith by the board members to circumvent the earlier vote against the refurbishment plan.
Han and three other unit owners filed a verified complaint and sought an order to show cause with temporary restraints on May 16, 2007. The parties agreed to temporary restraints pending a June 22, 2007, return date. The temporary restraints were continued on the return date. They were lifted in August 2007, as the result of a motion by defendants. The work was allowed to proceed. A stay was denied by the Chancery Division, and no stay was sought from us.
On January 7, 2008, the Chancery Division granted defendants' motion for summary judgment and dismissed the verified complaint. Defendants voluntarily withdrew their counterclaim. The motion judge also denied plaintiffs' cross-motion for leave to file an amended complaint. Han was the only plaintiff to appeal.
At oral argument, we were informed that the repair work is at least sixty percent completed. We have concluded, therefore, that the appeal of the claims seeking injunctive relief is moot as a practical matter. See Statewide Hi-Way Safety, Inc. v. N.J. Dept. of Transp., 283 N.J. Super. 223, 225-26 (App. Div. 1995); Cinque v. N.J. Dept. of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993). Consequently, we dismiss that portion of the appeal.
In their cross-motion, plaintiffs sought to amend their complaint to state a claim for money damages. The motion judge denied that application. In his January 7, 2008, letter opinion, the motion judge concluded that plaintiffs had not "as of yet" sustained any damages and that, "[w]hen and if damages are sustained, a damage claim can be brought." Given the circumstances then existing, we see no abuse of the motion judge's discretion and affirm. See Notte v. Merch. Mut. Ins. Co., 185 N.J. 490, 501-02 (2006).
Affirmed in part and dismissed as moot in part.
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