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City of Bayonne v. Landico Realty

December 22, 2008

CITY OF BAYONNE, PLAINTIFF-RESPONDENT,
v.
LANDICO REALTY, INC., COPTIC IRREVOCABLE TRUST, AND ZAKLAMA IRREVOCABLE TRUST, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 17-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2008

Before Judges Sapp-Peterson and Alvarez.

This is an appeal from a trial de novo conducted in the Law Division pursuant to Rule 3:23, as a result of which defendants, Landico Realty, Inc. (Landico), Coptic Irrevocable Trust (Coptic), and Zaklama Irrevocable Trust (Zaklama), were convicted of violating City of Bayonne (City or Bayonne) municipal ordinances. For the reasons that follow, we affirm the convictions as to Zaklama and Coptic. We reverse as to Landico.

Esmat Zaklama (Esmat) is the trustee of both trusts and the president of Landico. Zaklama is the named defendant on summons number 0901-SC-017414, dated March 17, 2005, which charges that the premises at 973-75 Broadway are in violation of Bayonne, N.J., Rev. Gen. Ordinances § 17-1.1(a), failure to maintain property free of trash and debris. Summons number 0901-SC-018788, issued February 6, 2006, against Landico as to 738-740 Broadway, charges a violation of Bayonne, N.J., Rev. Gen. Ordinances § 17-15.9, failure to install glass in boarded-up windows. A third summons, number 0901-SC-021702, issued to Coptic on December 5, 2006, alleges failure to obtain a certificate of continued occupancy after the transfer of ownership contrary to Bayonne, N.J., Rev. Gen. Ordinances § 35-4.7(c).

After many highly acrimonious days of preliminary hearings and trial, defendants were convicted on February 15, 2007, in the Bayonne Municipal Court of all three violations. The de novo appeal to the Law Division was decided on August 22, 2007, at which time defendants were again found guilty.

Esmat has had a number of summonses issued against him and/or his trusts for violation of city ordinances, as a result of which either he was acquitted or the charges were dismissed. Summons 0901-SC-017414 resulted in a fine of $1000 and court costs and assessments of $33. On 0901-SC-021702, a fine of $1250 and $39 in court costs and assessments were imposed. On 0901-SC-018788, a fine of $1000 and $33 in court costs and assessments were also imposed.

Our task on appeal is to determine whether the conclusions reached in the Law Division trial de novo are based on sufficient credible evidence. State v. Johnson, 42 N.J. 146, 162 (1964). In the process, substantial deference must be extended to credibility determinations of the trial court. State v. Barone, 147 N.J. 599, 615 (1997). We need not give particular deference, however, to the trial court's interpretation of the law. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). For ease of reference, each summons will be considered separately.

0901-SC-017414 (trash and debris)

The following facts were developed during the trial as to the trash and debris summons. On February 24, 2005, Deputy Fire Chief Timothy Coughlin issued a notice of violation to Zaklama and advised that all trash and debris had to be removed from 973-75 Broadway by March 16, 2005. The relevant provisions of the Fire Code were provided to Esmat. A copy of the notice was forwarded to Simon Stergion, a health department inspector, who thereafter telephoned Esmat on March 3, 2005, about the problem. Stergion gave Esmat a March 10, 2005 deadline for cleanup. Stergion called again on March 14, 2005, and Esmat assured Stergion that the problem had been corrected.

An inspection was accordingly scheduled for March 17, 2005, and Esmat agreed to meet Stergion at 973-75 Broadway. That same day, Esmat called back and canceled the appointment. He admitted the condition had not been corrected, and asked for more time, which Stergion refused. When Stergion went to the property he found that the debris and trash remained, and, as a result, he issued the summons. Stergion testified that he sent the summons by registered and regular mail to Esmat, whom he mistakenly believed was the owner of the property at 973 Broadway. Stergion made his decision about to whom to send the notice based on tax and water records. The municipal court judge corrected and amended the summons during the trial upon discovering that Zaklama, not Esmat, was the record owner. See R. 7:2-5.

Esmat testified that he never received a summons, and he denied having discussed the charge with anyone. He also denied having received a letter from the court regarding scheduling or having knowledge of a second letter addressed to the court from his attorney about this particular violation.

On behalf of Zaklama, it is contended that the trash and debris ordinance requires notification as set forth in Bayonne, N.J., Rev. Gen. Ordinances ยง 17-1.3: "[T]he Director [of Health] shall notify the owner, tenant, or person in possession of the lands complained of, in writing, either personally or by registered mail, to remove [the condition] within (10) days after receipt of the notice." The trial judge found that Deputy Chief Coughlin did in fact issue a detailed, specific written notice of violation to Esmat, and that it was sufficient to put Zaklama on notice. The ...


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