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City of Long Branch v. Cangemi

May 4, 2009

CITY OF LONG BRANCH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY CANGEMI AND LYNDA CANGEMI, HUSBAND AND WIFE, DEFENDANTS-APPELLANTS, AND CITY OF LONG BRANCH, LONG BRANCH SEWERAGE AUTHORITY AND PERTH AMBOY SAVINGS INSTITUTION, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5884-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 4, 2009

Before Judges Axelrad and Parrillo.

In this condemnation action, defendant property owners, Anthony and Lynda Cangemi, appeal from a jury verdict asserting a variety of issues, including the weight of the evidence, deprivation of a peremptory challenge due to nondisclosure of a friendship between the trial judge and jury foreperson, and incorrect polling. Defendants also appeal from a post-judgment order for repayment of a mortgage to the City of Long Branch (Long Branch) resulting from the transfer of title to the property. We affirm.

By Resolution #38-96 adopted on January 23, 1996, Long Branch's governing body designated defendants' property located at 7 Franklin Terrace, Block 225, Lot l0, in Long Branch as part of the Pier Village Sector of the Oceanfront Broadway Redevelopment Area. On January 23, 200l, Long Branch adopted Ordinance #1-01, authorizing the institution of eminent domain proceedings to acquire the property. The property spans 3,310 square feet, with a frontage of forty feet along Franklin Terrace and an average depth of approximately eighty-two feet. It was improved with a two-story plus basement residential building containing a total area of approximately 1,632 square feet above grade. The dwelling space consisted of a 684 square foot finished basement apartment, a 912 square foot first floor unit, and a 720 square foot second floor unit. There was also a 400 square foot apartment in the converted garage at the rear of the property. Thus the total gross dwelling area of both buildings was 2,716 square feet.

On October 21, 1997, defendants gave a mortgage to Long Branch in the amount of $59,315 on the subject property. The mortgage was given in connection with funds defendants received as a result of a Regional Contribution Agreement (RCA) between Long Branch and the Township of Middletown in which the latter agreed to fund the rehabilitation of 150 housing units in Long Branch. Defendants received the RCA funds upon the condition the property be rented to low and moderate income families for a period of ten years.

On December 18, 2001, Long Branch filed a complaint to acquire defendants' property by eminent domain. On February 27, 2002, Long Branch filed a Declaration of Taking and deposited its estimated fair market value of $182,000 with the Clerk of the Superior Court, Trust Fund Unit. An Amended Complaint and Declaration of Taking was filed on February 28, 2003. On December 3, 2007 trial commenced and concluded on December 6, 2007, at which time the jury awarded defendants $218,000 as just compensation for the taking of their property. An Order for Judgment was filed on December l9, 2007.

Defendants then filed a motion for a new trial and/or additur. Long Branch filed a cross-motion for repayment of the mortgage on the property. Defendants' motion was denied after oral argument on January 18, 2008. Oral argument was held on Long Branch's motion on February 29, 2008, and the motion was granted by order of May 16, 2008. This appeal ensued.

On appeal, defendants argue the verdict is against the weight of the evidence, specifically contending the appraisal evidence presented by Long Branch's expert was not based on comparable sales that were in any way reflective of beach block properties. Defendants further argue they were deprived of a fair trial by: (1) their inability to exercise a peremptory challenge because of the nondisclosure by the trial judge that she and the proposed jury foreperson were long and close personal friends, and (2) the judge's failure to properly poll the jury to discover whether at least five of the six jurors concurred in the verdict as required by Rule 1:8-2(c) and Rule 1:8-10. Defendants further contend their involuntary transfer of the property resulting from condemnation did not violate the mortgage provision requiring repayment upon the conveyance of title within ten years. They urge that Long Branch be estopped from taking such position which they claim is contrary to the intent of the parties to the transaction. We have considered these arguments in light of the record and applicable legal standards and find them unpersuasive.

Long Branch presented the appraisal of Hugh McGuire, who estimated the fair market value of the subject property as of December l, 2001 to be $189,300.*fn1 Defendants' expert, Michael Ehrenberg, appraised the property as of that date at $380,000. Both experts were New Jersey Certified General Real Estate Appraisers. McGuire was also a New Jersey licensed real estate broker and held an MAI designation from the Appraisal Institute, a CRE designation from the National Association of Realtors, and a CTA license from the State of New Jersey authorizing him to serve as a tax assessor. Ehrenberg was a senior member of the American Society of Appraisers. McGuire related that he testified as an expert in the Tax Court about once a week for the past twenty years, and in numerous counties had been appointed by the Superior Court as its own expert in the valuation of real property and testified as an expert on behalf of both the condemnor and property owners. He had also been appointed by the court as a condemnation commissioner in Monmouth County. Ehrenberg explained that he had testified before the Monmouth County Condemnation Commission, various tax boards and the Tax Court, planning boards, and zoning boards. After hearing the appraisal evidence in detail and reaching conclusions as to the credibility of the expert opinions, the jury returned its verdict in the amount of $218,000 as just compensation for the taking of defendants' property.

In denying defendants' motion for a new trial as against the weight of the evidence, the court stated:

As we say, a motion for a new trial is addressed to the sound discretion of the trial judge, Baumann v. Marinaro, 95 N.J. 380, 389 (1984). Under Rule 4:49-1(a), the trial judge may order a new trial when having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.

In this case, the value of the property was established through the testimony of two expert witnesses. Each party presented an expert witness who used the comparable sales approach. The jury had the opportunity to review that testimony. The numbers were totally different. . . . But each attorney was given the opportunity to present a case [and] [t]o cross examine the witnesses on the other side. Each attorney ...


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