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Ferolito v. Park Hill Association

July 27, 2009

ARNOLD P. FEROLITO, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
PARK HILL ASSOCIATION, INC.*FN1 AND PAGANO COMPANY, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND FAY BERLIN, MARY CHRISLER, JOAN DOMAS, JOSEPH ROSE AND JOHN WALTERS, DEFENDANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-7-05.

The opinion of the court was delivered by: Grall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued June 2, 2009

Before Judges Skillman, Graves and Grall.

Plaintiff Arnold P. Ferolito owns one of 142 residential condominium units housed in eleven separate apartment buildings known as Park Hill. The defendants are Park Hill Association, Inc. (Association), Pagano Company, which manages the buildings, and individual members of the Association's board of directors. On a prior appeal, we affirmed an order dismissing plaintiff's complaint without prejudice and reversed and remanded an order requiring plaintiff to pay defendants $10,000 for fees and costs pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1. Ferolito v. Park Hill Ass'n, Inc., No. A-2742-05 (App. Div. Nov. 27, 2007).

On remand, the trial court supplemented the initial award, added an amount for fees and costs on remand, and denied defendants' application for fees and costs on appeal. Judgment was entered in favor of defendants and against plaintiff individually in the amount of $26,988.62. Plaintiff appeals and contends that defendants are not entitled to an award. Defendants cross-appeal contending that the award should be higher and include fees and costs on appeal.

I.

The underlying dispute involves plaintiff's request for the Association to install a satellite dish system. His condominium unit is occupied by his mother-in-law, who speaks Russian. Installation of the system would allow her to receive programs broadcast in that language. Between January and October 2003, plaintiff submitted various proposals and appeared before the board. During the same period, the board sought additional information about the cost, surveyed the residents to assess their interest in the project and determined to take no action. In January 2004, plaintiff submitted a new proposal from a different carrier. That satellite service company provided a more detailed description in September 2004. After the proposal was presented at the Association's annual meeting in November 2004, the board decided to conduct another survey to determine whether there was sufficient interest to warrant approval of the project.

On January 7, 2005, plaintiff filed a complaint alleging that defendants arbitrarily withheld approval, count one; denied his rights under the Association's public offering statement and by-laws, count two; and violated his rights under 47 C.F.R. § 1.4000, count three. Prior to filing an answer, defendants served a notice and demand for plaintiff's attorney to withdraw the complaint pursuant to Rule 1:4-8. The notice and demand included the following explanation:

The Association and Pagano believe that the complaint, as it refers to them, is in violation of R. 1:4-8, in that it is frivolous and constitutes an abuse of process because it legally lacks any foundation. Accordingly, the Association and Pagano demand that you dismiss the Complaint against them.

The claims against the Association and Pagano arise from the frivolous claim that the Association's policy regarding a satellite dish antenna violates OTARD or other Federal law. The exterior surface of the windows at the Association are clearly general common elements pursuant to the Master Deed. Accordingly, the Federal Communications Commission Over the Air Reception Device Rule (the "FCC Rule") does not apply. The FCC Rule does not limit the power of a community association to restrict the use of a satellite dish on the general common elements. Rather, the FCC Rule only regulates such restrictions regarding areas within the exclusive use or control of the condominium unit owner.

Under the Association's recorded Master Deed and By-laws, it is clear that the exterior of the building is a general common element. The FCC Rule therefore does not permit your clients to attach a satellite dish antenna to the window........*fn2

For the foregoing reasons, Park Hill Condominium Association, Inc. and Pagano Company hereby demand that the above-captioned complaint against them be dismissed ...


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