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Davis v. Howell Management Co.

November 19, 2009

ROSETTA C. DAVIS, PLAINTIFF-APPELLANT,
v.
HOWELL MANAGEMENT CO., INC., A CORPORATION; JAMES HOWE, LYNN HOWELL, INDIVIDUALLY AND AS OFFICERS AND/OR DIRECTORS OF HOWELL MANAGEMENT CO., INC.; FOX DOVER TENANTS CORPORATION, A CORPORATION; GLENN FALTICO AND WARREN HOWELL, INDIVIDUALLY AND AS OFFICERS AND/OR DIRECTORS OF FOX DOVER TENANTS CORPORATION, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2909-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2009

Before Judges Sabatino and Lyons.

This case arises out of the removal and destruction of the contents of a storage bin located in the basement of a cooperative housing project. Plaintiff Rosetta C. Davis, a resident of the complex, owned the stored possessions that were discarded. She appeals the Law Division's order granting summary judgment to defendants, whom she claims are responsible for her loss. We affirm in part, and remand in part for further proceedings.

The operative facts are largely undisputed. Plaintiff is a tenant and shareholder, pursuant to a proprietary lease, of a cooperative apartment complex known as Fox Hill Apartments in Dover. Defendant Fox Dover Tenants Corporation ("the Association") is the owner of Fox Hill Apartments. Fox Hill Apartments is a cooperative housing corporation with a Board of Directors. Each resident at Fox Hill is issued a Proprietary Lease, through which he or she pays rental and maintenance fees to the Association.

Under the terms of the Proprietary Lease, storage space was provided by the Association to each resident under a revocable license. The Proprietary Lease instructs residents to refrain from using the storage space for valuable or perishable items. The storage space was located in the basement of plaintiff's apartment. Plaintiff was assigned a single storage bin for her use, which she secured with her own lock.

The Proprietary Lease provides the Association and its agents with authorization to enter the apartment and the resident's designated storage space "at any reasonable hour of the day upon notice, or at any time and without notice in case of emergency[.]" The Association is granted such access "to make or facilitate repairs in any part of the building or to cure any default by [a resident.]" The resident is obligated to provide the Association with a key to each lock the resident uses for his or her apartment and storage bin. If the resident is not present to open an apartment or storage space, and he or she has not furnished the Association with a duplicate key, the Association may "forcibly enter the apartment or storage space without liability for damages by reason thereof . . . and without in any manner affecting the obligations and covenants of [the] lease."

At some unspecified time between July 25 and July 30, 2007, employees or agents of the Association broke the padlock on plaintiff's storage bin, which was labeled with her name. They removed most of the bin's contents, and then discarded or damaged them. The Association contends that this occurred accidentally as part of a general cleanup effort, and that its workers were under the mistaken impression that the property in the storage bin had been abandoned there by a previous resident.

Several days later, on July 30, 2007, defendant Glenn Faltico, the president of Fox Hill's Board of Directors, circulated an apologetic memorandum to all shareholders and residents of Fox Hill Apartments. The memo explained that certain property in the storage area had been inadvertently discarded during a cleanup of the basement areas. According to the memo, efforts had been made to retrieve the property once the staff realized that it belonged to current residents, but unfortunately some items had already been hauled away. Management and the Board of Directors were immediately notified, and an investigation was launched. The memo noted that "policies are being implemented to prevent such a thing from happening again." The memo concludes with an assurance that "[s]teps for proper restitution are currently being explored."

As a result of this mistake, many of plaintiff's belongings were discarded or damaged. Several of the lost items were personal in nature, including such things as high school yearbooks and wedding gifts. Plaintiff tabulated the value of the lost or damaged items at $16,658. Despite Faltico's written apology and his assurance that the loss was accidental, plaintiff felt that she had been deliberately targeted to have her property thrown out because she has been outspoken in complaining about the management of the cooperative association.

Plaintiff filed a complaint in the Law Division against the Association; Faltico, both as an officer and a director of the Association; and Howell Management Company, the managing entity for the cooperative. Plaintiff also named as defendants three other officers and directors: James Howe, Lynn Howell, and Warren Howell.

The complaint alleged that defendants wrongfully entered plaintiff's storage bin and removed her belongings, either willfully or at least negligently. Plaintiff sought compensation for her items that had been discarded or damaged. In a second count, plaintiff sought damages for the emotional distress that defendants had caused her through their alleged retaliatory conduct.

After limited discovery was completed, defendants moved for partial summary judgment, which subsequently was treated by the trial court as a motion to dismiss plaintiff's claims in their entirety. Upon hearing ...


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