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Defalco Instant Towing, Inc. v. City of Summit

July 16, 2010

DEFALCO INSTANT TOWING, INC. AND NORLIN CARRILLO, A TAXPAYER, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
CITY OF SUMMIT, DEFENDANT-RESPONDENT, AND BROOKSIDE FRIENDLY SERVICE, INC., DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND SUMMIT FORGE BODY WORKS, INC., DEFENDANT-RESPONDENT, AND BENHAM'S GARAGE, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1698-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2010

Before Judges Fuentes, Gilroy and Simonelli.

In this action in lieu of prerogative writs challenging a municipal towing ordinance, plaintiffs DeFalco Instant Towing, Inc. and Norlin Carillo (collectively "DeFalco") appeal from the January 5, 2009 Law Division orders denying their motion for summary judgment, and granting the cross-motion for summary judgment filed by defendant City of Summit (City) dismissing the amended complaint with prejudice. Defendant Brookside Friendly Service, Inc. (Brookside) cross-appeals from the March 29, 2008 denial of its motion to dismiss and for counsel fees, and from the January 5, 2009 order denying the same relief.

Because we conclude that DeFalco's claims are time-barred, we affirm the denial of its summary judgment motion and the grant of the City's summary judgment motion. We also affirm the denial of Brookside's motions to dismiss and for counsel fees.

I.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motions, viewed in a light most favorable to DeFalco. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On April 20, 1999, the City's Common Council (Council) adopted a municipal ordinance regulating the appointment and licensing of operators for the towing of damaged, disabled, abandoned and impounded vehicles when requested by the Summit Police Department (the 1999 ordinance). The 1999 ordinance contains various requirements to become a licensed tow operator, including the following:

D. Minimum Storage Requirements.

(1) Every Tow Operator shall maintain an inside building or outside-secured storage area meeting the following requirements:

b. The location of the storage area shall be within the limits of the City.

In February of 2003, DeFalco submitted an application for a tow operator's license. On February 27, 2003, the City denied the application, in part, because DeFalco did not maintain an in-city storage facility, as required by ordinance's minimum storage requirements. DeFalco did not challenge the denial or the in-city storage facility requirement.

In September 2005, DeFalco prevailed in its action against the Borough of New Providence, challenging the validity of an amended towing ordinance, which gave towing preference to tow operators who maintained a business in the Borough. See DeFalco Instant Towing, Inc. v. Borough of New Providence, 380 N.J. Super. 152 (App. Div. 2005).

On December 19, 2006, the Council considered proposed amendments to the 1999 ordinance, which did not include amending the in-city storage facility requirement. DeFalco's attorney appeared at a Council meeting on a January 30, 2007, expressed concern about the in-city storage facility requirement, and asked the Council to reconsider that restriction. On January 30, 2007, the Council adopted an amended ordinance, which did not repeal the 1999 ordinance or amend the in-city storage facility requirement (the 2007 amended ordinance). The 2007 amended ordinance became effective February 3, 2007.

On February 22, 2007, DeFalco filed another application for a tow operator's license. On March 30, 2007, the City denied the application because DeFalco did ...


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