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Felumero v. AHB Development Corp.

September 2, 2010


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4753-07.

Per curiam.


Argued May 19, 2010

Before Judges Fisher and Espinosa.

Plaintiff appeals from the denial of her motion for summary judgment and an order that granted summary judgment to defendants AHB Development Corporation (AHB) and Howard C. Birdsall, dismissing her claim under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -195 (CFA). We affirm.

In July 2003, defendant AHB sought approval from the Planning Board of the Borough of South Belmar (now Lake Como) for a minor subdivision that resulted in the creation of two residential lots. A result of the planned subdivision is that a house on the lot ultimately purchased by plaintiff would not comply with the Borough's side yard setback requirements. The Board found that "The applicant is demolishing part of the dwelling unit to make the property more in compliance with the zoning ordinances of the Borough" and conditioned its approval of the subdivision on "a dividing line being at least 3.1 feet from the dwelling unit. . . . In addition, a portion of the dwelling is to be removed to eliminate the need for any further variances but there will be an addition on the rear of the dwelling unit." AHB and Birdsall, its corporate agent, admittedly never removed a portion of the existing dwelling.

A survey of the property was attached to the deed that was recorded for the subdivision and noted that "a portion of dwelling 1.35' to be removed to satisfy 3.0' sideyard setback." The lot was conveyed to defendant Frank Young, who later conveyed the property to defendant William Young. The recorded deed continued to have as an attachment a copy of the survey that indicated that 1.35' of the property was "to be removed to satisfy the 3.0' sideyard setback."

Although the portion of the dwelling referred to was not removed, William Young obtained a certificate of occupancy from the Borough and also obtained a building permit from the Borough allowing him to put a new roof on the home.

Plaintiff Nerina Felumero purchased the property from William Young in February 2006 for $435,000. The deed referenced the prior transfers. Plaintiff admitted that she had never met with or received any kind of communication from Birdsall or any other representative of AHB. Plaintiff admitted that her closing file contained a survey of the property and believed that she used the same survey that had been prepared for the transfer to William Young. However, when she was shown the survey at her deposition, plaintiff denied having seen the survey before.

In 2006, the Borough refused to issue a certificate of occupancy to Felumero because the "portion of the dwelling, which was supposed to have been demolished by the original owner as required by the Planning Board resolution, had in fact not been removed which created a side yard variance that had specifically not been granted." Plaintiff received an estimate of $35,000 to remove this portion of the structure and repair the damage that it would cause.

Plaintiff initiated this litigation in October 2007.*fn2

Plaintiff filed a motion for summary judgment as to liability on her consumer fraud and equitable fraud claims and withdrew her equitable fraud claim against AHB in her reply brief. The trial court denied plaintiff's motion in September 2008. AHB and Birdsall later filed a motion for summary judgment*fn3 to dismiss the complaint with prejudice that was granted by the trial court.

In this appeal, plaintiff argues that the trial court erred in denying her motion for summary judgment. She also alleges error in the court's decision to grant summary judgment to defendants AHB and Birdsall but limits her argument to the dismissal of her CFA claim. After carefully reviewing the record, briefs and arguments of counsel, we are satisfied that these arguments lack merit.

When reviewing a grant of summary judgment, we employ the same standards used by the trial court, which grants summary judgment if the record shows that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide whether the ...

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