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Boyan v. Orchards at Holmdel Condominium Association

October 13, 2010


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-403-04.

Per curiam.


Argued June 1, 2010

Before Judges R. B. Coleman and Coburn.

In this personal injury action, plaintiff Laura A. Boyan appeals from a judgment of no cause for action based on a jury verdict in favor of defendants The Orchards at Holmdel Condominium Association, Inc., Wentworth Property Management, Karen Lewandoski, Joann Cicolello, Elizabeth Morris and Eleanor Murphy*fn1 (collectively the Orchards). We affirm.

Plaintiff was the owner of a property on Primrose Court in the Orchards at Holmdel Condominium development. The development consists of two sections. The plaintiff lived in the second section. In 2000, the Orchards decided to replace the wooden enclosure fences in the first section with vinyl (PVC) fencing. Such fences did not exist in the second section, except on the plaintiff's property.

Upon learning that the Orchards only intended to replace the fences in the first section, plaintiff contacted Donna Barbour of Wentworth Property Management to request that her fence be replaced as well. Thereafter, Barbour spoke with Karen Lewandoski Fong, a member of the Orchards' board of directors, who at the time was unaware that any property in the second section had a fence. After further consideration of whether the fence was the Orchards' responsibility, plaintiff was informed she could come to the next meeting of the board of directors to discuss the matter. Ultimately, the Orchards determined that it would treat the fence as a common element and exercise responsibility.

At the next quarterly board meeting in December 2002, however, there were not enough board members in attendance to constitute a quorum; thus, no business could be transacted. Plaintiff was present at that meeting, having entered the meeting room carrying a glass of wine in one hand and a carafe of wine in the other. According to Fong, plaintiff appeared intoxicated. Although plaintiff was informed no decision could be made on that date due to the lack of a quorum, plaintiff acted belligerently and repeatedly asserted her demands for a new fence. At one point, plaintiff threatened "[b]y the time I'm finished with you, everyone on Primrose will have a new fence." As a result of this event, the board determined that all communications with plaintiff should be through counsel.

After considering the difference between the cost of wood ($1,680) and vinyl ($2,840), the board approved a new wooden fence for plaintiff; however, when the fencing contractor attempted to replace plaintiff's fence, plaintiff seemed annoyed or upset or agitated. Plaintiff threatened the contractor with suit if he proceeded to install the wooden fence; so, the contractor told the property manager to let him know how to proceed. In the meantime, installation was suspended.

Then, on the morning of August 8, 2003, plaintiff was planning to go on a bike ride with a colleague, Dr. Jay Kartagener. Prior to Kartagener's arrival, plaintiff walked her dog. Plaintiff stated that as the dog sniffed around her property, it became spooked and "bolted" towards the fence, and dislodged a board from the fence. Plaintiff testified she "just saw stars." She felt "just a white flash of pain," and the next thing she remembered was Kartagener standing over her, calling her name and the police were there.

Plaintiff was observed to have a "non-raised, non-tender to palpation red line, eyebrow to hairline just left of the mid forehead." In addition to this red line, plaintiff stated that, as a result of the accident, she experienced pain in her head, neck, lower back and left leg. She also suffered from vertigo. For these conditions, plaintiff received treatment which included physical therapy and a spinal epidural. Plaintiff also consulted with Dr. Michael Lospinuso, an orthopedic surgeon, who explained that plaintiff had a spinal condition called spondylolisthesis that was asymptomatic until awakened by the accident. Plaintiff alleges these conditions severely affected her ability to work and her quality of life.

On January 28, 2004, plaintiff filed a complaint against defendants in the Law Division, alleging negligence and breach of fiduciary duty. Defendants answered, denying the claims asserted. Following discovery, trial was held before Judge Waldman and a jury over the course of thirteen days in February 2009. The jury returned a verdict for the defendants, finding neither negligence nor breach of fiduciary duties. Plaintiff moved for a new trial, but the court denied that motion. This appeal ensued.

On appeal, plaintiff contends she was denied a fair trial because the jury was permitted to hear about her excessive alcohol consumption and because defense counsel suggested throughout the trial that there existed hidden proofs bearing on the veracity of plaintiff's claims and because the trial judge failed to give a sua sponte limiting ...

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