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Bielecki v. Executive Property Management


November 18, 2010


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. SC-001049-08.

Per curiam.


Submitted November 1, 2010

Before Judges Sabatino and Alvarez.

This case arises out of a management company's removal of a car from a condominium parking lot, after the car owner failed to move his vehicle despite being asked several times to do so. Plaintiff Matthew C. Bielecki, the car owner, filed a complaint in the Special Civil Part against the management company, defendant Executive Property Management, alleging that his car had been improperly towed at defendant's behest.*fn1

Following a non-jury trial at which defendant's property manager and plaintiff testified, the Special Civil Part judge dismissed the complaint. The judge's decision was largely based on his credibility findings upon assessing the testimony of plaintiff about the events at issue, and the competing testimony of defendant's manager. The judge thereafter denied plaintiff's motion for reconsideration.

Plaintiff now appeals. Applying our limited standard of review of a trial court's factual findings, we affirm.

We briefly summarize the chronology of the events that are pertinent to the issues on appeal. Defendant is the management company for a condominium complex in Franklin Park known as Queens Square Condominium Association. As part of its functions, defendant is responsible for the common areas of the condominium, including the surface parking lots. Defendant oversees the removal of vehicles that are improperly parked on the premises or which appear to have been abandoned. The premises have 175 parking spaces, which include two spaces for each unit owner, plus additional spaces for visitors.

The condominium association has a legitimate interest in keeping its parking areas free of vehicles that appear to be abandoned, stolen, parked improperly, or inoperable. As noted in the condominium's rules and regulations, "[a]bandoned vehicles are both nuisances and unsightly additions to our parking lots which, as immovable objects, complicate snow removal, visually degrade the value of our community and are sources for enormous potential liability to the [condominium] [a]ssociation." These legitimate concerns are undisputed.

The rules and regulations further provide that "[n]o . . . inoperable, unregistered, or commercial vehicles (with the exception of vans and pick-up trucks) are permitted on the common elements by any [unit] owner." To implement that prohibition, the rules and regulations confer upon management "the right to arrange for the removal of said vehicles at the owner[']s expense."

Plaintiff Matthew C. Bielecki is a unit owner in the condominium complex. At the times relevant to this litigation, plaintiff was also the owner of a 1988 BMW 735IL sedan. The record shows that plaintiff left his BMW in the condominium parking lot for several months without moving it. By plaintiff's own admission, the BMW had a cracked windshield and an expired inspection sticker. Plaintiff had not driven the BMW for some time, apparently because he was recovering from back surgery and also because he was taking care of his ailing parents in South Carolina. In addition, defendant's manager*fn2 ,

Joseph Farinelli, perceived that the BMW had been left in a visitor's space, was leaking oil, and "looked like it had been abandoned."

At Farinelli's direction, a yellow notice placard was placed on the BMW's windshield in January 2008. The placard stated that the vehicle was "subject to IMMEDIATE TOWING, IMPOUNDMENT, and/or REMOVAL at the OWNER[']S EXPENSE," because it was "[n]ot permitted within the community and must be removed." A second such notice was left on the car in February 2008.

In his trial testimony, plaintiff acknowledged receiving both yellow placards notifying him of the need to move his car. In fact, plaintiff's receipt of the notices prompted him to call defendant's offices and ask for more time. According to Farinelli, plaintiff was orally granted an extension of time of about fourteen to thirty days, but he still failed to move his car.

As the situation persisted, defendant undertook more active steps to address it. According to Farinelli, he sent a letter to plaintiff on February 21, 2008, formally advising plaintiff that his BMW was parked in violation of the condominium rules and regulations. Farinelli testified that the letter was sent to plaintiff at the street address of his condominium unit.

A copy of the February 21, 2008 letter was admitted into evidence at trial. The letter stated in relevant part that "[d]uring a recent site inspection, it was noted that [the BMW] [had] a cracked windshield and [was] not properly registered[,]" in violation of the condominium rules and regulations. The letter directed plaintiff to "correct the violation within ten days[,]" and invited him to "request a hearing in writing" if he disputed the violation. Plaintiff made no such written request for a hearing.

According to Farinelli's testimony, a second notice-of-violation letter was sent to plaintiff on March 24, 2008. The letter urged plaintiff to "correct this violation by April 7, 2008 or the vehicle will be towed." (Emphasis in original). The second letter reiterated that plaintiff could "request a hearing in writing" if he disputed the violation. No such written request was made, and the BMW remained in place.

In contrast to Farinelli's unwavering account, plaintiff expressed uncertainty at trial about whether he received the notice-of-violation letters. When asked by the trial judge whether he received the February 21, 2008 letter, in particular, plaintiff testified:

A. I don't recall. But every time I got a notice or something I did call in. I'm not saying -- I'm not denying [that] I did not receive it [the letter]. I just don't know it.

On appeal, however, plaintiff has changed his position, asserting several times in his brief that he never received the two letters, and that Farinelli lied under oath when he claimed to have sent them.

Ultimately, defendant had the BMW towed from the premises on April 17, 2008. As of the time of trial, the vehicle apparently had not been reclaimed by plaintiff from the towing company.*fn3

After considering these proofs, the Special Civil Part judge who presided over the trial, Judge Melvin L. Gelade, concluded that defendant was justified in arranging to have the BMW towed off the premises. The judge was satisfied that the BMW had "an expired [inspection] sticker and a broken windshield," and that it was "clearly" left on the site in violation of the condominium rules and regulations.

The judge's oral opinion specifically credited Farinelli's testimony that the two yellow placards had been left on the BMW's windshield, in addition to the two certified letters that were sent in February and in March of 2008. Because plaintiff failed to take timely remedial action or request a hearing, the judge determined that defendant had acted "within its rights" in removing the BMW. Consequently, the judge dismissed plaintiff's complaint.

In his appeal, plaintiff variously contends that his BMW had not been abandoned, that it was not parked in a visitor's space, that it was not leaking oil, that it was registered even though it had failed inspection, and that the vehicle was not left in a common area in violation of any of the condominium rules and regulations. He therefore contends that Judge Gelade erred in finding that defendant was authorized to tow his car. Plaintiff further argues that defendant was precluded from taking corrective action because it deviated from certain procedures set forth in the condominium's rules and regulations for the removal of abandoned vehicles.

Our scope of review of this final judgment entered by the Special Civil Part is exceedingly narrow. Because the trial judge was the fact-finder and because he had the opportunity to assess the credibility and demeanor of the witnesses first-hand, we defer to the judge's factual determinations, so long as they are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Our "appellate review does not consist of weighing evidence anew and making independent factual findings; rather, our function is to determine whether there is adequate evidence to support the judgment rendered at trial." Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999). If the trial court's findings meet this benchmark, our "task is complete and [we] should not disturb the result," even if we "might have reached a different conclusion were [we] the trial tribunal." Ibid. (internal citations and quotations omitted).

We have fully considered plaintiff's arguments in light of these well-settled, deferential standards of review. Having done so, we affirm the Special Civil Part's judgment, essentially for the reasons stated in Judge Gelade's bench ruling of June 3, 2008. We add only a few comments.

Although plaintiff now argues that his car was not abandoned or otherwise parked in violation of the condominium rules and regulations, he already conceded in his sworn testimony at trial that the car was indeed in violation. When he was asked by the court, plaintiff specifically disavowed any challenge to the violation itself:

Q: Well, do you deny that this [the situation with the BMW] was a violation of the rules and regulations?

A: Yes. It [was] a violation. That's not what I'm disputing. I'm disputing on [sic] the way Executive Property Management handled it. You know, I do have -- I do have some rights there and I did follow them in [sic] as best as I knew.

[Emphasis added.]

Having made this unqualified admission at trial, plaintiff is barred from now asserting a contrary position. Brett v. Great American Recreation, 144 N.J. 479, 503-04 (1996). In any event, even in the absence of plaintiff's concession at trial, there is ample and substantial credible evidence in the record to sustain the court's finding that the BMW was parked in violation of the condominium rules and regulations.

We also reject plaintiff's procedural arguments. It is undisputed that plaintiff had actual notice, through his admitted receipt of the two yellow placards, that the condominium's management had determined that his car was in violation of the rules and had instructed him to move it.

Despite such actual notice, and the extension of time that was granted at his request, plaintiff took no action.

Plaintiff contends that Farinelli deviated in certain respects from the procedures in the condominium's rules and regulations. For example, Farinelli ascertained plaintiff's mailing address and his status as the BMW's owner from condominium records, rather than checking with the police department or the State motor vehicle agency.*fn4 That is of no moment, nor were any of the other deviations claimed by plaintiff from the procedures. The alleged deviations were minor and immaterial, given that plaintiff admittedly had actual notice of the violation and that he nonetheless failed to move his car after repeated requests.

Moreover, we do not second-guess the trial court's specific finding that Farinelli did, in fact, duly send the two notice-of-violation letters to plaintiff. We do so particularly in light of plaintiff's failure to deny his receipt of those letters when he was asked about it under oath at trial and in light of Farinelli's testimony that plaintiff had called acknowledging his receipt of the letters.

Plaintiff contends that defendant should have telephoned him before having his car towed. Although we understand why plaintiff would have liked to have been called before his car was finally removed, defendant had no legal obligation to do so, having already given him ample notice to rectify the problem himself.

Plaintiff's motion for reconsideration after the trial was appropriately denied by the trial judge. Plaintiff offered no new and relevant evidence that he could not have produced at the time of the trial, and he also failed to demonstrate that the court had plainly erred in its original decision. See R. 4:49-2; see also Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

We have carefully examined all of the remaining contentions raised by plaintiff, and conclude that they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We appreciate that plaintiff may well have been in difficult circumstances while caring for his ailing out-of-state parents and while recovering from his own back injuries. Nevertheless, it was incumbent upon him to move his car (or to have it moved by a third party) promptly, once he was instructed by the condominium's management to do so.


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