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Danny Diemerit and Melody Saiz v. Thomas Deloy and Donna Deloy

March 20, 2012

DANNY DIEMERIT AND MELODY SAIZ, PLAINTIFFS-RESPONDENTS,
v.
THOMAS DELOY AND DONNA DELOY, HUSBAND AND WIFE, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
TOWNSHIP OF LYNDHURST, THIRD-PARTY DEFENDANT/ APPELLANT, AND MARK SADONIS, CONSTRUCTION OFFICIAL, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket Nos. DC-028303-10 and DC-028307-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 28, 2012 -

Before Judge Messano and Espinosa.

The Township of Lyndhurst (Lyndhurst) appeals from the judgment entered against it in favor of plaintiffs Danny Diemerit and Melody Saiz in the amounts of $5243.20 and $6094.20, respectively, and the denial of Lyndhurst's subsequent motion for reconsideration. We reverse.

The matter has a tortured procedural history. In 2006, Lyndhurst cited defendants Thomas and Donna Deloy (the Deloys) for illegally using their two-family residences at 241 and 243 Newark Avenue as three-family dwellings. Lyndhurst and the Deloys settled the matter in July 2009.

Pursuant to its terms, the settlement required the Deloys to "remediate all violations," in return for which the summonses were conditionally dismissed. "[U]pon full and total remediation," the summonses would be dismissed with prejudice. However, if Lyndhurst or its construction code official determined the Deloys failed to comply, the summonses would be reinstated.

In May 2010, Lyndhurst apparently became aware that the Deloys leased the allegedly illegal apartments to plaintiffs.

Lyndhurst issued two new summonses. In August 2010, Lyndhurst issued another summons alleging an illegal apartment in property owned by the Deloys at 242A Orient Way. These three summonses, together with those issued in 2006 which were reinstated, were transferred to the Wood Ridge municipal court.*fn1

In September 2010, plaintiffs filed separate complaints against the Deloys alleging they were owed relocation costs, pursuant to N.J.S.A. 2A:18-61.1h, and further alleging the Deloys failed to return their security deposits.*fn2 Lyndhurst was not named as a defendant and was not served with the complaints. Since the housing violations were still pending in the municipal court, Lyndhurst moved on November 3 to consolidate and intervene in both actions as a plaintiff, with the right to prosecute the code violations against the Deloys.

In the interim, in late October 2010, the Deloys filed answers to plaintiffs' complaints and asserted third-party complaints against Lyndhurst. The relief sought by the Deloys against Lyndhurst was a "declaration as to the legality of the[] units." On November 18, the judge entered an order consolidating plaintiffs' complaints and permitting Lyndhurst to "intervene . . . as plaintiff." On the same day, Lyndhurst filed answers to the Deloys' third-party complaints.

The five summons complaints previously forwarded to the Superior Court were administratively returned to the municipal court. We are advised those matters were tried on March 7, 2011, although we have not been advised of the outcome.

Meanwhile, on February 17, 2011, plaintiffs' consolidated complaints were called to trial in the Special Civil Part. What transpired can only be characterized as confusing.

Counsel for Lyndhurst believed his client was "dismissed out of the case" because the summonses were returned to the municipal court, but he could produce no order to that effect. The Deloys' counsel believed Lyndhurst "ha[d] no affirmative claims, cross claims, counter claims, so [it is] here only . . . as a third party defendant." When the judge suggested that the Deloys dismiss their third-party complaint without prejudice, defense counsel objected. After advising Lyndhurst's ...


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