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State of New Jersey, Bureau of Housing Inspection v. Edward J. Giermanski

July 13, 2012

STATE OF NEW JERSEY, BUREAU OF HOUSING INSPECTION, PLAINTIFF-RESPONDENT,
v.
EDWARD J. GIERMANSKI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. DJ-270451-2009.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 9, 2011

Before Judges Simonelli and Hayden.

Defendant Edward J. Giermanski appeals from the November 19, 2010 Law Division order denying his Rule 4:50-1 motion to vacate a docketed judgment for $18,625 in civil administrative penalties and fees as the result of violations found during inspections of his property. Having considered defendant's contentions in light of the applicable law, we affirm.

I.

We discern the following facts from the record. From 1996 to 2005, defendant owned a thirty-unit apartment building in Paterson. On August 23, 1995, plaintiff, the Bureau of Housing Inspection (the Bureau), conducted a cyclical inspection of defendant's property that disclosed numerous violations of the Hotel and Multiple Dwelling Law (Law), N.J.S.A. 55:13A-1 to -28, which were set forth in an inspection report issued on March 25, 1999. The Bureau ordered defendant to abate the violations by May 25, 1999.

The Bureau conducted a reinspection of the premises on August 13, 1999, which revealed that plaintiff had not fixed the original violations. Consequently, on October 4, 1999, the Bureau issued a Notice of Statutory Violation and Order to Pay Penalty (Penalty Notice) in the amount of $3,875. The Penalty Notice, which defendant acknowledged receiving, also notified defendant that, within fifteen days of receipt of the Notice, he could request a hearing at the Office of Administrative Law (OAL) to contest the penalties. Further, the Penalty Notice stated in bold print, "The penalty hereby assessed is in addition to, not in lieu of, all penalties previously assessed."

On March 28, 2000, the Bureau conducted its second reinspection, which revealed that defendant still had not fixed all of the original violations. As a result, on October 20, 2000, the Bureau issued a re-inspection fee of $560, and on October 27, 2000, it issued a Penalty Notice for $14,500 for continuing violations. This Penalty Notice, which defendant also acknowledged receiving, contained language identical to the previous Penalty Notice about the right to request a hearing at the OAL.

On August 31, 2000, the Bureau conducted its third reinspection, and three months later issued a certification, known as a "green card," which provided that the building was currently in compliance with the Law. In January 2001, the Bureau issued another order to defendant to pay the unpaid $560 inspection fee and to pay a $280 penalty for failing to timely pay the inspection fee.

Defendant failed to pay the assessed administrative penalties and fees resulting from the cyclical inspection period that ended March 2000. On July 13, 2001 and again on July 28, 2009, the Bureau served defendant with notice that, pursuant to N.J.S.A. 55:13A-19, the Bureau would file for a docketed judgment. On November 7, 2009, the Bureau sent to the Clerk of the Superior Court a request to file the administrative penalty order for $18,625*fn1 plus interest as a docketed judgment against defendant. Shortly thereafter, defendant received notice that the judgment had been docketed but did not challenge the docketing at that time.

Separate from the above cyclical inspections of defendant's building, the Bureau had also conducted an addendum inspection, which generally occurs in response to complaints of tenants or local law enforcement authorities, or when new violations are discovered during re-inspection. The Bureau, after imposing penalties in the amount of $20,500 as a result of newly discovered violations,*fn2 brought a Law Division action to enforce the Law and for penalties. At the court hearing on the addendum violations on September 17, 1999, the parties reached a settlement, and the Bureau voluntarily dismissed the civil action with prejudice.

In October 2010, defendant, after his tax refund was intercepted, filed a Rule 4:50-1 motion to vacate the docketed judgment. At the motion hearing, defendant argued that he had settled all outstanding violations in September 1999, and the Bureau's issuance of the "green card" showed that he was in full compliance two years later. He further argued that the penalties were barred by the statute of limitations and the equitable doctrines of waiver, laches or estoppel. The State submitted that the settlement had been for the addendum inspection, and could not logically have been applied to the administrative penalties covered by the docketed judgment because they had been imposed after the settlement date. The State also contended that the ten-year statute, not a two-year statute, applied.

Judge Innes found that because the penalties were assessed after the September 17, 1999 court date, the settlement did not include the penalties addressed in the docketed judgment at issue. He concluded that the Bureau's judgment was not barred by the statute of limitations or waiver, estoppel or laches, because the State brought the action within the requisite ten-year time period. Moreover, he observed that the docketing of the judgment was a mere ministerial act in which defendant's substantive claims could not have been raised. He found that defendant failed to seek a timely appeal of any of the Penalty Notices through the OAL where he could have raised the 1999 settlement agreement. Under ...


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