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Barbara J. Hertz v. Michael Nowacki

July 26, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-55-99.

Per curiam.


Argued December 12, 2011

Before Judges Grall, Alvarez and Skillman.

In April and August 2004, Judge MacKenzie entered orders declaring plaintiff Barbara J. Hertz's rights in an access easement that crosses separate properties then owned by Michael and Ruth Nowacki, John and Caroline McLoughlin and Kenneth and Lynne Travers. On a prior appeal challenging the final orders, we affirmed Judge MacKenzie's dismissal of plaintiff's claims against defendant Borough of Lincoln Park based on an allegation that a portion of the easement was a public road and rejected her challenges to the width and use of the easement as authorized by the judge. Hertz v. Nowacki, No. A-2305-04 (App. Div. Oct. 30, 2006) (slip op. at 1-2), certif. denied, 189 N.J. 650 (2007).

In April 2010, plaintiff filed a post-judgment motion in the initial action to enforce the orders against various parties: two of the individual defendants in the initial action; the successors in interest of the McLoughlin defendants, Seigfried Feury and Laura Oliverio; and Lincoln Park. This is plaintiff's appeal from orders entered by another judge denying her motion to enforce and her subsequent motion for reconsideration. We affirm in part and reverse in part. In our prior opinion, we described plaintiff's route of access to the fifteen-acre lot she owns and uses for agriculture as follows: "The dirt path leading to plaintiff's lot is an extension of a roadway that defendant Borough of Lincoln Park paved around 1958 and has maintained since that time. Both the paved roadway and the dirt path are referred to as Orchard Drive." Id. at 2. In the initial action she sought "a declaration that the dirt path is a public road and an order compelling Lincoln Park to grade, gravel, upgrade, maintain and properly improve the portion of Orchard Drive leading up to her premises to 'a condition equal to the existing improved portion of Orchard Drive.' In the alternative, plaintiff sought a declaration that she has a private easement over the individual defendants' lots along the route of the dirt path." Ibid. Following discovery, Judge MacKenzie granted Lincoln Park summary judgment on the ground that plaintiff "had not established that the dirt path had ever been used as a public road or that Lincoln Park had accepted a dedication of the path as a public road." Id. at 3. On that ground, the judge dismissed the municipality from the action. Ibid.

Subsequently, on cross-motions for summary judgment filed by the individual defendants and plaintiff, Judge MacKenzie entered orders defining plaintiff's rights.

On April 30, 2004, the judge ordered:

Plaintiff Barbara Hertz has the right to use the right of way now known as Orchard Drive for ingress and egress to her property consistent with modern uses. Further, Barbara Hertz will be responsible for any maintenance and improvements necessary in order to meet the minimum standards as set forth within the Borough of Lincoln Park's ordinance[s] concerning driveways.

On August 16, 2004, Judge MacKenzie supplemented and modified his prior articulation of the parties' respective rights and responsibilities:

1. The implied easement granted to Plaintiff for access to her property shall include the right to traverse over the full extent of the existing paved portion of the private road, which extends beyond Orchard Drive.

2. The implied easement granted to the Plaintff shall also include the use of the unpaved portion of the unimproved path, which extends past the paved portion over the properties of McLoughlin and Travers.

3. The [c]court holds that Plaintiff may improve a 14-foot-driveway within the heretofore unpaved route respecting constraints of "mature" trees and property improvements and located with the centerline as close to the Defendants' common boundary lines.

4. In accordance with the [c]court's prior ruling and the modifications made herein, Plaintiff is entitled to improve the dirt path to the condition of a 14-foot-driveway capable of accommodating a modern motor vehicle including an emergency vehicle.

5. Plaintiff shall be allowed to apply for driveway construction permits and shall be responsible for any and all costs associated with any such permits or improvement of the area at issue.

6. Plaintiff shall be responsible for providing to Defendants a survey and staking of the area to be improved.

7. Plaintiff shall provide Defendants with no less that twenty (20) days advanced notice, in writing, of her intentions to commence work to improve the dirt path together with a copy of the survey as contemplated in Paragraph (6) above and a copy of applications and any other supporting plans or documents.

8. The [c]court further reiterates that consistent with its prior ruling the Plaintiff has failed to demonstrate that the existing private road and dirt path constitute a public road. Plaintiff shall be subject to sanctions if this issue is brought before the [c]court again.

There is no dispute that plaintiff, at the time she filed the post-judgment motion in April 2010, had not obtained the survey required by paragraph 6.

In her notice of motion, plaintiff requested the relief specified in the proposed form of Order for compensation and relief due to Defendants Michael Nowacki, Sr.; Kenneth & Lynne Travers (H/W); Siegfried Feury & Laura Oliverio (co-owners) interference with Plaintiff's established rights to unrestricted use of the paved roadway and unpaved continuation, beyond the pavement leading to the Plaintiff's farm property, and against the Borough of Lincoln Park to enjoin the Borough from attempting to enforce non-existent violations against the Plaintiff's established rights to use the paved private roadway and unpaved continuation beyond the pavement leading to the Plaintiff's farm property, including the route along the southern boundary of property owned by Lincoln Park, seeking removal of felled trees and an abandoned vehicle obstructing the Plaintiff from accessing her east field.

Plaintiff has now provided at the court's request, through the clerk of the court, the proposed order setting forth the relief she sought, but the question whether the court erred in dismissing her motion to enforce in its entirety depends on whether plaintiff's moving papers established a prima facie case of a violation of the orders she sought to enforce, requiring a hearing to resolve any disputed facts, or an order in her favor in the absence of a factual dispute. See Hand v. Hand, 391 N.J. Super. 102, 106 (App. Div. 2007) (noting that, where the need for a plenary hearing is not apparent, the threshold issue is whether the movant has made a prima facie showing that it is); see also Loigman v. Twp. Comm. of Twp. of Middletown, 308 N.J. Super. 500, 503-04 (App. Div. 1998) (reversing a trial court's denial of an enforcement motion because a hearing was required to address the alleged violations of a prior judgment and response, if any, to those allegations).

In support of her motion, plaintiff submitted a sworn affidavit that includes 48 numbered paragraphs. The first 6 provide background information on the prior litigation and assertions about how her easement had been blocked over the years. Her allegations of grievances suffered since entry of the order are set forth in the remaining paragraphs. Since a number of the paragraphs contain allegations regarding multiple individuals and forms of conduct, some paragraphs are referenced more than once in the discussion below. Plaintiff's allegations are as follows:

7. Since the Chancery Court determined my rights, the paved roadway over Orchard Drive is where my car has been repeatedly vandalized.

8. My own mailbox on the neighborhood "mailbox stand" has been repeatedly vandalized, torn off and crushed, and the neighbor (defendants) have placed multiple ...

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