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Smith v. Kinley

Superior Court of New Jersey, Appellate Division

July 11, 2013

J. PAUL SMITH, Plaintiff-Respondent,
v.
HELEN B. KINLEY, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 12, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C-48-10.

Robert J. Hensler, attorney for appellant.

Steven J. Richardson, attorney for respondent.

Before Judges Messano and Kennedy.

PER CURIAM

Defendant appeals from summary judgment entered in favor of plaintiff on March 14, 2012, declaring that an earlier judgment defendant had obtained establishing the metes and bounds of her property in Deptford Township to be "null and void in its entirety and of no effect against plaintiff[, ]" an adjoining landowner; and also declaring that plaintiff is entitled to the "quiet and peaceful possession" of his property, described by a metes and bounds description that, in effect, reduces the frontage of defendant's claimed property line along Wenonah Avenue[1] by approximately ten feet. Defendant argues that "genuine issue[s] of material fact" existed which warranted denial of summary judgment. We agree and reverse the grant of summary judgment for plaintiff and remand for further proceedings consistent with this opinion.

I.

In reviewing a grant of summary judgment, we apply the same standard as the motion judge. EMC Mortgage Corp. v. Chaudhri, 400 N.J.Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Alt. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230, (App. Div.), certif. denied, 189 N.J. 104 (2006).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J.Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on the issues of law, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).

What follows is a brief statement of facts, derived from the record and viewed in a light most favorable to defendant.[2] In April 1985, defendant purchased from Deptford Township a piece of property designated as Block 561, Lot 13, on the municipal tax map. The deed contained no metes and bounds description, and merely recited that it was the same land obtained by the municipality "by final decree of foreclosure . . . recorded May 26, 1976 in Book 1202, page 1105 in the ...


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