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Soliman v. Kushner Companies, Inc.

Superior Court of New Jersey, Appellate Division

October 17, 2013

PATRICIA SOLIMAN, PLAINTIFF-APPELLANT,
v.
THE KUSHNER COMPANIES, INC. A/K/A KUSHNER COMPANIES; WESTMINSTER MANAGEMENT, L.L.C.; CK BERGEN HOLDINGS, L.L.C. A/K/A CK BERGEN HOLDINGS; CK BERGEN ASSOCIATES, L.L.C. A/K/A CK BERGEN ASSOCIATES; KUSHNER PROPERTIES, INC.; WESTMINSTER MANAGEMENT, L.P.; ROUTE 208 ASSOCIATES, L.L.C.; PHIL CHAIKLIN; HIGH TECH INSTALLATIONS; AND HIGH TECH DEPOT, L.L.C., DEFENDANTS-RESPONDENTS. MICHELE F. AVRIN, PLAINTIFF-APPELLANT,
v.
THE KUSHNER COMPANIES, INC. A/K/A KUSHNER COMPANIES; WESTMINSTER MANAGEMENT, L.L.C.; CK BERGEN HOLDINGS, L.L.C. A/K/A CK BERGEN HOLDINGS; CK BERGEN ASSOCIATES, L.L.C. A/K/A CK BERGEN ASSOCIATES; KUSHNER PROPERTIES, INC.; WESTMINSTER MANAGEMENT, L.P.; ROUTE 208 ASSOCIATES, L.L.C.; PHIL CHAIKLIN; HIGH TECH INSTALLATIONS; AND HIGH TECH DEPOT, L.L.C., DEFENDANTS-RESPONDENTS. CAC (INFANT PLAINTIFF # 1) BY HER MOTHER MAC (PLAINTIFF # 2) AND MAC (PLAINTIFF # 2) INDIVIDUALLY;, AAC (INFANT PLAINTIFF # 3) AND AYC (INFANT PLAINTIFF # 4) BY THEIR MOTHER RLC (PLAINTIFF # 5) AND RLC (PLAINTIFF # 5) INDIVIDUALLY; TAK (INFANT PLAINTIFF # 6) BY HER FATHER TOK (PLAINTIFF # 7) AND TOK (PLAINTIFF # 7) INDIVIDUALLY; SG (INFANT PLAINTIFF #8) BY HIS MOTHER AG (PLAINTIFF # 9) AND AG (PLAINTIFF # 9 INDIVIDUALLY); DK (INFANT PLAINTIFF # 10) BY HER FATHER JK (PLAINTIFF # 11) AND JK (PLAINTIFF # 11) INDIVIDUALLY; DEL (INFANT PLAINTIFF # 12) AND TL (INFANT PLAINTIFF # 13) AND DAL (INFANT PLAINTIFF # 14) BY THEIR MOTHER DL (PLAINTIFF # 15) AND DL (PLAINTIFF # 15) INDIVIDUALLY; JG (INFANT PLAINTIFF # 16) BY HIS MOTHER JJ (PLAINTIFF # 17) AND JJ (PLAINTIFF # 17) INDIVIDUALLY; JL (INFANT PLAINTIFF # 18) AND TL (INFANT PLAINTIFF # 19) BY THEIR MOTHER GCL (PLAINTIFF # 20) AND GCL (PLAINTIFF # 20) INDIVIDUALLY; ST (INFANT PLAINTIFF # 21) AND AT (INFANT PLAINTIFF # 22) BY THEIR MOTHER LT (PLAINTIFF # 23) AND LT (PLAINTIFF # 23) INDIVIDUALLY; AY (INFANT PLAINTIFF # 24), AND LY (INFANT PLAINTIFF # 25) BY THEIR MOTHER WFY (PLAINTIFF # 26) AND WFY (PLAINTIFF # 26) INDIVIDUALLY; KRZ (INFANT PLAINTIFF # 27) BY HER MOTHER KZ (PLAINTIFF # 28) AND KZ (PLAINTIFF # 28) INDIVIDUALLY; BF (INFANT PLAINTIFF # 29) AND AF (INFANT PLAINTIFF #30) BY THEIR PARENTS RF (PLAINTIFF #31) AND MF (PLAINTIFF #32) AND RF (PLAINTIFF #31) AND MF (PLAINTIFF #32) EACH INDIVIDUALLY; AN (INFANT PLAINTIFF # 33) AND RN (INFANT PLAINTIFF # 34) BY IN (PLAINTIFF # 35) AND IN (PLAINTIFF # 35) INDIVIDUALLY; JJA (INFANT PLAINTIFF # 36) BY HER PARENTS JAJ (PLAINTIFF # 37) AND MC (PLAINTIFF # 38) AND JAJ (PLAINTIFF # 37) AND MC (PLAINTIFF # 38) INDIVIDUALLY; CB (PLAINTIFF # 39); YC (PLAINTIFF # 40); GE (PLAINTIFF # 41), EDI (PLAINTIFF #42); A.D. (PLAINTIFF # 43);, EDR (PLAINTIFF # 44); ADR (PLAINTIFF # 45); GF (PLAINTIFF # 46); SF (PLAINTIFF # 47); CL (PLAINTIFF # 48); AL (PLAINTIFF # 49); MMA (PLAINTIFF # 50); KBM (PLAINTIFF # 51); MMO (PLAINTIFF #52); KN (PLAINTIFF # 53); MP (PLAINTIFF # 54); IR (PLAINTIFF # 55); KS (PLAINTIFF # 56); CS (PLAINTIFF # 57); BS (PLAINTIFF # 58); LW (PLAINTIFF # 60); AND EF (PLAINTIFF # 60); PLAINTIFFS-APPELLANTS,
v.
THE KUSHNER COMPANIES, INC. A/K/A KUSHNER COMPANIES; WESTMINSTER MANAGEMENT, APPELLATE DIVISION. L.L.C.; CK BERGEN HOLDINGS, L.L.C. A/K/A CK BERGEN HOLDINGS; CK BERGEN ASSOCIATES, L.L.C. A/K/A CK BERGEN ASSOCIATES; KUSHNER PROPERTIES, INC.; WESTMINSTER MANAGEMENT, L.P.; ROUTE 208 ASSOCIATES, L.L.C.; PHIL CHAIKLIN; HIGH TECH INSTALLATIONS; AND HIGH TECH DEPOT, L.L.C., DEFENDANTS-RESPONDENTS. RICKY DIPILLA, MARY ELLEN PHELAN, PERRY DEATON, KENNETH THIMMEL, JONATHAN SCOTT STEPHENS, PHYLLIS RUBIN, VIVIANA A. WISSE, MARY PETRUCELLO, MIKE O'SULLIVAN, LAURA PHELAN, EDWARD ROBINSON AND WILLIAM NEWMAN, PLAINTIFFS,
v.
ROUTE 208 ASSOCIATES, LLC, THE KUSHNER COMPANIES, WESTMINSTER MANAGEMENT, LLC, CK BERGEN HOLDINGS, LLC, KUSHNER PROPERTIES, INC., WESTMINSTER MANAGEMENT, L.P., DEFENDANTS

Argued: May 16, 2012.

Approved for Publication October 17, 2013.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2581-08.

Gerald H. Baker argued the cause for appellants ( Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C., attorneys; Lawrence M. Simon and Mark J. Cintron, on the brief).

Derek A. Ondis argued the cause for respondents High Tech Installations, High Tech Depot, L.L.C., and Phil Chaiklin ( Romando, Zirulnik, Sherlock & DeMille, attorneys; Mr. Ondis, on the brief).

Stuart J. Polkowitz argued the cause for respondents The Kushner Companies, Inc., Westminster Management, L.L.C., CK Bergen Holdings, L.L.C., CK Bergen Associates, L.L.C., Kushner Properties, Inc, Westminster Management, L.P., and Route 208 Associates, L.L.C. ( Mautone & Horan, P.A., and Brach Eichler L.L.C., attorneys; James J. Horan and Mr. Polkowitz, of counsel and on the briefs).

Before Judges FUENTES, GRAVES, and HARRIS. The opinion of the court was delivered by FUENTES, P.J.A.D.

OPINION

Page 1218

[433 N.J.Super. 159] FUENTES, P.J.A.D.

These are four consolidated law suits brought by employees of tenants and members of their families, including minors, against the landlord and managers of this commercial office building, as well as a number of other companies responsible for installing and maintaining video monitoring and recording equipment intentionally concealed inside smoke detectors in four public bathrooms, two male and two female.[1]

Defendants claimed the cameras were positioned to monitor or focus only on the " common area" of the bathrooms, where the washbasins are located. Stated differently, defendants claim the cameras were not placed to monitor the toilet stalls and therefore did not invade or violate plaintiffs' expectation of privacy.

It is not disputed that the managers of the office building installed this surveillance equipment in 2003, ostensibly in response to complaints made by certain tenants of vandalism and damage to bathroom facilities. The scope and nature of the vandalism included both the area where the washbasins are located, [433 N.J.Super. 160] as well as the toilet areas. Specifically, defendants allege tenants complained the toilets in these bathrooms were overflowing and being rendered unusable by unknown individuals intentionally or negligently placing paper towels or other obstructions into the toilet bowls to block or impede the flow of water. According to defendants, they installed the video surveillance equipment and concealed the cameras inside the bathrooms' smoke detectors to deter this vandalism and gather evidence against the alleged vandals.

Although installed and made operational in 2003, defendants claimed the entire video surveillance equipment lay dormant and unused for four years. Defendants claimed the stealthy monitoring of the bathrooms began in 2007, and only functioned for three continuous days.

This monitoring operation came to an abrupt end only by sheer happenstance, when a tenant employee walked by a closet

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with a sign on the door that read: " Authorized Personnel Only." Although defendants intended the closet door to remain closed and locked at all times, that day the door was inadvertently left ajar. When the employee looked inside the closet, he discovered video monitors displaying a live video feed of the four bathrooms.

This employee immediately reported his discovery to the local police department. The responding police officers investigated the claim and confirmed the existence of the video surveillance operation, and disconnected the camera lenses concealed inside the smoke detectors. An investigator from the Bergen County Prosecutor's Office took custody of the computer equipment for further investigation. It is not disputed that law enforcement authorities decided not to file criminal charges against anyone connected with the surveillance operation.

In these consolidated civil complaints, plaintiffs allege intentional and negligent infliction of emotional distress, common law invasion of privacy, and invasion of privacy under N.J.S.A. 2A:58D-1(b). Plaintiffs seek common law compensatory damages, punitive damages under the Punitive Damages Act (PDA), [433 N.J.Super. 161] N.J.S.A. 2A:15-5.9 to -5.17, and statutory damages under N.J.S.A. 2A:58D-1(c). Plaintiffs argue the evidence permits a rational fact finder to infer that the camera lenses concealed inside the smoke detectors may have been positioned, at least part of the time, to monitor the toilet stalls -- areas of the bathrooms defendants conceded are private. However, even if this covert video surveillance operation was limited to the so-called common areas of the bathrooms, plaintiffs argue they still have a cognizable cause of action under these same theories of liability.

The Law Division granted defendants' motions for summary judgment and dismissed plaintiffs' cause of action as a matter of law. The motion judge accepted defendants' factual claims as to the nature and scope of the video surveillance operation, and found plaintiffs did not have a reasonable expectation of privacy in the areas of the bathrooms outside the toilet stalls where the wash basins are ordinarily located.

In this appeal, plaintiffs argue the motion judge erred in accepting defendants' claims concerning the nature and scope of the surveillance operation because, from the evidence presented, a rational jury could reject defendants' claim and find in favor of plaintiffs' factual contention that the scope of the surveillance included the toilet stalls. Independent of this material factual dispute, plaintiffs argue that the motion judge erred, as a matter of law, by concluding plaintiffs did not have a reasonable expectation of privacy in the areas of the bathrooms outside the toilet stalls where the washbasins are located.

We agree with plaintiffs' argument and reverse the trial court's order dismissing the counts in their complaints grounded on invasion of privacy. The trial court erred in dismissing plaintiffs' complaints as a matter of law. Under these circumstances, a rational jury could find defendants' actions violated plaintiffs' reasonable expectations of privacy. These material issues of fact cannot be resolved through summary judgment. We affirm, however, the court's dismissal of plaintiffs' claims based on intentional and negligent infliction of emotional distress.

[433 N.J.Super. 162] In our view, a rational jury could find that shielding the cameras from detection by placing them inside facially innocuous, yet ubiquitous safety devices, such as smoke detectors, is more suggestive of a sinister voyeuristic purpose than a good faith reasonable attempt at combating vandalism. This plausible conclusion by a

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jury is further supported by defendants' decision to disregard the suggestions made by the Fair Lawn Police Department to place a sign on the bathroom doors alerting all who entered that the bathroom's so-called " common areas" were monitored by video cameras.

However, even assuming a good faith motive, a rational jury could find that the approach adopted by defendants here is per se unreasonable because: (1) the clandestine nature of the surveillance operation negated the deterrent effect defendants allegedly sought to create; (2) acts of vandalism to bathrooms do not justify the installation of a covert video surveillance system to monitor inherently private areas like bathrooms; (3) although all areas of a bathroom are deemed private, bathrooms intended to be used exclusively by women and girls are inherently more susceptible to invasion of privacy claims. Plaintiffs can present evidence to a jury that women and girls utilize public bathrooms, including areas outside the toilet stalls, with the reasonable expectation that their private grooming activities will only be visible to fellow female users who may be present at the time; and (4) both men and women may have used the so-called quasi-public areas of the bathrooms to perform personal grooming or other private activities when no one else was visibly present that they would have otherwise refrained from performing even in the presence of members of their own gender.

Based on these plausible findings, plaintiffs may be entitled to compensatory relief under both common law principles of privacy and pursuant to the specific cause of action for invasion of privacy authorized by the Legislature under N.J.S.A. 2A:58D-1. Depending on whether the jury awards compensatory damages, plaintiffs have also presented sufficient evidence to preserve the right to [433 N.J.Super. 163] seek an award of punitive damages in a bifurcated proceeding as required under the PDA.

Because the trial court dismissed plaintiffs' cases as a matter of law, we review all facts in the light most favorable to plaintiffs, including any inferences that may be drawn from the evidence presented. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995); R. 4:46-2(c).

I

At all times relevant to this case plaintiffs Soliman and Avrin worked in an office building located on Route 208 in Fair Lawn. CaC plaintiffs were employees and parents of children who visited their parents on " Take Your Child to Work Day," at offices owned by defendants. These children used the bathrooms while at the office building. Although the bathrooms were locked, defendants provided keys to all tenants who in turn supplied them to their employees.

Route 208 Associates was the landlord of the building in 2003. In response to plaintiffs' interrogatories, defendants gave the following explanation for their decision to install video recording equipment in the bathrooms:

In 2003, in response to ongoing vandalism in both the men's and women's bathrooms located on the upper level of the building, surveillance cameras were installed in the bathrooms, although at that time were not wired or otherwise made operational. Prior to the installation of those cameras, representatives of tenant, Maxell . . . had communicated complaints to the building management regarding the conditions in the restrooms including complaints of paper being stuffed down toilets with resulting backup, overflow, etc. In addition to expending money for plumbing repairs, the defendant's building manager spoke

Page 1221

with the Fairlawn [sic] Police who suggested placing hidden cameras in the restrooms for the purpose of identifying who was going in and out, or putting " fake" cameras in the restrooms with a sign indicating the premises were under surveillance. The police department suggestions were communicated to . . . Maxell via email of May 28, 2003. Although defendant's email asked Maxell what it would be comfortable with, Maxell's representative replied that they " do not need to even know what action you elect to take. . . ."
The incidents of vandalism subsided for some time, but then intensified in 2007 as evidenced by further emails from Maxell's representatives to building management and visa [sic] versa. In an effort to identify the vandals, the building managers [433 N.J.Super. 164] arranged to make the cameras operation, which included the installation of a digital video recorder (DVR) and a monitor located in a maintenance closet. The cameras became functional on or about March 28 or 29, 2007 and then were observed by one or more employees of the buildings tenants who were passing the maintenance closet. These observations by employees of the buildings tenants resulted in calls to the Fairlawn [sic] Police Department who responded to the location on or about March 30, 2007. The Bergen County Prosecutor's Office subsequently took possession of the video monitor, DVR, and other equipment.
The surveillance cameras were positioned in such a way that although people could be seen entering or exiting the bathrooms and near the sink areas, they would not be observed at or in the stalls or at the urinals in the men's room. It was expected that any images captured by the surveillance cameras would depict people entering and leaving the restroom areas. The DVR that was recording the images from the surveillance cameras was confiscated by the Bergen County Prosecutor's Office who investigated the matter. Upon belief, no case was presented to a Grand Jury and the Prosecutor's Office decided not to pursue a ...

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