NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3630-15T1
HARRY JAY LEVIN
and LEVIN CYPHERS,
Plaintiffs-Appellants,
v.
BOARD OF TRUSTEES OF
OCEAN COUNTY BUSINESS
ASSOCIATION,
Defendant-Respondent,
and
CHUCK LAING, JAMES EVERETT,
PETER FERRO, GLENN VAN PELL,
STEVE POLLACK, LISA MCCOMSEY,
CHRIS ROSATI, GERRY RODELLI,
SHEREE ROBINSON, PAUL LOSEFF,
and CHAD WHITE, Members of the
Board of Trustees, OCEAN COUNTY
BUSINESS ASSOCIATION GRIEVANCE
COMMITTEE and MEMBERS OF THE
GRIEVANCE COMMITTEE, Individually,1
Defendants.
________________________________________________________________
Argued May 23, 2017 – Decided August 25, 2017
1
A stipulation of dismissal without prejudice was filed as to
the individual defendants on July 20, 2011; they are not parties
to this appeal.
Before Judges Messano and Espinosa.
On appeal from Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No.
C-123-11.
Harry Jay Levin argued the cause for
appellant (Levin Cyphers, attorneys; Mr.
Levin, Colleen Flynn Cyphers and Ronald J.
Bakay, on the briefs).
William J. Raulerson argued the cause for
respondent (Law Offices of Stephen E.
Gertler, attorneys; Cynthia A. Satter, on
the brief).
PER CURIAM
Ocean County Business Association (OCBA) is a private
business organization "whose stated purpose is to advance the
interest of business in Ocean County." OCBA terminated the
membership of plaintiff Harry Jay Levin, an attorney, after a
grievance was filed by another OCBA member. Plaintiffs initiated
this litigation to compel OCBA to reinstate Levin's membership.2
They appeal from a March 18, 2016 order, granting the summary
judgment motion of defendant Board of Trustees of OCBA and denying
plaintiffs' motion to enforce litigant's rights. We affirm.
2
The lawsuit was brought by Levin and his law firm, Levin Cyphers.
The complaint asserts Levin was a member of OCBA, makes no
corresponding allegation as to Levin Cyphers and seeks the
reinstatement of "plaintiff," a singular designation. We
therefore refer to Levin and Levin Cyphers as "plaintiffs" and
identify the individual and law firm individually where
appropriate.
2 A-3630-15T1
I.
Levin Cyphers retained the services of another OCBA member,
Adam Safeguard & Inquiry Systems, Inc. (Adam Safeguard), owned by
Dennis DeMey, to perform investigative services. In December
2010, DeMey filed suit against Levin Cyphers for failure to pay
fees that were owed for services rendered. In January 2011, DeMey
filed a grievance with OCBA against Levin, asserting he had failed
to pay any invoices for work Adam Safeguard had been retained to
perform. Levin was advised of the grievance and asked for a
response. Levin acknowledged generally that he had retained Adam
Safeguard to perform work on behalf of clients, identified certain
criticisms of the invoices and contended the grievance process
should not serve as an alternate form of collections processing
but rather should be delayed pending the adjudication of the
lawsuit.
Approximately six weeks later, Levin received an e-mail from
then-president of the OCBA, Chuck Laing, terminating Levin and his
law firm from the association, "effectively immediately." Levin
unsuccessfully sought an adjournment of the grievance process
pending resolution of DeMey's lawsuit. The request was denied.
In June 2011, plaintiffs filed a verified complaint seeking
immediate reinstatement as members of OCBA, and an order to show
cause (OTSC) seeking emergent relief. Defendant subsequently
3 A-3630-15T1
filed an answer, separate defenses, jury demand, and
certifications.
The following month, Levin Cyphers settled with Adam
Safeguard. The parties entered into a consent order of settlement
in which all claims and counterclaims were dismissed with
prejudice. The consent order also provided:
[B]y entering into this Consent Order of
Settlement, the parties hereby mutually
release, relinquish, discharge and waive any
and all claims they have or may have by and
against each other, including those raised or
which could have been raised in this
litigation, including all claims known or
unknown by them up to the date of this Consent
Order of Settlement . . . .
In September 2011, after hearing oral argument on the OTSC
the trial judge found the process that resulted in plaintiffs'
expulsion from OCBA was "flawed and did not comply with the OCBA
Constitution." He ordered the grievance process to be "reinstated,
providing [plaintiffs] the opportunity to address the grievance
as part of a fair and impartial process," and set forth a procedure
to be followed:
Plaintiffs objected to the makeup of the grievance committee
that was selected. The trial judge entered a new order, appointing
the third member of the grievance committee, and setting new dates
for actions by the grievance committee and plaintiffs.
4 A-3630-15T1
After meeting with the parties and receiving supporting
documents from them, the grievance committee unanimously
recommended that plaintiffs' membership be terminated.
Plaintiffs filed a summary judgment motion, seeking
reinstatement and arguing defendant failed to follow its own
constitution and the court's orders. Defendant filed a cross-
motion for summary judgment, "arguing that plaintiffs did not have
a sufficient interest to warrant judicial intervention." The
trial judge denied plaintiffs' summary judgment motion and granted
defendant's summary judgment motion.
Plaintiffs appealed. In an unpublished opinion, Levin v.
Board of Trustees of Ocean County Business Association, A-5596-11
(Mar. 1, 2013), certif. denied, 216 N.J. 4 (2013), we reversed the
grant of summary judgment to defendant, reinstated the complaint
and affirmed the denial of plaintiff's summary judgment motion
"insofar as it sought immediate reinstatement." Id. at 13. We
acknowledged plaintiffs were provided with the written grievance
prior to being interviewed by the grievance committee. The
grievance procedure remained flawed and "fundamentally unfair,"
however, because defendant did not provide plaintiffs "with the
right to confront the grievant" or "a hearing before the board."
Ibid. We remanded to the trial court, compelling a new grievance
procedure that was not "to be equated with the similar rights
5 A-3630-15T1
guaranteed by our federal and state constitutions," but conducted
pursuant to the following procedures:
The right to confront the grievant at the
hearing before the board may be brief and
informal, but plaintiffs have a right to be
present at all stages at which the grievant
provides information both before the grievance
committee, which should be reconstituted with
members not involved in the prior proceedings,
and before the board. Plaintiffs should be
offered the right to elicit information from
the grievant in the proceedings before the
grievance committee . . . .
[Id. at 13-14.]
After our decision, plaintiffs filed a motion to enforce the
settlement with Adam Safeguard, seeking to bar DeMey from appearing
at the grievance proceeding because he had released all claims in
the settlement. The trial judge denied the motion, noting that
the settlement with DeMey did not bind the OCBA or preclude it
from calling DeMey as a witness.
In December 2014, the trial judge prepared an order setting
forth the grievance procedure to be followed and reviewed it, line
by line, with counsel. Relevant to this appeal, the resulting
order addressed the composition of the grievance committee in the
following language:
1. The grievance shall be heard by a
new Grievance Committee constituted with three
members not part of the prior committees or
part of prior boards which have participated
in the grievance. The new committee shall be
6 A-3630-15T1
constituted as soon as practical. The
selection shall be conducted at the next
regularly scheduled meeting after January 1,
2015.
2. The new Grievance Committee shall be
selected randomly from OCBA members who
consent and have not otherwise been excluded
by [the] Court pursuant to paragraph 1.
The proposed order provided for plaintiffs to "provide a
written list . . . of any current OCBA member which Mr. Levin has
in good faith . . . a conflict and should not be permitted to hear
this grievance." Levin abjectly refused to do so, stating there
was "no reason for [him] to identify to a group of people that
[he's] got conflicts with them," and that he "[didn't] want a list
floating around there of the people that [he has] conflicts,
potentially conflicts with." As a result of Levin's objection,
two paragraphs were deleted from the proposed order. The next
paragraph that was proposed called for the random selection of
OCBA members who volunteer and have not otherwise been excluded.
Levin objected to that on the ground that volunteers would be
inclined to be biased. Following his objection, the paragraph was
revised to the language that was included in the order.
At the end of the review process, Levin expressly withheld
his consent to the form of the order and stated, "I think Your
Honor has exceeded what the Appellate Division has said you should
do."
7 A-3630-15T1
A new grievance committee, consisting of Richard Gilchrest,
Tony Baumer and Warren Segall, was convened on June 1, 2015. None
of the three were named defendants in the complaint filed by
plaintiffs or participated on the prior grievance committee. The
committee issued its findings and conclusion in writing that
plaintiffs violated OCBA Bylaws, Article XI 3-d, which was also a
violation of the "OCBA Code of Ethics: Provide goods and services
as promised and on time."3 The grievance committee recommended to
the OCBA Board of Directors that "Levin not be reinstated to
membership."
Defendant Board of Trustees of OCBA conducted a hearing on
the grievance, at which both Levin and the grievant were allowed
"to present their cases as if for the first time." At the outset
of the hearing, each attendee stated his or her name for the
record. Four of the Board members, Lisa McComsey, Chad White,
Sheree Robinson and Chuck Laing, had been individually named
defendants in plaintiffs' lawsuit before plaintiffs voluntarily
dismissed them without prejudice in July 2011. Levin did not
object to their participation.
3
OCBA has a Code of Ethics which, in part, requires its members
to "[r]esolve all complaints in a timely manner" and "[r]espect
all customers, employees, suppliers, and competitors."
8 A-3630-15T1
Levin was given an opportunity to directly address the Board
concerning each matter and "provide all information he had." He
was able to cross-examine the grievant, and address the evidence
presented.
The Board reviewed the Grievance committee's findings and
concluded its recommendation was justified. By unanimous vote,
the Board concurred with the recommendation that Levin not be
reinstated to membership. In addition to Laing, who recused
himself from voting "because of possible conflict in this matter,"
McComsey, Robinson, and White, the Board members in attendance who
voted were: Regina L. Gelzer, Joseph Caldeira, Andrew Knox, Sandra
Levine, and Christopher Aldrich.
Thereafter, defendant filed a motion for summary judgment and
plaintiffs filed a cross-motion to enforce litigant's rights
pursuant to Rule 1:10-3. Following oral argument, the trial judge
granted defendant's motion for summary judgment, denied
plaintiffs' motion to enforce litigant's rights as moot, and denied
defendant's motion to preclude portions of plaintiffs' briefs.
II.
On appeal, plaintiffs argue they should be reinstated as
members of OCBA. They assert they were not provided a fair and
impartial hearing because OCBA Board members who decided whether
plaintiffs should be reinstated were previously named as
9 A-3630-15T1
defendants in this matter and therefore had a conflict of interest.
They also contend that, as part of the settlement with Adam
Safeguard, DeMey agreed not to participate in the OCBA grievance
procedure, effectively ending the grievance. Plaintiffs argue the
trial court erred in failing to enforce the settlement agreement
pursuant to this interpretation. Defendant counters that
plaintiffs waived any objection to the composition of the Board
and that, in any event, there was no conflict of interest.
Defendant argues further the trial court did not err in concluding
the settlement agreement between plaintiffs and Adam Safeguard did
not foreclose DeMey from appearing at the grievance hearing.
After considering these arguments in light of the record and
applicable principles of law, we conclude plaintiff's arguments
lack merit and further, that the argument regarding the settlement
agreement with Adam Safeguard lacks sufficient merit to warrant
discussion in a written opinion.4 R. 2:11-3(e)(1)(E).
4
After prevailing in their appeal, specifically winning the right
to confront DeMey at the new grievance proceeding, plaintiffs
attempted to foreclose any testimony from him through their motion
to enforce settlement. At oral argument, the trial judge noted
the issue regarding whether DeMey could testify against plaintiffs
had existed since 2011, when the case was settled, and that "[t]he
Appellate Division had a right to know that" in deciding the
parameters of the proper procedure to be followed. Levin replied,
"No, they didn't." We agree with the trial judge, both in this
observation and in his disposition of the motion.
10 A-3630-15T1
III.
In reviewing a summary judgment decision, we view the evidence
"in the light most favorable to the non-moving party" to determine
"if there is a genuine issue as to any material fact or whether
the moving party is entitled to judgment as a matter of law." Rowe
v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We
review questions of law de novo, and need not accept the trial
court's conclusions of law. Davis v. Devereux Found., 209 N.J.
269, 286 (2012).
Although plaintiffs argue to the contrary, there are no
material issues of fact here. The issue is a purely legal
question, whether the procedure followed by the Board conflicts
with public policy, its own internal rules or any order of the
court.
"Private associations do not have unfettered discretion with
respect to their membership decisions." Cipriani Builders, Inc.
v. Madden, 389 N.J. Super. 154, 164 (App. Div. 2006) (citing
Rutledge v. Gulian, 93 N.J. 113, 118-24 (1983); Higgins v. Am.
Soc'y of Clinical Pathologists, 51 N.J. 191, 198-204 (1968);
Falcone v. Middlesex Cty. Med. Soc'y, 34 N.J. 582, 588-98 (1961)).
When a member seeks judicial intervention regarding a private
association's member decision, the court must determine whether
11 A-3630-15T1
"'plaintiff [has] an interest sufficient to warrant judicial
action,' and if such an interest is shown, whether 'that interest
[has] been subjected to unjustifiable interference by the
defendant[.]'" Cipriani, supra, 389 N.J. Super. at 165
(alterations in original) (citing Rutledge, supra, 93 N.J. at
118). When, as here, the private association is a professional
or trade association, "a court will extend greater protection to
membership." Id. at 166. Still, our review of a private
association's membership decision is limited. Ibid. We will
"provide relief . . . only if the association's rules or its
actions . . . 'conflict with public policy.'" Id. at 166-67
(quoting Higgins, supra, 51 N.J. at 202). "The essence of a fair
procedure for expulsion of a member of a private association,
particularly one that affects the member's economic interests, is
notice of the basis for the proposed expulsion and a fair
opportunity for the member to respond to the charges." Id. at
170.
In this case, it was determined that plaintiffs have an
interest sufficient to warrant judicial action, Levin, supra, slip
op. at 10, and that the procedure initially employed to terminate
plaintiffs' membership was fundamentally unfair. At our
direction, plaintiffs were to be afforded a new hearing at which
they would be provided the rights: to be present at all stages at
12 A-3630-15T1
which the grievant provided information to the grievance committee
and the board, to confront the grievant, and to elicit information
from the grievant in the proceedings before the grievant committee.
We also directed that the grievance committee "be reconstituted
with members not involved in the proceedings." Thereafter, the
trial judge entered a very detailed order regarding the procedure
to be followed that was designed to implement the principles we
outlined in our decision.
Plaintiffs do not contend that defendant failed to honor any
of the procedural safeguards required by our prior decision, the
trial court's detailed order or the constitution and bylaws of
OCBA. Specifically regarding the heavily litigated issue of the
membership of the grievance committee, we note the three members
were neither named defendants nor participants on the original
grievance committee.
Plaintiffs' claim they were denied a fair and impartial
hearing is based upon the fact that the voting Board included
members who had been individual defendants in this case.
Plaintiffs claim they were unaware that these Board members would
participate in the grievance decision-making. This contention,
which was rejected by the trial court, is irremediably refuted by
the record. As we have noted, all the Board members identified
themselves by name at the outset of the hearing. Moreover, when
13 A-3630-15T1
questioned by the trial judge, Levin conceded he was aware board
members were in the room that he named in the litigation previously
because "[t]hey all sat in the front." Even if, as plaintiffs
contend now, Levin was unaware which of the Board members would
vote, it was incumbent upon him to inform the Board that he
objected to having former defendants participate in the decision.
Yet, no objection was made.
As the trial judge correctly pointed out, the Board of
Trustees of OCBA was the lead defendant in this matter. Therefore,
the ultimate decision on whether plaintiffs would be reinstated
was always going to be made by an entity named as a defendant in
this action. And, although argument was presented regarding the
participation of individual defendants in the grievance committee,
no argument was ever presented regarding who could participate at
the Board level.
The record clearly shows plaintiffs were provided "[t]he
essence of a fair procedure . . . notice of the basis for the
proposed expulsion and a fair opportunity for the member to respond
to the charges." Cipriani, supra, at 170. The very nature of our
review of a private association's decisions on these matters
assumes that the final decision will be made by the association
whose decision has been challenged. Plaintiffs have cited no
authority that dictates the exclusion of Board members on the
14 A-3630-15T1
basis they raised for the first time following the Board's
decision. We are satisfied the hearing complied with public
policy, the OCBA's internal rules and the directions of this court
and the trial court.
Affirmed.
15 A-3630-15T1