DANIEL MOTLEY VS. RALPH L. FINELLI VS. STEVEN LISA (L-0834-16, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5263-17T1

DANIEL MOTLEY,

Plaintiff-Appellant,

v.

RALPH L. FINELLI,

Defendant/Third-Party
Plaintiff-Respondent,

v.

STEVEN LISA, and L&B
DEVELOPERS, LLC,

Third-Party Defendants.
___________________________

Argued July 8, 2019 – Decided July 16, 2019

Before Judges Yannotti and Haas.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-0834-16.
 Kristen Ragon argued the cause for appellant (Goldman
Davis Krumholz & Dillon, PC, attorneys; Evan L.
Goldman and Kristen Ragon, on the brief).

Lisa M. Leili argued the cause for respondent (Vella,
Singer and Associates, PC, attorneys; Lisa M. Leili and
David J. Singer, of counsel and on the briefs).

PER CURIAM

Plaintiff Daniel Motley appeals from an order entered by the Law Division

on June 8, 2018, which denied his motion for reconsideration of an order dated

April 16, 2018, which dismissed his claims against defendant Ralph L. Finelli

with prejudice. We affirm.

I.

Plaintiff and his brother are the owners of property in the Borough of

Seaside Park (the Borough). The property is located in the Borough's "R -3

zone," which restricts property to single-family uses. The property contained

two structures, which were constructed before the R-3 zone restrictions went

into effect and qualified as pre-existing, non-conforming uses. In 2008, plaintiff

made plans to renovate one of the buildings after a hot water system burst and

the structure sustained significant water damage.

Initially, plaintiff planned to add a second story to the building and filed

a use variance with the Borough's Zoning Board of Adjustment (Board), seeking

A-5263-17T1
2
to expand the nonconforming use and certain bulk variances. The Board denied

the application. Plaintiff revised his approach and hired defendant, a licensed

architect, to design the construction plans. Defendant completed the plans on

July 18, 2009.

In August 2009, plaintiff submitted an application for a zoning permit to

the Borough's zoning officer, James Mackie, seeking permission to begin

construction. On the portion of the application describing the work to be

performed, plaintiff wrote, "[r]epair [r]enovation of [e]xisting dwelling" and

"replace A/C." He attached defendant's plans to the application.

On August 28, 2009, Mackie approved the application and issued a permit

to begin construction. The permit stated there was to be "[n]o expansion of [the

structure's] dimensions[.]" The permit also stated, "[s]iding, shingles, additional

windows only – no bumpouts." Construction began thereafter.

On January 20, 2010, the Borough's code enforcement officer, Patrick

Linkovitch, telephoned plaintiff and informed him "that the construction that is

being performed is beyond the scope of [the] zoning permit." Linkovitch asked

plaintiff to meet with him at the Borough's zoning office the following day.

On January 21, 2010, plaintiff and his construction manager, Steven Lisa,

met with Linkovitch and Mackie. Plaintiff testified that Mackie told plaintiff

A-5263-17T1
3
"the building went to[o] far and [plaintiff] was going to be issued a stop order."

Mackie informed plaintiff that local ordinances prohibited renovations that

affect more than fifty percent of an existing structure.

That same day, the Borough issued an order that prohibited any further

construction on the property (the stop-work order). The stop-work order stated

that the construction on the property exceeded the scope of the construction

permit and that plaintiff needed to obtain an "update" to the permit before

continuing construction.

Defendant became aware of the stop-work order, and on January 22, 2010,

he wrote a letter to the Borough's construction office challenging the order and

detailing the scope of his design plans. Defendant stated that he "anticipate[s]

the removal of the [s]top [o]rder to be imminent."

On January 31, 2010, defendant wrote a letter to the Borough's zoning

office, detailing the construction to date and stating that he "believe[d] all of the

work has been carried out with the best interests of the owner and the [B]orough

in mind, and with respect to all applicable codes and ordinances in effect at the

date of issue." On February 4, 2010, the Borough posted a zoning violation

notice on plaintiff's property.

A-5263-17T1
4
 Plaintiff challenged the stop-work order in a petition to the Borough's

Board of Adjustment (the Board), which thereafter conducted hearings on the

petition. At the hearings, defendant stated that the project involved the total

renovation of the building's interior and exterior, and the permit application

provided for replacement of the roof, frame, and finish, installation of a new

floor and staircase, as well as construction of a new upstairs bathroom.

Defendant asserted that the renovation plan would not change the existing

dimensions of the structure.

Lisa testified that the roof was removed first and as the work progressed,

it became clear that the building had more damage than initially known. He

stated that while he had hoped to retain as much of the existing walls as possible,

the condition of the building did not permit that approach. He also said that

many floor beams were rotted, and the main center beam was sagging six to

eight inches. According to Lisa, the building inspector decided that the entire

structure had to be removed.

Mackie testified that when he reviewed plaintiff's permit application and

defendant's construction plans, he believed the plans called only for the

construction of new windows, new shingles, and a new roof. Mackie stated that

as construction progressed, he realized the construction that plaintiff was

A-5263-17T1
5
undertaking did not comply with the limitations imposed by the permit or with

the Borough's zoning laws. Mackie testified that the demolition went beyond

what he had anticipated. He stated that "everything was gone and it was all new

construction."

Plaintiff testified that the plans that defendant prepared had alerted the

Borough to the possibility that he might need to remove the walls. He stated

that he had discussed with Mackie the replacement of the floor joists, insulation,

and exterior-wall framing. In addition to seeking withdrawal of the stop-work

order, plaintiff asked the Board to issue a use variance to allow him to continue

the construction.

The Board upheld the stop-work order. The Board noted that under the

relevant provision of the Borough's zoning ordinance, a pre-existing

nonconforming use may be repaired or maintained, if such repairs or

maintenance do not result in the total destruction of the property. The Board

found that Mackie had approved repairs and renovations to the existing building,

with certain limitations.

The Board stated that although the plans indicated a wooden floor and

existing roof frame would be removed and replaced, the plans did not provide

for replacement or removal of the building's walls. The Board found that the

A-5263-17T1
6
demolition and construction undertaken exceeded the zoning approvals which

had been granted, and that the creation of additional living space in the structure

constituted an impermissible expansion of the preexisting, nonconforming use.

Plaintiff appealed the Board's decision by filing an action in lieu of

prerogative writs in the Law Division. The trial court found that the evidence

presented to the Board did not demonstrate an "impermissible expansion of the

nonconforming use," and that plaintiff's renovations did not alter the dimensions

of the structure. The court set aside the stop-work order in part, and allowed

plaintiff to resume certain development of the property. The Board appealed

from the trial court's judgment.

In a published opinion, this court reversed the part of the trial court's

judgment that vacated the stop-work order. Motley v. Borough of Seaside Park

Zoning Bd. of Adjustment, 430 N.J. Super. 132, 156 (App. Div. 2013). The

court stated that the construction involved more than the partial destruction of

the building, and determined that "[a]bsent a variance, plaintiff had no right to

restore the nonconforming structure." Id. at 149.

The court also determined that plaintiff had acted improperly by

exceeding the limitations of the zoning permit. Id. at 151. The court stated,

"Mackie's notations on the permit clearly show that the authorized work was

A-5263-17T1
7
limited in nature." Ibid. The court determined that plaintiff had no legal right

to exceed what the zoning officer's permit allowed. Ibid.

Plaintiff thereafter sought review of the court's judgment by filing a

petition for certification with the Supreme Court. On September 10, 2013, the

Court denied the petition. Motley v. Borough of Seaside Park Zoning Bd. of

Adjustment, 215 N.J. 485 (2013). On February 25, 2014, the Board ordered

plaintiff to demolish the structure.

On February 4, 2016, plaintiff commenced this action, alleging that he

suffered damages as a result of defendant's "negligence and carelessness." He

claimed that "[a]s a licensed professional," defendant "knew or should have

known that removal of the walls of the front house would violate [the]

Borough['s] zoning ordinances," and that defendant "had an obligation to ensure

that his proposed [architectural] [p]lans complied with local zoning ordinances."

Plaintiff further alleged defendant "breached the requisite standard of care

relating to architectural practice," which caused him "severe damages,"

including

the loss of use and enjoyment of the [p]roperty, costs
associated with the delay in being able to use, sell, or
otherwise dispose of the [p]roperty, diminution in value
of the [p]roperty as a result of the loss of the front house
and the costs of construction work to the front house
which ultimately required removal.

A-5263-17T1
8
 In July 2016, defendant filed an answer, cross-claims, and various

affirmative defenses. In March 2017, defendant filed an amended answer, cross-

claims and a third-party complaint against Lisa and his construction company,

L&B Developers, LLC (L&B). Plaintiff thereafter filed an amended complaint

asserting claims against Lisa and L&B. In February 2018, the trial court

dismissed all claims against Lisa with prejudice.

On February 8, 2018, defendant filed a motion to dismiss plaintiff's

complaint, arguing that plaintiff did not file the claims against him within the

time prescribed by N.J.S.A. 2A:14-1. On March 16, 2018, the judge heard oral

argument on the motion and thereafter, filed an order, dated April 16, 2018,

which granted defendant's motion and dismissed the complaint with prejudice.

The judge found that plaintiff's cause of action accrued on January 21,

2010, when the Borough issued the stop-work order. The judge also found that

plaintiff's appeals challenging the order did not toll the running of the statute of

limitations. The judge decided that plaintiff's claims against defendant were

barred because plaintiff did not file his complaint within six years after the cause

of action accrued, as required by N.J.S.A. 2A:14-1.

On May 4, 2018, plaintiff filed a motion for reconsideration of the court's

order. In an order dated June 8, 2018, the judge denied plaintiff's motion for

A-5263-17T1
9
reconsideration. The judge found that plaintiff had not shown that in dismissing

the action, he had acted in a palpably incorrect or irrational manner. This appeal

followed.

II.

On appeal, plaintiff first argues that the "discovery rule" applies here and

tolled the running of the statute of limitations on his claim. He argues that when

the Borough issued the first stop-work order on January 21, 2010, he did not,

and could not, appreciate that he had sustained an ascertainable injury that

defendant caused. He further argues that defendant contributed to his failure to

perceive he had a potential cause of action against defendant.

We note initially that plaintiff has only appealed from the trial court's

order of June 8, 2018, which denied his motion for reconsideration.

"[R]econsideration is a matter within the sound discretion of the [c]ourt, to be

exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super. 374,

384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.

Div. 1990)). A court should only grant a motion for reconsideration when

"either (1) the [c]ourt has expressed its decision based upon a palpably incorrect

or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or

failed to appreciate the significance of probative, competent evidence." Fusco

A-5263-17T1
10
v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (first

quoting D'Atria, 242 N.J. Super. at 401; and then citing R. 4:49-2).

Here, the trial court did not mistakenly exercise its discretion by denying

plaintiff's motion for reconsideration of the April 16, 2018 order, which

dismissed plaintiff's claims against defendant with prejudice. As the court

correctly noted, N.J.S.A. 2A:14-1 governs the time in which plaintiff's claims

against defendant for professional malpractice must be filed. The statute

provides that the action must be filed within six years after the cause of action

accrued. Ibid.

A cause of action for professional negligence "accrues" when a

defendant's "breach of professional duty proximately causes a plaintiff's

damages." Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993) (citing Gautam v.

DeLuca, 215 N.J. Super. 388, 397 (App. Div. 1987)). "Accrual of an action is

the trigger that commences the statute-of-limitations clock." The Palisades at

Fort Lee Condominium Assoc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442

(2017).

However, "[u]nder special circumstances and in the interest of justice,"

the discovery rule may apply and "postpone the accrual of a cause of action

when a plaintiff does not and cannot know the facts that constitute an actionable

A-5263-17T1
11
claim." Grunwald, 131 N.J. at 492. Under the discovery rule, "the limitations

clock does not commence until a plaintiff is able to discover, through the

exercise of reasonable diligence, the facts that form the basis for an actionable

claim against an identifiable defendant." Palisades, 230 N.J. at 435 (citing

Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)).

In his complaint, plaintiff alleges that he retained defendant to prepare the

plans for remodeling of one of the houses on his property, which is a

nonconforming use in the Borough's R-3 residential zone that previously

suffered extensive damage. Plaintiff claims defendant prepared plans, which

anticipated "a complete renovation of the" house.

Plaintiff asserts that after the construction began, it was determined that

the walls were in "very poor condition and required replacement." Plaintiff

notes that the walls were removed and replaced. He also notes that the

Borough's code enforcement officer issued a stop-work order after the officer

discovered the extent to which plaintiff and his contractors had demolished the

front house.

Plaintiff claims that after this court reinstated the stop order, he was left

with a partially-renovated house, which he could not complete. He was ordered

to tear down what remained of the structure and fill the ground with soil. He

A-5263-17T1
12
claims defendant knew or should have known that removal of the walls from the

house would violate the Borough's zoning ordinance. He alleges that as a

licensed professional, defendant had a duty to ensure that the plans complied

with the zoning ordinance.

As noted previously, the trial court in this case determined that plaintiff's

cause of action against defendant accrued on January 21, 2010, when the

Borough issued the first stop-work order. The court decided that, as of that date,

plaintiff became aware of facts that would alert a reasonably diligent person of

the possibility he had an actionable claim against defendant. The record

supports the trial court's determination.

On January 20, 2010, Linkovitch, the Borough's code enforcement officer,

informed plaintiff that there was a problem with the construction on the

property. On January 21, 2010, plaintiff and his construction supervisor met

with Linkovitch and Mackie at the Borough's zoning office. At that meeting,

Mackie told plaintiff that the construction at the front house had exceeded the

scope of the zoning permit issued for the project and that the Borough's zoning

ordinance prohibited renovations that affect more than fifty percent of an

existing structure. That day, the Borough issued the stop-work order, which

prohibited further construction.

A-5263-17T1
13
 Thus, plaintiff knew, as of January 21, 2010, that the Borough officials

had determined that construction on his property had exceeded the scope of work

allowed by the previously-issued permit. On that date, plaintiff was aware of

facts, which would place a person of reasonable diligence on notice that he had

a potential claim against defendant for professional negligence in the

preparation of the design plans. Plaintiff had sufficient facts to claim that

defendant had prepared plans that did not comply with the Borough's zoning

ordinance.

Nonetheless, plaintiff argues that on January 21, 2010, he could not

appreciate that he had sustained an ascertainable injury due to defendant's

alleged professional malpractice. He claims that when the Borough stopped the

work on January 21, 2010, the Borough provided an explanation that was

"extremely vague." According to plaintiff, the Borough's officials merely stated

that the work exceeded the scope permitted by the permit, but the stop-work

order did not specify "how or why" this was so.

Plaintiff further argues that in addition to the lack of specificity in the

stop-work order, circumstantial evidence shows that a reasonable person in this

situation would not have appreciated he may have a cause of action against

defendant for professional malpractice. Plaintiff asserts that defendant disputed

A-5263-17T1
14
the basis for the issuance of the stop-work order, and provided the Borough with

additional information regarding the suitability of the foundation and the revised

floor construction for the structure.

Plaintiff asserts that defendant later insisted that the decisions regarding

the existing building components and his directions regarding the construction

were consistent with the Borough's Code and the zoning permit. Plaintiff alleges

that defendant encouraged him to challenge the stop-work order. He argues it

was reasonable for him to believe that the Borough mistakenly issued the stop-

work order and the matter could be "easily rectified." He further argues that the

notice of tort claim he filed with the Borough shows that the Borough issued the

stop-work order on January 21, 2018 under "vague circumstances."

We are convinced, however, that the circumstances under which the

Borough issued the stop-work order, were not "vague." As of January 21, 2010,

plaintiff had sufficient information to believe he had suffered damages, and that

the damages were attributable to the design plans that defendant had prepared.

The Borough's communications on January 20 and 21, 2010, were more than

sufficient to make plaintiff aware of "the facts that form the basis for an

actionable claim against an identifiable defendant." Palisades, 230 N.J. at 435

(citing Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)).

A-5263-17T1
15
 Therefore, the trial court correctly determined that plaintiff's cause of

action against defendant accrued on January 21, 2010, and plaintiff failed to file

his complaint within the time required by the statute of limitations.

III.

Plaintiff further argues that his administrative and Chancery Division

challenges to the stop-work order tolled the running of the statute of limitations.

He argues that he did not receive an adverse decision until this court reinstated

the order on March 4, 2013. Plaintiff argues that the trial court in this matter

erred by relying upon Grunwald. We disagree.

In Grunwald, the plaintiff hired an attorney and his law firm to negotiate

an option agreement for the sale of certain property in Atlantic City. Grunwald,

131 N.J. at 488. The plaintiff's attorney prepared the agreement and provided a

sales contract to a prospective purchaser. Ibid. The prospective purchaser

signed the option agreement and the contract. Ibid.

The attorney advised the plaintiff that the prospective purchaser had

executed an enforceable contract to buy the property. Ibid. When the

prospective purchaser backed out of the agreement, the plaintiff brought an

action for specific performance or, in the alternative, damages. Ibid.

A-5263-17T1
16
 The Chancery Division found the agreement was unenforceable because

the prospective purchaser had not intended to purchase the property. Ibid. This

court affirmed. Ibid. The plaintiff then filed an action against his attorney for

legal malpractice, but it was filed more than six years after the Chancery

Division's decision. Ibid. The trial court dismissed the malpractice action as

time-barred, finding that under the discovery rule, plaintiff "knew or should

have known that he had suffered damages attributable to" his attorney's

representation as soon as he became aware of the Chancery Division's decision ,

which found the contract unenforceable. Id. at 489.

This court reversed the order dismissing the complaint, finding that the

statute of limitations did not begin to run until the completion of plaintiff's

appeals in the underlying Chancery Division action and plaintiff received a

definitive answer as to whether he suffered any damages. Ibid. The court found

that "until the appellate process had run its course, plaintiff's damages were

merely speculative, because a favorable resolution of the underlying appeal

would have extinguished the damages claimed in the legal-malpractice action."

Ibid.

The Supreme Court reversed. Id. at 500. The Court stated that the legal

uncertainty regarding whether damages actually occurred "does not alter the

A-5263-17T1
17
time when the underlying injury or harm occurs and becomes cognizable for

purposes of triggering the accrual of a cause of action." Id. at 496. The Court

reasoned that a contrary holding would "undermine[] the principal consideration

behind statutes of limitations: fairness to the defendant." Id. at 496-97. The

Court held that the date on which the plaintiff became aware or should have

become aware of defendant's "fault" could "occur before or during a judicial

resolution of the underlying action." Id. at 497.

The Court also rejected plaintiff's argument that requiring the plaintiff to

file a lawsuit against his attorney at a point when it was still uncertain whether

he suffered any damages "may result in a malpractice plaintiff advocating

inconsistent positions." Id. at 499. The Court stated that this "apparent

dilemma" could be managed by "[s]taying the malpractice action pending

completion of the appellate process on the underlying claim[.]" Ibid.

Here, plaintiff argues that the facts are distinguishable from the facts

underlying the Court's decision in Grunwald. He contends that Grunwald must

be read narrowly and that it stands for the proposition that a statute of limitations

will accrue through the appellate process only when the plaintiff is appealing an

"adverse judgment."

A-5263-17T1
18
 Plaintiff argues that, unlike the situation in Grunwald, he did not initially

appeal an "adverse judgment." He points out that he did not receive an "adverse

judgment" on his underlying action against the Board until the court reversed

the Law Division's order and reinstated the stop-work order halting construction

on his property. He points out that the Appellate Division rendered its decision

on March 4, 2013, and claims he filed his complaint against defendant well

within the time required by the statute of limitations.

We are not persuaded by these arguments. As we have explained, in

Grunwald, the Court held that the accrual of a cause of action is not tolled by

litigation of the underlying dispute. The Court made clear that determining

when a cause of action accrues does not depend on whether the plaintiff receives

a final judgment on the underlying cause of action. Id. at 496. In our view, the

Court's holding applies even if the plaintiff receives a favorable judgment in a

related trial court action, which is later reversed on appeal.

Therefore, under Grunwald, the relevant inquiry is "when the client

suffers damage and discovers, or through reasonable diligence should discover,

that that damage is attributable to [the defendant]." Id. at 499. For the reasons

set forth previously, plaintiff had that information on January 21, 2010, when

the Borough issued the first stop-work order. Because plaintiff did not file his

A-5263-17T1
19
complaint within six years after that date, his claims against defendant are barred

by the statute of limitations.

Affirmed.

A-5263-17T1
20