NOT FOR PUBLICATION WITHOUT THE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-4329-15T4
ANCHORAGE POYNTE
CONDOMINIUM ASSOCIATION,
INC.,
Plaintiff-Respondent,
v.
CHRISTOPHER DI CRISTO and
PATRICIA DI CRISTO,
Defendants-Appellants.
_____________________________
Argued August 1, 2017 – Decided August 17, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No. L-
1315-13.
David A. Kasen argued the cause for appellants
(Kasen & Kasen, attorneys; Mr. Kasen, on the
briefs).
Richard M. Kitrick argued the cause for
respondent.
PER CURIAM
Defendants Christopher and Patricia DiCristo appeal from an
April 29, 2016 order denying defendants' motion to vacate an April
4, 2016 judgment in favor of plaintiff and dismissing their
counterclaim. For the reasons that follow, we affirm.
On July 8, 2005, defendants purchased a condominium with a
boat slip in Anchorage Cove, LLC, a development known as Anchorage
Poynte Condominiums. Defendants stopped paying their association
dues when their unit went into foreclosure. Plaintiff sued
defendants for failure to pay these dues and counsel fees, filing
a complaint on March 13, 2013. Defendant Christopher, then self-
represented, filed an answer on June 14, 2013.1
Plaintiff moved for summary judgment, which was entered by
the court on August 27, 2014. However, on August 15, 2013,
defendants filed a Chapter 11 petition in the United States
Bankruptcy Court, staying the suit in Superior Court; therefore,
the August 27 judgment was vacated. The Bankruptcy Court dismissed
the Chapter 11 case on October 24, 2014, and plaintiff moved to
reinstate its complaint and enter summary judgment for $52,456.89
1
We use defendant's first names to differentiate them, as they
have the same last name. We do not intend any disrespect by this
informality.
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against defendants.2 Defendants opposed the motion. On January
26, 2015, the motion judge reinstated the complaint, and instructed
defendants to file an answer bearing both their signatures and
plaintiff to refile the summary judgment motion in accordance with
the court rules. Defendants filed an answer and counterclaim on
February 17, 2015, and the parties engaged in discovery.
After plaintiff refiled for summary judgment, three hearings
were conducted. At the first hearing, on February 5, 2016, the
motion judge heard argument from plaintiff's counsel and defendant
Christopher, pro se. Defendant argued, pursuant to the master
deed and by-laws of the condominium association, he was no longer
obligated to pay accrued fees and assessments because title was
transferred after the foreclosure proceeding. The court permitted
defendant thirty days to retain an attorney, rescheduled the motion
for oral argument, and carried the matter until March 18, 2016.
On March 18 the motion judge resumed the matter, noting defendant
did not appear despite notice sent by the court.
The motion judge reviewed the papers submitted and found no
material factual issues in dispute regarding plaintiff's complaint
and entered judgment for plaintiff in the amount of $52,456.89.
2
Plaintiff moved for summary judgment against Christopher and
for the entry of default against Patricia, who did not file an
answer.
3 A-4329-15T4
The motion judge dismissed defendants' counterclaim because they
had not provided sufficient responses to plaintiff's discovery
requests to ascertain the factual basis for the conclusory
statements in the counterclaim. The judge entered the order on
April 4, 2016.
Thereafter, defendant Christopher, pro se, moved under Rule
4:50 to reinstate his counterclaim and vacate the April 4, 2016
judgment. At the third hearing, held on April 29, 2016, the motion
judge denied defendant's motion. This appeal followed.
On appeal, defendant argues his pleadings should have been
held to a less stringent standard because he was self-represented,
the motion judge did not apply the required summary judgment
standard of giving all reasonable inference to the non-moving
party, and he is entitled to a set-off because plaintiff breached
its fiduciary duty to the association members. Defendant also
argues he raised genuine issues of material fact not addressed by
the motion judge and the judge did not make findings of fact and
conclusions of law as required by Rule 1:7-4 and Rule 4:46-2(c).
At the outset, we note this appeal is from the denial of a
motion for relief from a judgment pursuant to Rule 4:50.
Defendant's motion did not specify specific grounds for relief,
but merely requested reinstatement of his counterclaim and
reconsideration of the judgment entered against him. At the April
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29, 2016 hearing, the motion judge asked defendant "is there
anything new since the time that I made the decision that would
if presented alter the decision I previously made?"
Defendant responded by expressing his general dissatisfaction
with the prior proceeding, the outcome, and the conduct of the
attorneys. Based upon the judge's review of the parties'
submissions and the responses provided at oral argument, the motion
judge found no basis to vacate the April 4, 2016 judgment,
predominately because defendant failed to identify the specific
basis to vacate the judgment under Rule 4:50. "It is within the
trial court's sound discretion, guided by equitable principles,
to decide whether relief should be granted pursuant to Rule 4:50-
1." In re Guardianship of J.N.H., 172 N.J. 440, 473 (2002) (citing
Housing Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)).
That decision "will be left undisturbed unless it represents a
clear abuse of discretion." Ibid.
Moreover, defendants appeal only the denial of the April 29
2016 order and not the original order granting summary judgment.
See Fusco v. Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div.)
(citing Pressler, Current N.J. Court Rules, cmt. 6 on R. 2:5-
1(f)(3)(i) (2002)) (explaining this court only considers judgments
and orders listed in a notice of appeal), certif. denied, 174 N.J.
5 A-4329-15T4
544 (2002). Accordingly, we review for an abuse of discretion.
Ibid.
We address each argument in turn. We recognize that the
United State Supreme Court has stated in Haines v. Kerner, 404 U.S
519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652, 654 (1972), that
a self-represented litigant's pleadings are held to a less
stringent standard than an attorney's. However, self-represented
litigants are not entitled to greater rights than litigants who
are represented by counsel and are expected to adhere to the court
rules. Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982).
Here, the motion judge accommodated defendants by permitting
the filing of an amended answer and counterclaim upon reinstatement
of the complaint after the lifting of the automatic stay.
Defendants' pleadings did not request a jury, asserted claims of
fraud generally without reference to the requirements of Rule 4:5-
8, and provided incomplete and unclear responses to discovery
requests. Moreover, defendants did not provide a response to
plaintiff's summary judgment motion that raised material questions
of fact.
Notwithstanding defendants' initial response to plaintiff's
motion, the motion judge offered defendants an additional thirty
days to retain an attorney to address the motion. Defendants did
not appear on March 18, 2016, and the court was within its
6 A-4329-15T4
discretion to enter judgment at that time. The motion judge made
findings after reviewing the documents submitted and entered an
order awarding judgment of $52,456.89 to plaintiff, and dismissed
the counterclaim because defendant did not provide the court with
anything other than generalized allegations of fraud and submitted
no documentation he suffered any damages.
Our review of the record reveals the motion judge's enormous
patience with defendant Christopher as a self-represented
litigant. Although he argues his inartful pleadings should have
been held to a less stringent standard, defendant does not provide
any particular example of how his pleadings were either misread,
misconstrued, or misinterpreted. We discern no abuse of the
court's discretion or evidence defendant Christopher was unfairly
treated as a self-represented litigant.
We reject defendants' argument the court did not give all
reasonably favorable inferences to defendants as required by Rule
4:46-2(c). They provide no examples of specific inferences
erroneously assigned by the motion judge.
Defendants assert they are entitled to a set-off against
their obligation to pay dues and assessments to plaintiff pursuant
to The Glen, Section I Condo. Ass'n v. June, 344 N.J. Super. 371
(App. Div. 2001). We disagree because defendants provided no
proof of any damages and misreads Glen.
7 A-4329-15T4
In Glen, we concluded condominium unit owners are required
by law to pay their share of the common expenses. Id. at 376
(citing N.J.S.A. 46:8B-17). N.J.S.A. 46:8B-17 provides that "[a]
unit owner shall, by acceptance of title, be conclusively presumed
to have agreed to pay [her] proportionate share of common expenses
accruing while [she] is the owner of a unit." Additionally,
N.J.S.A. 46:8B-17 states "[n]o unit owner may exempt himself from
liability for his share of common expenses by waiver of the
enjoyment of the right to use any of the common elements or by
abandonment of his unit or otherwise." Furthermore, we have stated
the obligation to pay condominium fees is unconditional. Glen,
supra, 344 N.J. Super. at 376.
In Glen, we also concluded a homeowners association's breach
of its duty of good faith and fair dealing by installing a lolly
column in defendant's driveway damaged defendant, but did not
relieve defendant of his obligation to pay fees and assessments.
In that matter, we remanded for a trial on the limited issue of
defendant's damages resulting from the actions of the homeowners
association denying access to his driveway, and we said those
damages would be a set-off against defendant's obligations to
common areas. Here, the motion judge determined defendants
established no claim for such damages and we find no error in that
determination.
8 A-4329-15T4
The motion judge addressed plaintiff's claim for fees and
costs at the February 5, 2016 hearing, asking defendant Christopher
if he had any defense to the claim he and his wife owed the amount
sought by plaintiff. His only argument was, pursuant to the
bylaws, he was no longer obligated to pay the association payments
as he had lost the property to foreclosure. The motion judge
stated he was granting summary judgment on unpaid dues, interest,
the assessment and attorneys fees, but offered to hold the amount
of the judgment in abeyance for twenty days in order for defendant
Christopher to submit a letter to the court opposing or disputing
any of the items. Defendant Christopher did not submit a written
objection.
Regarding the motion to dismiss the counterclaim, the court
permitted defendant Christopher thirty days to retain an attorney
and told the parties to return on the second motion day in March.
Defendants did not appear.
We also reject defendants' assertion their counterclaim and
defenses precluded entry of summary judgment in favor of plaintiff.
In opposition to plaintiff's motion, defendants did nothing more
than rely on unsupported allegations. The record does not include
a certification attesting to facts or referencing evidence in
support of specific defenses or counterclaims.
9 A-4329-15T4
Defendants were required to raise a genuine dispute of
material fact supported by the evidential materials submitted on
the motion. They could not rely on the allegations and denials
in their pleadings. See R. 4:46-5(a); Robbins v. Jersey City, 23
N.J. 229, 241 (1957)(noting where a prima facie claim warranting
summary judgment is established, the party opposing the motion
must "demonstrate by competent evidential material that a genuine
issue of fact exists").
Defendants proffered no proof other than bald assertions
unsupported by, and in many instances contradicted by, the record.
Conclusory and self-serving assertions by defendants are
insufficient to overcome the plaintiff's motion. See Petersen v.
Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011).
Any additional arguments raised in defendants' submissions
that have not been specifically addressed were found to lack
sufficient merit to warrant discussion in our written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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