SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2685-18T2

PAUL RICHMAN,

Plaintiff-Appellant,

v.

A COUNTRY PLACE 

CONDOMINIUM ASSOCIATION, 

INC., A COUNTRY PLACE 

CONDOMINIUM ASSOCIATION 

BOARD OF DIRECTORS, BARRY 

FRISCHMAN, BARRY HERTZ, 

ISAAC HOLTZ, FAY ENGLEMAN,

LIVIA COHEN, OCEAN 

MANAGEMENT GROUP, JACK 

SCHMIDT, ELI SCHWARTZ, 

JESSICA SCHACH, JOE GRUEN, 

GARY EISENBERGER,

and MILTON NUEMAN,

Defendants-Respondents,

and

UNITED PAVING CONTRACTORS,

Defendants.

and 

NOT FOR PUBLICATION WITHOUT THE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.
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A-2685-18T2

A COUNTRY PLACE 

CONDOMINIUM ASSOCIATION, 

INC., A COUNTRY PLACE 

CONDOMINIUM ASSOCIATION 

BOARD OF DIRECTORS, BARRY 

FRISCHMAN, BARRY HERTZ, 

ISAAC HOLTZ, FAY ENGLEMAN,

LIVIA COHEN, OCEAN 

MANAGEMENT GROUP, JACK 

SCHMIDT, ELI SCHWARTZ, 

JESSICA SCHACH, JOE GRUEN, 

GARY EISENBERGER, and

MILTON NUEMAN,

Defendants/Third-Party 

Plaintiffs-Respondents,

v.

UNITED PAVING CONTRACTORS,

Third-Party Defendant.

________________________________

Submitted November 2, 2020 – Decided 

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Ocean County, Docket No. C000210-16.

Paul Richman, appellant pro se. 

Costigan & Costigan, attorneys for respondents 

(Angela Maione Costigan, on the brief).

November 23, 2020
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A-2685-18T2

Methfessel & Werbel, attorneys for respondents as to 

Counts 11, 12 and 13 only (Christian R. Baille, of 

counsel and on the brief).

PER CURIAM 

Plaintiff appeals from two orders: a February 16, 2018 order granting 

plaintiff's counsel's motion to be relieved as counsel; and a January 11, 2019 

order granting summary judgment in favor of A Country Place Condominium 

Association, Inc. (ACP), ACP Board of Directors (Board), Board members in 

their individual capacity, and Ocean Management Group (OMG) (collectively 

defendants) dismissing all of plaintiff's nineteen claims. The judge did not abuse 

his discretion by granting plaintiff's counsel's motion to be relieved as counsel, 

and the judge correctly granted summary judgment in favor of defendants as to 

all claims except plaintiff's New Jersey Law Against Discrimination (LAD) 

claim. We therefore affirm and reverse only as to the LAD claim, pointing out 

that the Court of Appeals for the Third Circuit in Curto v. A Country Place 

Condo. Ass'n, Inc., 921 F.3d 405 (3d Cir. 2019) reversed the District Court's 

decision on which the judge substantially and erroneously relied to dismiss the 

LAD claim.

Plaintiff is a resident of ACP. In September 2016, through prior counsel, 

plaintiff filed an eight-count complaint against defendants, followed by a first-
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and second-amended complaint in December 2016. Plaintiff's allegations 

include malicious prosecution, breach of contract, tortious interference with 

easements, ouster, violations of the New Jersey Condominium Act (NJCA),

violations of the LAD, negligent property damage, and breach of fiduciary duty, 

among multiple other claims.

In February 2018, plaintiff's counsel filed a motion to be relieved as 

counsel. The judge granted that motion, and plaintiff proceeded pro se. In 

September 2018, defendants filed their motion for summary judgment, and in 

January 2019, after conducting oral argument, the judge granted the motion and 

rendered a thorough oral opinion.

On appeal, plaintiff raises the following points for our consideration1:

POINT I

Malicious Prosecution (harassment, emotional distress 

– plaintiff and wife death, etc.)[.]

POINT II

Breach of [C]ontract/[D]eclaratory Judgment 

(settlement term)[.]

1 Defendants ask us to dismiss plaintiff's appeal for failure to comply with the 

appellate rules. We decline to do so. We granted plaintiff's motion to accept 

his appellate brief "as is." Additionally, dismissal of an appeal is the most 

drastic sanction and should be cautiously utilized, see Crispin v. 

Volkswagenwerk A.G., 96 N.J. 336, 345 (1984). Dismissal is inappropriate

here.
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POINT III

Breach of an [I]mplied [C]ovenant of [G]ood [F]aith 

and [F]air [D]ealing[.]

POINT IV

Tortious [I]nterference [W]ith [E]njoyment of an 

[E]asement (Trespassing/ACP took away my 

membership rights)[.]

POINT V

Ouster (Trespassing/could not go to clubhouse)[.]

POINT IV

Tortious [I]nferference [W]ith [E]njoyment of an 

[E]asement (Trespassing)[.]

POINT VII

Ouster (Trespassing)[.]

POINT VIII

Tortious [I]nterference [W]ith [E]njoyment of an 

[E]asement (Pool)[.]

POINT IX

Breach of [NJCA], N.J.S.A. 46:8B-1 et seq. (Pool)[.]

POINT X

Violation of the [LAD] (Pool)[.]

POINT XI

Negligent Property Damage (Driveway/loss of 

magazines)[.]

POINT XII

Breach of [NJCA], N.J.S.A. 46:8B-1 et seq[.] 

(Driveway/loss of magazines)[.]
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POINT XIII

Breach of Master Deed and By-Laws, N.J.S.A. 46:8B1 et seq[.] (Roof)[.]

POINT XIV

Breach of [NJCA], N.J.S.A. 46:8B-14 et seq[.] 

(Roof)[.]

POINT XV

Breach of Master Deed and By-[L]aws. N.J.S.A. 46:8B1 et seq[.] (Roof)[.]

POINT XVI

Breach of [NJCA], N.J.S.A. 46:8B-1 et seq[.] 

(Elections)[.]

POINT XVII

Breach of Fiduciary Duty, N.J.S.A. 46:8B-1 et seq[.] 

POINT XVIII

Breach of the By-Laws, N.J.S.A. 46:8B-1 et seq[.]

POINT XIX

Breach of Fiduciary Duty, N.J.S.A. 48:8B-1 (SelfDealing/Sewage)[.]

Plaintiff amended his appeal to include the following contention, which we have 

renumbered:

[POINT XX]

[The judge abused his discretion when he granted 

plaintiff's counsel's motion to be relieved as counsel.]
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I.

We begin by addressing plaintiff's argument that the judge erred in 

granting his counsel's motion to be relieved. Plaintiff notes his numerous 

disagreements with assertions contained in his former counsel's certification. 

Defendants argue that the judge properly relieved plaintiff's counsel because 

there was "obvious friction between plaintiff and his counsel and a deterioration 

of the attorney[-]client relationship." We conclude that the judge did not abuse 

his discretion by granting plaintiff's attorney's motion to be relieved as counsel. 

See Jacob v. Pendel, 98 N.J. Super. 252, 255 (App. Div. 1967) (noting that "[t]he 

granting of [counsel's] leave by the court is generally in the discretion of the 

court").

Withdrawal is governed by Rule 1:11-2. In a civil action, once a trial date 

has been fixed an attorney may only "withdraw without leave of court . . . upon 

the filing of the client's written consent," among other things. R. 1:11-2(a)(2). 

Without the client's consent, counsel may only withdraw after giving notice to 

their client and with leave of court, and the withdrawal must be based on one of 

the permissible bases provided in the Rules of Professional Conduct (RPC). R.

1:11-2(a)(2); R.P.C. 1.16(b). Permissible reasons for terminating representation

provided in the RPC include if "withdrawal can be accomplished without 
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material adverse effect on the interests of the client" or if "the client insists upon 

taking action that the lawyer considers repugnant or with which the lawyer has

a fundamental disagreement[.]" R.P.C. 1.16(b)(1), (b)(4). 

Plaintiff's attorney asserted that being relieved as counsel would not have 

a materially adverse effect on plaintiff's interests because he filed his motion to 

be relieved during the discovery phase, where there would be ample time to 

retain counsel that is "just as competent, if not more so" to handle the case. 

Additionally, plaintiff's attorney and his firm "fundamentally disagree[d]" with 

plaintiff and his desired courses of action because the "firm has no experience 

in [condominium association law.]" Plaintiff and his attorney initially agreed 

that they would pursue a malicious prosecution claim against defendants; 

however, plaintiff soon demanded that they add eighteen additional claims to 

the complaint in areas of law that the attorney and his firm do not practice. 

Plaintiff's attorney "urg[ed] [p]laintiff to seek other counsel more familiar with 

condominium association law on numerous occasions," both in letters and 

meetings, but to no avail. We see no abuse of discretion by granting the motion, 

especially since the motion had been made well before the discovery end date,

the withdrawal did not have a materially adverse effect on plaintiff's interests,
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and there were clear fundamental disagreements between plaintiff and his 

counsel.

II.

We now turn to the order granting summary judgment, which we review 

under the same standard that governed the motion judge. Templo Fuente De 

Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J 189, 199 (2016). 

Summary judgment is appropriate where "the pleadings, depositions, answers to 

interrogatories and admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact challenged and that the 

moving party is entitled to a judgment or order as a matter of law." Ibid.

(quoting R. 4:46-2(c)). 

We view the evidence "in the light most favorable to the non-moving 

party" to determine whether it is "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). Although we "must 

accept as true all the evidence which supports the position of the party defending 

against the motion and must accord him . . . the benefit of all legitimate 

inferences which can be deduced therefrom," id. at 535 (quoting Lanzet v. 

Greenberg, 126 N.J. 168, 174 (1991)), "[c]onclusory and self-serving assertions 
10 A-2685-18T2

. . . are insufficient to overcome the motion." Sullivan v. Port Auth. of N.Y. & 

N.J., 449 N.J. Super. 276, 283 (App. Div. 2017) (quoting Puder v. Buechel, 183 

N.J. 428, 440-41 (2005)). "If the evidence is so one-sided that one party will 

prevail as a matter of law, summary judgment should be granted." New Gold 

Equities Corp. v. Jaffe Spindler Co., 453 N.J. Super. 358, 372 (App. Div. 2018).

Considering the judge's reliance on the District Court's reasoning in Curto

to grant summary judgment in favor of defendant on plaintiff's LAD claim,

which was subsequently reversed by the Third Circuit, we reverse only as to that 

claim. As to the remaining claims, we affirm for the reasons expressed in the 

judge's thorough and comprehensive oral opinion. We add the following 

remarks.

A. Malicious Prosecution

Plaintiff argues that he sufficiently proved that the 2014 lawsuit brought 

against him by Rose Hallum (Hallum) and the 2016 lawsuit brought against him 

by Jessica Schach (Schach), both Board secretaries, satisfied the requirements 

of malicious prosecution by ACP. Defendants argue that plaintiff did not satisfy 

his burden of proof that the litigation was initiated without probable cause. We 

affirm the judge's grant of summary judgment as to plaintiff's malicious 

prosecution claim because there was probable cause to institute the proceedings 
11 A-2685-18T2

and because Hallum and Schach agreed to dismiss their complaints with 

stipulations in their individual capacities.

Malicious prosecution arises when a person "recklessly institutes criminal 

proceedings without any reasonable basis[.]" Lind v. Schmid, 67 N.J. 255, 262 

(1975). To succeed on a claim of malicious prosecution, a plaintiff must 

establish: "(1) that the criminal action was instituted by the defendant against 

the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of 

probable cause for the proceeding, and (4) that it was terminated favorably to 

the plaintiff." Ibid. (citations omitted). "The essence of the cause of action is 

lack of probable cause, and the burden of proof rests on the plaintiff. The 

plaintiff must establish a negative, namely, that probable cause did not exist." 

Id. at 262-63.

There was sufficient probable cause for Hallum's harassment complaint 

against plaintiff. The judge noted that Hallum included "a police report, 

certifications, [and] a report of probable cause" along with her complaint. The 

judge also noted that although Hallum and Schach worked as Board secretaries, 

they agreed to dismiss their claims with stipulations in their individual 

capacities, and not in their capacity as employees of ACP or the Board. Because 
12 A-2685-18T2

ACP or the Board were not a party to the dismissal agreement, a malicious 

prosecution claim cannot be maintained against them. 

B. LAD

Plaintiff argues that the swimming pool schedule that set times for 

swimming based on gender violates the LAD. Plaintiff points to the Third 

Circuit's decision in Curto, 921 F.3d 405 (3d Cir. 2019), reversing the District 

Court's grant of summary judgment. In granting the LAD claim, the judge relied 

heavily on the District Court's analysis and decision. 

In Curto, the District Court was asked to determine whether ACP's rules 

segregating the use of the swimming pool by sex violated the Fair Housing Act 

(FHA). Curto v. A Country Place Condo. Ass'n, No. 16-5928, 2018 U.S. Dist. 

LEXIS 15394, at *10 (D.N.J. Jan. 31, 2018). The District Court granted 

summary judgment in favor of ACP on the plaintiff's FHA claim because "the 

gender-segregation schedule applies to men and women equally." Id. at *12.

The District Court dismissed plaintiff's LAD claim as moot because the court 

had already remanded the present case to the Superior Court, where the same 

pool policy was being challenged under LAD. Id. at *12-13. 

The Third Circuit reversed, holding that the rules enacted by ACP 

"discriminate[d] against women in violation of the FHA." Curto, 921 F.3d at 
13 A-2685-18T2

407. The swimming pool schedule permitted men to swim 32.5 hours of the 

week and permitted women to swim 33.5 hours of the week, with the remainder 

being nonsegregated swimming time. Id. at 409. However, the Third Circuit

was concerned with the way in which the hours were allocated; for example, 

"women are able to swim for only 3.5 hours after 5:00 p.m. onward on 

weeknights, compared to 16.5 for men." Id. at 410. The court explained that 

these sorts of restrictions "appear[] to reflect particular assumptions about the 

roles of men and women" which are impermissible under the Fourteenth 

Amendment. Id. at 410-11. Thus, even though ACP provided roughly the same 

amount of time to both genders, "the schedule discriminates against women 

under the FHA[.]" Id. at 411.

Disparate impact claims brought under the LAD mirror the analysis of 

disparate impact claims under the FHA. The New Jersey Supreme Court has 

"not suggest[ed] that the disparate impact analysis under the LAD would be any 

different from a disparate impact analysis under case law construing [the FHA]." 

In re Adoption of 2003 Low Income Housing Tax Credit Qualified Allocation 

Plan, 369 N.J. Super. 2, 42 (App. Div. 2004). Therefore, "[t]here is no reason 

to believe that the disparate impact analysis [under the FHA] would be any 

different under the LAD." Id. at 42-43. The Third Circuit in Curto noted that 
14 A-2685-18T2

"[w]here a regulation or policy facially discriminates on the basis of the 

protected trait, in certain circumstances it may constitute per se or explicit 

discrimination because the protected trait by definition plays a role in the 

decision-making process." Curto, 921 F.3d at 410 (citation omitted). And in 

such a case, a showing of malice is not required when "a plaintiff demonstrates 

that the challenged action involves disparate treatment through explicit facial 

discrimination" because "the focus is on the explicit terms of the 

discrimination." Ibid. (citations omitted). 

The judge relied on the District Court's reasoning in Curto that the 

swimming pool schedule violated the FHA to find that the schedule does not 

result in disparate treatment under the LAD. The judge was "satisfied and 

persuaded by [the District Court's] opinion that . . . for the reasons stated in that 

opinion, there is no separate treatment. There is no disparate treatment . . . on 

its face." In light of the reversal, the judge's reliance on the District Court's 

analysis is misplaced, and summary judgment on the LAD claim here was 

erroneously granted. 

C. Negligent Property Damage to Plaintiff's Garage

Plaintiff argues that ACP is liable for the damage to his garage and 

destruction of memorabilia because of flooding that occurred after United 
15 A-2685-18T2

Paving Contractors (UPC) resurfaced his driveway. Plaintiff argues that he does 

not need to provide an expert report in this case because "[i]f an expert is needed, 

it is ACP['s] decision." Defendants argue that the judge properly granted their 

motion for summary judgment because UPC is an independent contractor for 

which ACP is not liable, and plaintiff failed to provide an expert report. Because 

it was necessary for plaintiff to file an expert report regarding driveway 

resurfacing to show UPC's alleged negligence, and because UPC was an 

independent contractor, we affirm the judge's grant of summary judgment as to 

these claims.

Employers are not liable for the negligent actions of the independent 

contractors except in cases where the work performed by the independent 

contractor is inherently or abnormally dangerous. Bahrle v. Exxon Corp., 145 

N.J. 144, 156-57 (1996) (noting that liability when performing inherently or 

abnormally dangerous activities "stems from a non-delegable duty to exercise 

reasonable care"). An independent contractor is "a person 'who, in carrying on 

an independent business, contracts to do a piece of work according to his own 

methods without being subject to the control of the employer as to the means by 

which the result is to be accomplished but only as to the result of the work.'" Id.
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at 157 (quoting Wilson v. Kelleher Motor Freight Lines, Inc., 12 N.J. 261, 264 

(1953)). 

"In general, expert testimony is needed where the factfinder would not be 

expected to have sufficient knowledge or experience and would have to 

speculate without the aid of expert testimony." Torres v. Schripps, Inc., 342 

N.J. Super. 419, 430 (App. Div. 2001) (citing Kelly v. Berlin, 300 N.J. Super. 

256, 268 (App. Div. 1997)). "A witness must be shown to have certain skills, 

knowledge or training in a technical area in order to be qualified to give expert 

testimony." Ibid. (citing N.J.R.E. 702).

The judge properly noted that plaintiff cannot prevail on these claims 

because he "has not served any expert reports stating that [UPC] deviated from 

any standards of care that proximately caused plaintiff's damages[.]" A typical 

juror would not have sufficient knowledge or experience to know whether UPC 

negligently resurfaced plaintiff's driveway without expert testimony. Nor can 

ACP be held liable for UPC's negligence if there was proof that they were 

negligent in their resurfacing the driveway. UPC was an independent contractor 

hired by ACP to perform driveway resurfacing, work that could not be 

categorized as inherently or abnormally dangerous.
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Affirmed in part, reversed in part, and remanded. We do not retain 

jurisdiction.