SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4636-15T4

 A-4637-15T4

MAZEL, LLC and DORCA, INC.

t/a RAMADA INN OF TOMS RIVER,

Plaintiffs-Appellants,

v.

TOWNSHIP OF TOMS RIVER, 

DOVER WOODS HEALTHCARE CENTER

and EREZ HEALTHCARE REALTY 

COMPANY, LLC,

Defendants-Respondents.

________________________________

DOVER PARKADE, LLC,

Plaintiff-Appellant,

v.

DOVER WOODS HEALTHCARE CENTER and

EREZ HEALTHCARE REALTY COMPANY,

LLC,

Defendants-Respondents.

________________________________

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4636-15T4

MAZEL, LLC and DORCA, INC.

t/a RAMADA INN OF TOMS RIVER,

Plaintiffs-Appellants,

v.

DOVER WOODS HEALTHCARE CENTER 

and EREZ HEALTHCARE REALTY 

COMPANY, LLC,

Defendants-Respondents.

__________________________________

Argued May 9, 2018 – Decided July 10, 2018

Before Judges Nugent, Currier, and Geiger.

On appeal from Superior Court of New Jersey, 

Law Division, Ocean County, Docket Nos. 

L-2619-11, L-3477-09, and L-3505-12.

Alexis L. Gasiorowski argued the cause for 

appellants (Gasiorowski and Holobinko, 

attorneys; Alexis L. Gasiorowski, on the 

briefs).

Edward F. Liston, Jr., argued the cause for 

respondents Dover Woods Health Care Center and 

Erez Health Care Realty Company, LLC.

R. Garry Mundy, attorney for respondent 

Township of Toms River, joins in the brief of 

Dover Woods Health Care Center and Erez Health 

Care Realty Company, LLC. 

PER CURIAM

In these related actions, plaintiffs, Mazel, LLC and Dorca, 

Inc. t/a Ramada Inn of Toms River, appeal from the December 23, 

2013 and March 19, 2014 orders granting summary judgment in favor 
3 A-4636-15T4

of defendants Dover Woods Healthcare Center and Erez Healthcare 

Realty Company, Inc. We affirm.

I.

The Zoning Action

In 1983, an applicant unrelated to these parties filed a

zoning permit application seeking to build a "retirement hotel" 

for senior citizens. The application sought a conditional use of 

the specific parcel of land located in a Rural Highway Business 

(RHB) zone to operate as a hotel known as the Dover Retirement 

Hotel (the facility). The applicant intended to seek a residential 

health care license for the facility and comply with all State 

Department of Health standards. Later that year, the Dover 

Township1 Planning Board (the Board) passed a resolution granting 

the request for a conditional use permit.

In accordance with the resolution, the applicant constructed

a 136-unit hotel containing 240 beds. Although the resolution 

specified the facility would be built to hotel specifications, it 

also required the facility to be licensed by the State and comply

 

1 Dover Township is now known as the Township of Toms River (the 

Township).
4 A-4636-15T4

with N.J.A.C. 8:43-1.1 to -15.8.2 Upon completion, the facility 

was licensed as a residential health care facility by the State 

and remains today a licensed residential health care facility.3

In 1991, the Township amended its zoning ordinances and the 

RHB zone's permitted uses were expanded to include both "medical 

service facilities" and "hotels." Toms River, N.J., Code §§ 348-

10.27(A)(15) and 348-10.27(A)(17). Prior to this amendment, 

hotels were permitted in the RHB zone as conditional uses only and 

medical service facilities were neither permitted uses nor 

conditional uses.

In 1999, Erez Healthcare Realty Company, LLC, purchased the 

Dover Retirement Hotel and renamed the facility Dover Woods 

Healthcare Center. In the ensuing years, numerous complaints were 

made to the Township regarding the conduct of the facility's 

residents. In 2009, the Township filed a complaint against 

 

2 This chapter of the Code sets forth the regulations for the 

licensure of residential health care facilities by the State 

Department of Health and Senior Services. N.J.A.C. 8:43-1.1.

3 The facility was formerly licensed and regulated by the New 

Jersey Department of Health and Senior Services. In 2005, the 

Department of Community Affairs (the DCA) took over licensure and 

oversight of some residential health care facilities, including 

Dover Woods. 
5 A-4636-15T4

defendants alleging a public nuisance and seeking injunctive 

relief. The litigation was later settled.4

Plaintiffs are the owners of a Ramada Inn that is located 

next to Dover Woods. In 2012, plaintiffs sent a letter to the DCA 

requesting an investigation of the facility. The DCA responded, 

finding that the information provided "did not evidence any 

violations of the licensure code standards that govern Dover 

Woods." In its letter, the DCA described Dover Woods as

one of the largest facilities of its kind in 

the State of New Jersey that provides 

permanent residence for up to (240) physically 

and mentally disabled tenants appropriately 

discharged from area hospitals and the State's 

mental health system that are in need of 

affordable housing to prevent homelessness and 

RHCF code-authorized health maintenance and

monitoring services to facilitate independent 

living in the community.

The agency advised the facility had recently undergone a 

licensing evaluation and remained compliant with regulations. The 

letter further noted: "The Dover Woods licensee is required under 

law to operate an 'open' facility. This licensee is not legally 

authorized to confine residents in the facility or restrict their 

movements in the community."

 

4 In the settlement agreement, defendants agreed to install 

lighting, surveillance cameras monitoring the facility's entrance, 

and a new chain link fence between the facility and Ramada hotel 

properties.
6 A-4636-15T4

Plaintiffs filed a complaint in lieu of prerogative writs

against the Township and defendants, alleging the facility was in 

violation of the Township's zoning ordinances and operating as a 

non-permitted use, as the original zoning approval in 1983 as a 

conditional use no longer existed. Defendants answered the 

complaint and Erez Healthcare filed a counterclaim for malicious 

prosecution. After the completion of discovery, defendants5 filed 

a motion for summary judgment, which the trial court granted as 

to counts one through seven of the complaint.6 In a comprehensive 

twenty-seven page written decision, the motion judge noted: 

both "medical services facilities" and 

"hotels" now constitute permitted uses within 

the RHB Zone in Toms River. For this reason, 

the court [finds] that even if Dover Woods 

does not meet the definition of a "medical 

services facility," it may still constitute a 

permitted use within the RHB Zone if it meets 

the definition for a hotel.

The judge found "[t]he undisputed record evidence establishes 

that Dover Woods meets the zoning ordinance definition of a hotel 

. . . [and] that Dover Woods' status as a residential health care 

facility does not affect its status as a hotel." He noted the

Board understood in 1983 that the retirement hotel "would not 

 

5 The Township did not join in the motion for summary judgment.

6 Count eight alleged a breach of the settlement agreement 

resolving the prior litigation and requested the court enforce 

that agreement.
7 A-4636-15T4

operate in the traditional notion of a hotel." The proposal before 

the Board indicated the facility would operate as a "residential 

health care facility," and the resolution specifically stated the 

facility would be licensed by the State of New Jersey under the 

provisions governing residential health care facilities.

The judge further found Dover Woods was operating as a medical 

service facility as defined under the 1991 amendments to the

Township zoning ordinances. He stated there was "no meaningful 

difference between a 'residential health care facility' such as 

Dover Woods and a 'long-term residential health care facility'" 

and found Dover Woods "substantially conforms to the ordinance 

definition of long-term residential health care facilities." 

A December 23, 2013 order dismissed counts one through seven 

of plaintiffs' complaint as to all defendants. The judge found

Dover Woods was a permitted use and not in violation of any of the 

conditions imposed by the Board in its 1983 resolution granting 

approval of the facility as a conditional use. A subsequent motion 

for reconsideration was denied on February 25, 2014.7

 

7 Plaintiffs' appeal of this order was dismissed as interlocutory 

in Mazel, LLC v. Twp. of Toms River, No. A-3344-13 (App. Div. Mar. 

31, 2016). The parties subsequently executed a stipulation of 

dismissal with prejudice as to the counterclaim. The judge 

reserved decision on count eight in the December 23, 2013 order. 

The record does not reflect the ultimate disposition of that count 

of the complaint.
8 A-4636-15T4

II.

The Nuisance Action

In September 2009, plaintiffs filed a complaint8 against 

defendants alleging the facility was a danger to its residents and 

had become a public and private nuisance because of poor 

supervision, a lack of security measures, and a disregard for

state health and safety regulations, which continuously interfered

with the operation of the Ramada Inn. Specifically, plaintiffs 

alleged frequent occurrences of residents loitering on and 

defiling Ramada property, accosting its guests, and trespassing

inside the hotel. 

After discovery, defendants filed a motion for summary 

judgment. We discern the facts from that record. Numerous 

complaints were recorded of facility residents actively 

hallucinating, throwing furniture, and screaming at all hours of 

the night without any intervention from facility staff. Local 

police officers testified in depositions to responding to hundreds 

of phone calls from facility staff requesting assistance for 

violent residents or residents having psychotic episodes, frequent

9-1-1 phone calls made by residents calling and hanging up, and 

 

8 In August 2011, plaintiff Dover Parkade, LLC, filed a complaint 

against defendants with similar allegations. The trial court 

consolidated the complaints in January 2013.
9 A-4636-15T4

countless calls from local businesses and citizens complaining of 

residents having psychotic episodes outside of the facility and 

screaming and yelling inside and outside of their businesses. 

Robert N. Davison, a licensed counselor and former Chairman 

of Governor Codey's task force on mental health, spent fifty-one 

hours at the facility, posing as a homeless person and documenting 

his experience. He testified residents were permitted to roam 

freely within and outside of the facility. Davison described the 

building being in gross disrepair inside and out, garbage and beer 

cans littered the front lawn, residents experienced loud psychotic 

episodes without any staff assistance, smoked cigarettes inside 

the facility, and, on a number of occasions, walked through the 

Ramada parking lot on the way to other locations. 

Joanne Kotler, the facility's administrator, testified at her 

deposition that regulations prevented the facility from

immediately evicting or controlling residents' actions. The 

facility also could not force residents to take their prescribed 

medications.

After hearing oral argument, a second trial judge granted 

summary judgment in favor of defendants. In a March 19, 2014
10 A-4636-15T4

written decision,9 the judge concluded that plaintiffs could not 

sustain an action for nuisance. The court noted the alleged harm 

from the facility was not caused by the specific use of defendant's 

property but rather by independent third parties over whom 

defendants had no control. The judge referred to N.J.A.C. 5:27A14.2 and its specific provisions preventing Dover Woods from 

confining its residents in the facility or restricting their 

movements in the community. Because there was no special 

relationship demonstrated between the parties, defendant had no 

duty to control the conduct of their residents and, therefore,

could not be held vicariously liable for the residents' actions.

III.

We conduct a de novo review of both the zoning and nuisance 

actions, and review the grant of summary judgment under the same 

standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l 

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). We 

must determine whether there are any genuine issues of material 

fact when the evidence is viewed in the light most favorable to 

the non-moving party. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 

(2012). Summary judgment must be granted "if the pleadings, 

 

9 After plaintiffs appealed this decision, we dismissed it as 

interlocutory in Mazel, L.L.C. v. Dover Woods Healthcare Ctr., No. 

A-3798-13 (App. Div. Mar. 31, 2016). Defendants subsequently 

dismissed their counterclaim.
11 A-4636-15T4

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." R. 4:46-

2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 

520, 528-29 (1995). To defeat summary judgment, the non-moving 

party must bring forth "evidence that creates a 'genuine issue as 

to any material fact challenged.'" Brill, 142 N.J. at 529 (quoting 

R. 4:46-2).

A.

The Zoning Action

Plaintiffs argue on appeal the court erred in finding Dover 

Woods was a medical service facility and, therefore, a permitted 

use in the RHB zone. Notably, plaintiffs do not address the 

court's concurrent ruling that Dover Woods met the definition of 

a hotel, also a permitted use in the zone.

A hotel has been a permitted use in the RHB zone since 1991. 

Toms River, N.J., Code § 348-10.27(A)(17). A hotel10 is defined 

as a "building which contains 10 or more units of dwelling space 

and which is kept, used, maintained, advertised as, or held out 

to be a place where sleeping or dwelling accommodations are 

 

10 This definition was most recently amended on October 28, 2008.
12 A-4636-15T4

available to transient guests." Toms River, N.J., Code § 348-2.3 

(emphasis added).

In passing the 1983 resolution, the Board specifically found 

the applicant intended to construct a 136-unit hotel, and the 

facility was built to hotel specifications. Dover Woods currently 

has the same number of rooms and beds as when built, far surpassing 

the required number of rooms to constitute a hotel under the 

Township ordinance. As a hotel is a permitted use within the 

pertinent zone, summary judgment was properly granted to 

defendants on that ground alone.

The Township ordinances also support the conclusion that 

Dover Woods is a permissible use in the RHB zone as "[m]edical

service facilities, including but not limited to health care 

facilities, continuing-care retirement communities and 

developments[,] and long-term residential health care facilities" 

are permitted uses in the that zone. Toms River, N.J., Code §

348-10.27(A)(15). Under the applicable definitions, Dover Woods 

qualifies as both a health care facility and a long-term 

residential health care facility. See Toms River, N.J., Code §

348-2.3.

We are satisfied there was sufficient credible evidence in 

the record to support the trial judge's findings that Dover Woods 

is a permitted use, thus requiring the grant of summary judgment 
13 A-4636-15T4

to defendants. We, therefore, can discern no error in the denial 

of the motion for reconsideration. "[A] trial court's 

reconsideration decision will be left undisturbed unless it 

represents a clear abuse of discretion." Pitney Bowes Bank, Inc. 

v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 

2015) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 

283 (1994)).

B.

The Nuisance Action

Plaintiffs argue on appeal the trial judge erred in finding 

there was no special relationship between defendants and their 

residents to impose vicarious liability. They contend the 

governing regulations grant complete control to Dover Woods over 

its residents who can be discharged from its facility at any time.

We disagree.

"A cause of action for private nuisance derives from the 

defendant's 'unreasonable interference with the use and enjoyment' 

of the plaintiff's property." Ross v. Lowitz, 222 N.J. 494, 505 

(2015) (quoting Sans v. Ramsey Golf & Country Club, Inc., 29 N.J.

438, 448 (1959)). In order to establish a claim for nuisance, "it 

must be shown that 'there has been an unreasonable, unwarranted 

or unlawful use by a person of [another's] real property which is 

resulting in a material annoyance, inconvenience or hurt.'" State, 
14 A-4636-15T4

Dep't of Envtl. Prot. v. Exxon Corp., 151 N.J. Super. 464, 482

(Ch. Div. 1977) (quoting Cherry Hill Twp. v. N.J. Racing Comm'n, 

131 N.J. Super. 125 (Law Div.), aff'd, 131 N.J. Super. 482, 483

(App. Div. 1974)).

Two types of conduct can give rise to nuisance claims: 

affirmative acts and failures to act while under a duty to do so. 

See Ross, 222 N.J. at 507-08 (citing Birchwood Lakes Colony Club, 

Inc. v. Borough of Medford Lakes, 90 N.J. 582, 591-92 (1982)).

However, "absent a special relationship, there is no duty to 

control a third person's conduct." Champion ex rel. Ezzo v. 

Dunfee, 398 N.J. Super. 112, 122 (App. Div. 2008); see also

Restatement (Second) of Torts § 315 (Am. Law Inst. 1965)(the 

Restatement). 

When analyzing nuisance claims we turn to the principles 

articulated in the Restatement. Pursuant to § 315,

[t]here is no duty so to control the conduct 

of a third person as to prevent him from 

causing physical harm to another unless

(a) a special relation exists 

between the actor and the third 

person which imposes a duty upon the 

actor to control the third person's 

conduct, or

(b) a special relation exists 

between the actor and the other 

which gives to the other a right to 

protection.
15 A-4636-15T4

"The existence of a legal duty is a question of law to be decided 

by the court, rather than the jury." Champion, 398 N.J. Super. 

at 117 (citing Wang v. Allstate Ins., 125 N.J. 2, 15 (1991)). If 

a special relationship does not exist between the parties, 

plaintiffs' claims must fail as all of the alleged interference 

with the use and enjoyment of its land was attributed to 

independent third parties.

In assessing whether defendants had a duty to control their 

residents, therefore creating a special relationship and vicarious

liability, we turn to the regulatory framework governing Dover 

Woods. As established above, Dover Woods is a residential health 

care facility licensed and regulated by the DCA. The standards 

for licensure of such facilities are set forth in N.J.A.C. 5:27A1.1 to -19.1.1.

N.J.A.C. 5:27A-14.2 delineates the rights of each resident 

admitted to these facilities. These rights include assistance in 

obtaining medical care and the refusal of medication and treatment 

after being informed of the effects of such actions. Ibid. 

Residents are allowed to be outside the facility, are not required 

to go to bed and have the right to be outside their bedrooms.

Ibid. Other than in the case of an emergency, a resident may be

transferred or discharged only for medical 

reasons or for his or her welfare or that of 

other residents upon the written order of the 
16 A-4636-15T4

resident's physician, advanced practice 

nurse, or physician assistant, who shall 

document the reason for the transfer or 

discharge in the resident's record, or for 

nonpayment for the resident's stay, or for 

repeated violations of the facility's written 

rules and regulations after being advised of 

them in writing. . . .

i. If a transfer or discharge on a 

non-emergency basis is requested by 

the facility, the resident or, in 

the case of an adjudicated mentally 

incompetent resident, the next of 

kin and/or sponsor and/or guardian, 

shall be given at least 30 days 

advance notice in writing of such 

transfer or discharge.

[N.J.A.C. 5:27A-14.2 (4) and (4)(i).]

It is evident Dover Woods is statutorily prohibited from 

exercising the degree of control typically necessary to establish 

a special relationship. Residents must be given notice of thirty 

days and afforded a hearing prior to any discharge. And Dover 

Woods has no control over its residents outside of the facility. 

The governing regulations prevent the facility from taking the 

affirmative steps urged by plaintiffs to control their residents.

Without such control, plaintiffs have not demonstrated a special 

relationship exists between defendants and their residents. As a 

result, defendants cannot be held vicariously liable for the 

actions of their residents and plaintiffs cannot support their 
17 A-4636-15T4

cause of action.11 Therefore, the trial judge properly granted

summary judgment.

Affirmed.

 

11 In light of our decision, we need not address plaintiffs' 

remaining arguments.