UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

FRANK MARENBACH and

DEBRA MCKIBBIN,

 Plaintiffs,

v.

CITY OF MARGATE,

 Defendant.

CIVIL NO. 11-3832(NLH)(AMD)

OPINION

Appearances:

GERARD J. JACKSON 

1500 NORTH KINGS HIGHWAY 

SUITE 205 

CHERRY HILL, NJ 08034 

On behalf of plaintiffs

ROBERT P. MERENICH 

GEMMEL, TODD & MERENICH, P.A. 

767 SHORE ROAD 

P.O. BOX 296 

LINWOOD, NJ 08221 

On behalf of defendant

HILLMAN, District Judge

This case concerns plaintiffs’ claims that they suffered

damages as a result of plaintiff Frank Marenbach’s fall on the

street in Margate City, New Jersey. Presently before the Court is

defendant’s motion for summary judgment, as well as defendant’s

request for sanctions against plaintiffs. For the reasons

expressed below, defendant’s summary judgment motion will be

granted, and defendant’s request for sanctions shall be denied

without prejudice.

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BACKGROUND

On July 4, 2009, plaintiff Frank Marenbach tripped and fell

in the street on Ventnor Avenue in Margate City, New Jersey. 

Plaintiff claims that he severely and permanently injured his left

ankle, and that his injury has required surgery. Plaintiff claims

that Margate City controls Ventnor Avenue, and is liable for

failing to protect him from a dangerous condition. Plaintiff’s

wife, Debra McKibbin, has filed a claim for loss of consortium.

Defendant Margate City (hereinafter “Margate”) has moved for

summary judgment in its favor on plaintiffs’ claims because

plaintiffs failed to properly comply with the New Jersey Tort

Claims Act, and because it does not own or control Ventnor Avenue. 

Margate has also moved for attorney’s fees and costs pursuant to

New Jersey’s Frivolous Litigation statute because plaintiffs know

that Atlantic County, and not Margate, owns and controls Ventnor

Avenue. Plaintiffs have opposed Margate’s motion on all bases.

DISCUSSION

A. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28

U.S.C. § 1332 because there is complete diversity of citizenship

between the parties and the amount in controversy exceeds $75,000.

B. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied

that the materials in the record, including depositions,

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documents, electronically stored information, affidavits or

declarations, stipulations, admissions, or interrogatory answers,

demonstrate that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R.

Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if, under the governing substantive

law, a dispute about the fact might affect the outcome of the

suit. Id. In considering a motion for summary judgment, a

district court may not make credibility determinations or engage

in any weighing of the evidence; instead, the non-moving party's

evidence “is to be believed and all justifiable inferences are to

be drawn in his favor.” Marino v. Industrial Crating Co., 358

F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met

this burden, the nonmoving party must identify, by affidavits or

otherwise, specific facts showing that there is a genuine issue

for trial. Id. Thus, to withstand a properly supported motion

for summary judgment, the nonmoving party must identify specific

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facts and affirmative evidence that contradict those offered by

the moving party. Anderson, 477 U.S. at 256-57. A party opposing

summary judgment must do more than just rest upon mere

allegations, general denials, or vague statements. Saldana v.

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

C. Analysis

1. Margate’s Motion for Summary Judgment

As a threshold matter, in order to maintain their suit

against Margate, plaintiffs must comply with New Jersey’s Tort

Claim Act (“NJTCA”). The NJTCA provides, “No action shall be

brought against a public entity or public employee under this Act

unless the claim upon which it is based shall have been presented

in accordance with the procedures set forth in this chapter.” 

N.J.S.A. 59:8-3. A tort claim notice “must be served upon the

public entity within 90 days of the accrual of the claim, and

failure to do so will forever bar the claimant from recovering

against a public entity or public employee.” N.J.S.A. 59:8-8. 

The accrual date under the NJTCA is generally the date on which

the alleged tort is committed. Beauchamp v. Amedio, 751 A.2d

1047, 1050 (N.J. 2000).

When prior counsel for plaintiffs attempted to comply with

the notice requirements of the NJTCA in 2009, the matter was

brought before the New Jersey Superior Court Appellate Division,

which issued an opinion detailing the procedural history of the

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case. Because the procedural history of the case is directly

relevant to the resolution of Margate’s motion, the relevant

portion of the Appellate Division’s opinion will be restated here:

According to his submissions, plaintiff, a

vacationer from Pennsylvania, tripped and fell on the

pavement on Ventnor Avenue in Margate on July 4, 2009.

The fall apparently occurred on the east side of Ventnor

Avenue at its intersection with Jefferson Street, a

short distance from the curb. Plaintiff contends that

the street location was in a dangerous condition. As a

result of his fall, plaintiff injured his ankle and

received medical treatment.

Plaintiff retained an attorney licensed in

Pennsylvania to pursue recovery for his personal

injuries. On September 30, 2009, the Pennsylvania

attorney served a notice of tort claim upon the City of

Margate (“City”), mistakenly assuming that the City was

responsible for maintaining Ventnor Avenue. The notice

was served upon the City within the ninety days

prescribed by N.J.S.A. 59:8–8. The only other public

entity that plaintiff apparently served with a notice

was the State Department of Transportation.

The City's claims administrator, Scibal Associates,

Inc. (“Scibal”), investigated plaintiff's claim and

denied liability, advising him that he had served the

wrong public entity. In a letter to plaintiff's

Pennsylvania attorney dated January 14, 2010, Scibal

advised him that the City has “no ownership, control

and/or responsibility” over Ventnor Avenue. The letter

further stated that the public entity “responsible for

Ventnor Avenue is the County of Atlantic.” In fact,

Ventnor Avenue is officially designated as Atlantic

County Road 629.

Plaintiff ultimately filed a tort claims notice

with Atlantic County on February 2, 2010, almost seven

months after his accident. The County denied liability

because the notice was untimely. Plaintiff then filed a

motion in the Law Division seeking leave to file a late

notice, arguing that extraordinary circumstances

warranted such relief.

Plaintiff supported his request with an affidavit

from his Pennsylvania attorney. The attorney asserted

that he was personally familiar with Ventnor Avenue

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where it passes through Margate, noting that he owns

property nearby in Atlantic City and has driven on

Ventnor Avenue on numerous occasions. Despite his

asserted familiarity with the road, the attorney claimed

that he had never previously observed signs indicating

that Ventnor Avenue is a County highway. He alleged that

he had “no reasonable means of knowing,” during the

statutory ninety-day notice period, that Ventnor Avenue

is a County highway.

The County opposed plaintiff's motion and his

contention of extraordinary circumstances. It reiterated

that Ventnor Avenue is a County road, and refuted the

contention of plaintiff's Pennsylvania attorney that the

street is not clearly marked as such. As corroboration,

the County submitted photographs of standard,

pentagonal-shaped signs posted in Margate, indicating

“Atlantic County 629.” According to the County's

submission, such a sign is posted on one of the main

thoroughfares into and out of the City, as well as at

the intersection of Jasper and Ventnor Avenue eastbound.

The County also argued that it would be

substantially prejudiced if the court granted plaintiff

leave to file a late claim concerning his July 2009

accident. It noted that the exact location of

plaintiff's fall, and the specific nature of the alleged

dangerous condition in the roadway, were still unclear

more than a year after the accident. In the meantime,

the road's condition could have been altered by weather,

repairs, or maintenance activities.

Upon considering these arguments and submissions,

Judge Nelson Johnson denied plaintiff's motion. In his

oral opinion, the judge concluded that plaintiff

“clearly was chargeable with knowing that this [roadway]

was a County highway, failed to bring the notice before

the County within the [statutorily-required] 90 days,

[and] failed to move [to file a late claim] until many

months afterwards[.]”

Marenbach v. County of Atlantic, 2001 WL 1675270, 1-2 (N.J. Super.

Ct. App. Div. May 5, 2011). The Appellate Division upheld the

lower court’s decision, explaining, “The failure of plaintiff and

his Pennsylvania attorney to appreciate that Ventnor Avenue is a

County road until almost seven months after the accident does not

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amount to ‘extraordinary circumstances.’ The street is plainly

marked as a County road by signs posted within the City of

Margate. Moreover, plaintiff offers no reason why he could not

have easily ascertained the road's status by consulting a map or

an internet site, or through other diligent inquiry, within the

ninety-day deadline.” Id. at *2. The Appellate Division also

found that “the delay in providing notification to the County is

consequential. It is entirely conceivable that the condition of

the street had changed from the time of plaintiff's summer mishap

on the Fourth of July to the time of his service of notice upon

the County the following winter.” Id. 

This recitation of plaintiffs’ attempts to sue Atlantic

County for his injury is directly relevant to plaintiffs’ case

here because plaintiffs are back where they started, again

attempting to hold Margate liable for the alleged dangerous

condition of Ventnor Avenue. Margate argues, among other things,

that plaintiffs should not be able to do so because (1) plaintiffs

failed to comply with the NJTCA by not completing a required 17-

page Tort Claims Questionnaire, which Margate sent to plaintiffs’

former counsel twice, on October 5, 2009 and November 3, 2009, 

and which requested detailed information about the exact location

of the accident and resulting injuries, (2) Ventnor Avenue is not

“owned or controlled by” by Margate, and (3) plaintiffs have not

demonstrated that Margate had constructive knowledge of the

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alleged dangerous condition on Ventnor Avenue. 

Plaintiffs respond that Margate should be estopped from

arguing about their non-compliance with the questionnaire because

even if they answered the questions, Margate’s position from the

beginning was that it was not responsible for plaintiffs’

injuries, so the issue of their failure to complete the

questionnaire is irrelevant. Plaintiffs further argue that even

though they concede that Margate does not own Ventnor Avenue, it

is a disputed fact as to whether Margate “controlled” Ventnor

Avenue such that it can be held liable for plaintiffs’ injuries

sustained as a result of the dangerous condition. Plaintiffs also

contend that a jury must decide whether Margate had constructive

knowledge of the dangerous condition.1

Considering the “guiding principle” that “immunity from tort

liability is the general rule and liability is the exception” for

public entities, see Polzo v. County of Essex, 960 A.2d 375, 380-

The Court notes that plaintiffs did not file a response to 1

Margate’s statement of material facts not in dispute, and they

did not provide their own statement of material facts not in

dispute. Under Local Civil Rule 56.1, “The opponent of summary

judgment shall furnish, with its opposition papers, a responsive

statement of material facts, addressing each paragraph of the

movant's statement, indicating agreement or disagreement and, if

not agreed, stating each material fact in dispute and citing to

the affidavits and other documents submitted in connection with

the motion; any material fact not disputed shall be deemed

undisputed for purposes of the summary judgment motion.” The

Court does not base its decision on the application of this rule,

although the acceptance of Margate’s statement of facts as

undisputed further supports the grant of summary judgment in

Margate’s favor.

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81 (N.J. 2008) (citations omitted), plaintiffs cannot survive

Margate’s summary judgment motion. Even accepting as true

plaintiffs’ argument that their failure to complete the Tort

Claims Questionnaire does not invalidate their notice to Margate

under the NJTCA, plaintiffs cannot demonstrate disputed material

facts regarding Margate’s “control” over Ventnor Avenue or

Margate’s constructive knowledge of the alleged dangerous

condition.

a. Plaintiffs cannot establish that Margate “controls”

Ventnor Avenue

The NJTCA defines “public property” as property that is

“owned or controlled by the public entity.” N.J.S.A. 59:4-1c. 

Regulatory control is insufficient to establish control within the

meaning of the Act. Posey v. Bordentown Sewerage Authority, 793

A.2d 607, 614 (N.J. 2002) (citations omitted). Constructive or

joint-constructive possession, however, may be sufficient. Id. 

Constructive possession is based on an entity’s “conduct with

regard to the item in question,” and “there is a considerable

degree of latitude within which courts may . . . . expand the

legal fiction of constructive possession in order to achieve the

ends of justice.” Id. (citations omitted). 

For example, in Posey, the New Jersey Supreme Court was

tasked for the first time to address the NJTCA’s meaning of

“control.” There, the court held “that possessory control is

satisfied where a public entity treats private property as its own

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by using it for public purposes.” Id. (explaining that the

public entities treated the pond as if they owned it by using it

for storm-water drainage and by maintaining at least some of the

adjacent land, thus making it an integral part of the property of

the public entities). 

In contrast, in Dickson v. Township of Hamilton, 946 A.2d

617, 622 (N.J. Super. Ct. App. Div. 2008), the plaintiff was

injured on Route 322 when her car hit black ice, slid off the road

and hit a tree. Plaintiff claimed that a dangerous roadway

condition on Route 322 caused her accident. She sued both

Hamilton Township and the State of New Jersey. The State owned

Route 322, but plaintiff claimed that the Township could be held

liable for “controlling” it because the Township's police

department exercised law enforcement responsibilities over the

portion of Route 322 where the accident occurred. 

The court found that the Township could not be attributed

with control over the stretch of Route 322 within its territorial

boundaries because the Township’s protective police patrol of the

highway did not establish its “control” of the State road. 

Dickson, 946 A.2d at 622 (citation omitted). The Court noted, 

“Nothing in the legislative history [of the Act] suggests that a

public entity is liable for injuries sustained by virtue of a

dangerous condition existing on the property of another,” and

absent “possessory control consistent with property law,” the

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Township’s actions did not evidence a basis for liability under

the “own or control” section of the NJTCA. Id. (citing Posey, 793

A.2d at 614) (other citations omitted). 

Here, plaintiffs rely on the following evidence to prove

their position that Margate has possessory control over Ventnor

Avenue: (1) Atlantic County pays Margate to remove snow and clean

Ventnor Avenue; and (2) Margate police officers patrol the street

and enforce parking and moving violations on Ventnor Avenue, and

Margate splits the fees from those activities with Atlantic

County. 

This evidence is insufficient to establish that Margate has

possessory control over Ventnor Avenue to hold it liable for

plaintiffs’ injuries. With regard to the Margate police activity

on Ventnor Avenue, Dickson v. Township of Hamilton, 946 A.2d 617,

622 (N.J. Super. Ct. App. Div. 2008), cert. denied, 957 A.2d 1170

(N.J. 2008), discussed above, squarely rejects plaintiffs’

argument that protective police patrol of the street establishes

Margate’s “control” of the County road.

The fact that Atlantic County pays Margate to remove snow

from Ventnor Avenue and perform weekly street cleaning services on

Ventnor Avenue is also insufficient to establish “control” under

the circumstances of this case. Although the process of snow

removal and street cleaning may contribute to a deteriorated

condition of the street, there is no evidence that Margate

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regularly inspected the condition of the street, or that it was

responsible for repairing the condition of the road that may have

been affected by its snow removal and cleaning activities.

Moreover, even if Margate were under contract with Atlantic

County to regularly inspect the condition of the road and make

repairs to prevent dangerous conditions on it, it is questionable

whether that would cause Margate to have a possessory interest in

Ventnor Avenue such that it could be liable under the NJTCA. 

Indeed, N.J.S.A. 27:16-6 provides, “The duty of maintaining and

keeping in repair every road so laid out and opened, taken over,

or acquired, shall devolve exclusively upon the board of chosen

freeholders [the County], and all other duties and all powers

respecting such road shall be imposed upon and be vested in it.” 

Those duties of the County include, “Improve, pave, repave,

surface or resurface, repair and maintain any road or highway

under its control, either in whole or in part.” N.J.S.A. 27:16-1.

Just as a privately owned company that was under contract with

Atlantic County to maintain Ventnor Avenue would not obtain a

possessory interest in Ventnor Avenue to make it a concurrent

owner with Atlantic County, the same would most likely be true for

another public entity. 

Regardless of any hypothetical maintenance contract, in this

case, where the only evidence of Margate’s alleged possessory

control of Ventnor Avenue is its agreement with Atlantic County to

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clean and remove snow off of Atlantic County’s road, plaintiffs

cannot establish that Margate “controls” Ventnor Avenue to make it

liable for plaintiffs’ injuries under N.J.S.A. 59:4-1c. 

b. Plaintiffs cannot establish that Margate had actual

or constructive notice of the alleged dangerous

condition

Even if plaintiffs could demonstrate that Margate “controls”

Ventnor Avenue, they have not provided sufficient evidence that

Margate had “actual or constructive notice of the dangerous

condition” on Ventnor Avenue. To hold a public entity liable for

a plaintiff’s injuries on its property, the NJTCA requires that a

plaintiff must show, among other things, that (1) the property was

in dangerous condition at the time of the injury, (2) that the

injury was proximately caused by the dangerous condition, (3) that

the dangerous condition created a reasonably foreseeable risk of

the kind of injury which was incurred, and that (4) the public

entity had actual or constructive notice of the dangerous

condition under section 59:4–3 for a sufficient time prior to the

injury to have taken measures to protect against the dangerous

condition. N.J.S.A. 59:4–2. 

In order to show that Margate had constructive notice of the

dangerous condition of Ventnor Avenue that purportedly caused

Marenbach’s fall, plaintiffs argue that a jury could infer the

size and depth of the defect from six photographs taken of the

street. Plaintiffs further argue that a jury could infer that in

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order for that defect to get to that size and depth, the defect

would have had to have been there for some time before the

accident. 

2

Plaintiffs’ photographs are insufficient to meet their burden

for several reasons. One reason is that the photographs appear to

lack clarity of the defect so that a jury could not determine the

defect’s size and depth. Aside from the quality of the pictures, 3

however, the main reason these photographs are unpersuasive to

demonstrate Margate’s constructive knowledge of the defect is

because plaintiffs do not provide any certification attesting to

when these photographs were taken, or by whom. The date stamp on 4

two of the photos is “1/21/2006,” while the other four are

undated. It would be impossible for any jury to determine whether

Margate should have been aware of a defect in the street on July

Plaintiffs also argue that because Margate’s chief 2

financial officer, Lisa McLaughlin, testified that Margate had a

program to patrol and inspect for potholes, it could be found

that Margate had actual or constructive knowledge of the defect

on Ventnor Avenue. As plaintiffs are aware, however, Ms.

McLaughlin testified that she did not know whether Ventnor Avenue

was part of that program. 

The Court was only provided with photocopies of the 3

photographs, but even acknowledging that the original photographs

are more clear than photocopies of them, it does not seem to the

Court that the original photographs would sufficiently depict the

size and depth of the defect as argued by plaintiffs.

Plaintiffs do not attach these photographs as exhibits to 4

their motion, but rather refer to Margate’s motion papers, which

include these photographs as exhibits to its motion.

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4, 2009 when the date of these photographs is unknown. 

5

Consequently, because plaintiffs provide insufficient

evidence to demonstrate Margate’s actual or constructive knowledge

about the alleged dangerous condition on Ventnor Avenue, in

addition to their inability to demonstrate that Margate controls

Ventnor Avenue, Margate is entitled to summary judgment on all of

plaintiffs’ claims.

2. Margate’s Request for Sanctions

Margate seeks attorneys fees and costs from plaintiffs

pursuant to the New Jersey Frivolous Litigation Statute, N.J.S.A.

2A:15–59.1, which is typically brought in state court pursuant to 

N.J. Ct. R. 1:4–8, and is “patterned after Rule 11 of the Federal

Rules of Civil Procedure.” Thorner v. Sony Computer Entertainment

America Inc., 2010 WL 904797, 2 (D.N.J. 2010) (citing Sjogren,

Inc. v. Caterina Ins. Agency, 582 A.2d 841 (N.J. Ch. Div. 1990)). 

These provisions proscribe the filing of a claim pursued in bad

faith, for harassment, or unnecessary delay, and they require

certain procedural steps to be taken in order for a court to

consider the application, such as a “safe harbor” letter sent to

the offending party prior to the application for sanctions. See,

It appears to the Court that these photos were taken at 5

different times. Three of the photographs show a restaurant

chalkboard menu sign in the crosswalk, and one of those photos

shows a tree with foliage. One undated photo, and the two

photographs date stamped “1/21/2006,” do not show the restaurant

menu sign, and two appear to show a tree with no leaves. 

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e.g., Fed. R. Civ. P. 11(c); N.J. Ct. R. 1:4-8.

In this case, Margate twice warned plaintiffs’ counsel--once

to plaintiffs’ former counsel in January 2010 and again to

plaintiffs’ current counsel in November 2011--that pursuing claims

against Margate was frivolous because Margate does not own or

control Ventnor Avenue, and because plaintiffs never certified

that they met the mandatory $3600 treatment minimum requirement

under the NJTCA. Margate argues that in addition to warning

plaintiffs about their frivolous pursuit of claims against

Margate, plaintiffs demonstrated their awareness that Margate was

the wrong party to pursue when they spent more than a year

attempting to litigate their claims against Atlantic County. 

Plaintiffs, however, strenuously contest that their pursuit of

claims against Margate has been frivolous, and they contend that

their attempts to navigate the complicated NJTCA have not been

motivated by harassment or bad faith. 

The requirements of the provisions imposing sanctions must be

strictly construed. See DeBrango v. Summit Bancorp, 745 A.2d 561,

565 (N.J. Super. Ct. App. Div. 2000) (explaining that the

frivolous litigation statute must be interpreted restrictively);

Balthazar v. Atlantic City Medical Center, 137 Fed. Appx. 482,

490, 2005 WL 1473901, *8 (3d Cir. 2005) (quoting Fed. R. Civ. P.

11(c)(4)) (explaining that the appropriate sanction must be

limited to one “sufficient to deter repetition of such conduct or

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comparable conduct by others similarly situated”). One

requirement of the sanctions provisions is that the party seeking

sanctions must file an independent motion or application, separate

from any substantive motion that party files. See N.J.S.A

2A:15–59.1 (“A party . . . seeking an award under this section

shall make application to the court which heard the matter. The

application shall be supported by an affidavit.”); Greenblatt v.

Sulovski, 2010 WL 4007653, 2 (N.J. Super. Ct. App. Div. 2010)

(citing N.J. Ct. R. 1:4–8(b)(1) (“An application for sanctions

under this rule shall be by motion made separately from other

applications and shall describe the specific conduct alleged to

have violated this rule.”) and explaining that the trial court

denied defendant’s request for counsel fees pursuant to the New

Jersey Frivolous Litigation Statute because they had not filed a

separate motion for counsel fees); Fed. R. Civ. P. 11 (“A motion

for sanctions must be made separately from any other motion and

must describe the specific conduct that allegedly violates Rule

11(b).”).

Margate makes its request for attorney’s fees and costs

pursuant to the New Jersey Frivolous Litigation Statute as a part

of its motion for summary judgment. This is procedurally

improper. Should Margate wish to pursue its request for

attorney’s fees and costs, it should do so in accordance with the

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proper procedure set forth by the rules.6

CONCLUSION

For the reasons expressed above, defendant’s motion for

summary judgment shall be granted, and defendant’s request for

sanctions shall be denied without prejudice. An appropriate Order

will be entered.

Date: April 29, 2013 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

Plaintiffs filed their complaint in this Court under 6

diversity jurisdiction, 28 U.S.C. § 1332. Plaintiffs’ claims

arise solely under New Jersey state law. Even though the federal

rules provide for sanctions similar to those requested by

Margate, Margate has sought sanctions under a New Jersey statute.

Because Margate’s request for counsel fees and costs will be

denied without prejudice, the Court takes no position on whether

Margate should be proceeding under Rule 11 or N.J.S.A.

2A:15–59.1, other than to note that either avenue may be proper. 

See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 393 (3d

Cir. 2002) (explaining that “under the Rules Enabling Act, 28

U.S.C. § 2072(b), procedural rules may not supplant substantive

rights but the line between procedure and substance is

notoriously difficult to draw . . . . Our review of extant case

law persuades us that the Federal Rules of Civil Procedure do not

preempt claims for abuse of process and similar torts providing

relief for misconduct in federal litigation. Therefore, victims

of such misconduct may, in appropriate circumstances, bring suit

to recover damages under state causes of action”).

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