Professional Liability

This matter involved a prerogative writ action, challenging a construction board of appeals’ decision affirming the issuance of a notice of unsafe structure. The plaintiffs appealed the construction official’s determination on June 23, 2016. A hearing scheduled for July 5, 2016 was then adjourned to August 2, 2016, with the consent of all parties. The plaintiffs also consented to the City’s request to adjourn the hearing again to September 6, 2016. However, the plaintiffs objected to the City’s request for a third adjournment, advising that if its case was not heard on September 6, 2016, it would consider the adjournment a denial and would appeal the de facto decision to the Superior Court of New Jersey. The construction board adjourned the appeal over the plaintiffs’ objection to October 4, 2016. On October 3, 2016, the plaintiffs filed a complaint in lieu of prerogative writ in the Superior Court of New Jersey. The plaintiffs did not appear or participate in the board’s hearing on October 4, 2016, where the board unanimously decided against the plaintiffs. The plaintiffs then amended the prerogative writ complaint to add a third count appealing the board’s decision. The plaintiffs did not serve the amended complaint until nearly eight months later.

The City defendants filed a motion for summary judgment to dismiss the complaint for “inexplicable and unwarranted delay in serving the complaint, in light of the requirement of Rule 4:69-6 that prerogative writ actions are to be filed within 45 days of the date of the action being challenged.” The trial court granted summary judgment to the City on March 16, 2018. The plaintiffs filed a motion for reconsideration that was denied. The court found continuing prejudice to the City because they were continuing to litigate these issues after “the abandonment of the property and the default on the loan,” concluding “that this is a strategic action and not a matter of substance.” The Appellate Division affirmed the challenged orders on October 1, 2020, holding that the delayed service was entirely inconsistent with the accelerated nature of a prerogative writs action and the plaintiffs did not satisfy any of the reasons that might justify an extension. The plaintiffs are now in the process of petitioning the Supreme Court for certification to decide this fairly esoteric issue.