The opinion
NOT FOR PUBLICATION WITHOUT THE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-0927-23
1650 OAK STREET, LLC,
Plaintiff-Appellant,
v.
TOWNSHIP OF LAKEWOOD
ZONING BOARD OF
ADJUSTMENT and KBS MT.
PROSPECT, LLC,
Defendants-Respondents.
__________________________
Argued October 8, 2025 – Decided October 30, 2025
Before Judges Mayer, Vanek and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-1341-23.
Vincent J. DelRiccio argued the cause for appellant
(R.C. Shea & Associates, attorneys; Robert C. Shea, of
counsel and on the briefs; Vincent J. DelRiccio, on the
briefs).
Matthew N. Fiorovanti argued the cause for
respondents (Giordano, Halleran & Ciesla, PC,
attorneys for respondent KBS Mt. Prospect, LLC;
Matthew N. Fiorovanti, of counsel and on the brief).
Dasti, McGuckin, McNichols, Connors, Anthony and
Buckley, attorneys for respondent Township of
Lakewood Zoning Board of Adjustment (Jerry J. Dasti,
of counsel and on the brief; Joseph F. Mackolin, Jr., on
the brief).
PER CURIAM
Plaintiff 1650 Oak Street, LLC appeals from the following orders entered
on October 20, 2023: an order granting a motion to dismiss in favor of defendant
KBS Mt. Prospect, LLC (KBS); an order granting a motion to dismiss in favor
of defendant Township of Lakewood Zoning Board of Adjustment (Board); an
order denying its motion for summary judgment; and an order denying its motion
to file an amended complaint. We affirm all orders on appeal.
Plaintiff challenges dismissal of its complaint in lieu of prerogative writs
alleging violations of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4 -6
to -21. Plaintiff alleges the Board acted without authority based on failure to
comply with the OPMA's notice provisions since January 2022. Plaintiff
contends the Board failed to properly reorganize and vest itself with jurisdiction
to act each year thereafter. Additionally, plaintiff claims the Board failed to
recite statutorily mandated language regarding compliance with the OPMA at a
May 2023 meeting.
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Specifically, plaintiff argues at the Board's January 8, 2022 annual
meeting,1 the Board failed to comply with N.J.S.A. 10:4-8 when it reorganized
as a public body, vested itself with quasi-judicial authority, and established its
regular monthly meetings for the upcoming year. Plaintiff further contends the
Board failed to provide "adequate notice"2 of the scheduled regular monthly
meetings it set at that annual meeting––the last monthly meeting for that year
was scheduled for January 9, 2023. According to plaintiff, because the Board
provided inadequate notice of the regular monthly meetings in January 2022, it
lacked authority and jurisdiction to take any action at the subsequent monthly
meetings absent notice of special meetings, which the Board failed to do.
Plaintiff further contends on January 9, 2023, the Board held the last of
its regular monthly meetings for the year without noticing that meeting as a
1
Annual meetings under N.J.S.A. 10:4-8 require a public body, at least once a
year, post a schedule of the public body's regularly scheduled meetings for the
year with dates, times, and locations, to the extent known. The statutory posting
must be made within seven days of the annual organization or reorganization
meeting, or by January 10 if such a meeting is not held. N.J.S.A. 10:4-8.
2
Adequate notice includes written notice to two newspapers and posted publicly
at least forty-eight hours in advance that provides the time, date, location and
agenda (to the extent known) of any meeting, whether regularly scheduled or
special. N.J.S.A. 10:4-8(d).
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special meeting. At that meeting, the Board reorganized, vested itself with
jurisdiction, and scheduled its regular monthly meetings for 2023.
On January 18, 2023, the Board provided notice of the new schedule for
regular monthly meetings but, like the January 2022 notice, plaintiff claims the
notice was inadequate under the OPMA.
On February 6, 2023, the Board held a regular meeting and attempted to
correct the OPMA deficiencies by reorganizing and reaffirming its schedule of
regular monthly meetings. The Board published notice of its reaffirmed
schedule on February 9 and 10. Plaintiff asserts the Board lacked authority to
act at the February 6, 2023 meeting because the January 18, 2023 notice for th e
February 6 meeting was deficient, and the Board failed to notice it as a special
meeting.
At the next monthly meeting, May 1, 2023, the Board considered a
variance application filed by KBS.3 Because the Board purportedly failed to
properly notice the February 6, 2023 meeting or properly reorganize at that
meeting, plaintiff asserts the Board lacked authority to consider KBS's variance
request. Additionally, plaintiff contends that even if the Board had authority to
3
KBS contends plaintiff's challenges to the Board's annual meeting notices were
designed to delay and frustrate its variance application.
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act, the May 1 meeting had to be noticed as a special meeting—not a regular
meeting—and the Board failed to do so. Further, plaintiff asserts the Board's
chairman failed to recite the statutorily-required notice language at the May 1
meeting, rendering the proceedings on that date defective.
In count one of the complaint, plaintiff claimed the Board was not
authorized to conduct business and act as a result of the OPMA notice
deficiencies. Plaintiff sought to void all Board action taken at its meetings on
January 9, February 6, and May 1, 2023.
In count two of the complaint, plaintiff claimed the Board's January 18,
2023 notice of the regular monthly meetings was deficient. Because the January
9 and January 18, 2023 meetings and notices did not comply with the OPMA,
plaintiff claims the Board lacked authority to conduct any business at these
meetings, including reorganization. Plaintiff asserts these deficiencies rendered
the Board's actions at the February 6 and May 1, 2023 meetings invalid.
In count three of the complaint, plaintiff challenged the Board's actions at
the May 1, 2023 meeting. At the May 1 meeting, the Board considered KBS's
variance application. During appellate argument, the parties advised that
plaintiff filed a separate action challenging the Board's approval of KBS's
variance application. Thus, plaintiff's challenge to the Board's actions at the
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May 1, 2023 meeting is subsumed in a separate complaint and is no longer a part
of this appeal.
The Board filed an answer to the complaint. In its answer, the Board
raised several affirmative defenses, including the statute of limitations and
plaintiff's failure to state a claim for relief under Rule 4:6-2(3).
In lieu of filing an answer, KBS moved to dismiss plaintiff's complaint as
barred by the statute of limitation. KBS also asserted the complaint should be
dismissed because plaintiff failed to state a claim for relief. The Board then
filed a dismissal motion raising the same arguments as KBS.
Plaintiff cross-moved for summary judgment. While defendants' motions
to dismiss and plaintiff's cross-motion for summary judgment were pending,
plaintiff filed a motion for leave to file an amended complaint. The proposed
amended complaint alleged that after the May 1, 2023 meeting, the Board
continued to hear KBS's variance application despite the Board's failure to
properly reorganize and provide proper notice of its meetings.
On October 20, 2023, the court heard counsels' arguments on the
motions. The judge partially granted defendants' motions to dismiss. The judge
found the claims asserted in counts one and two of the complaint were barred
by the forty-five-day period of limitations under N.J.S.A. 10:4-15. The judge
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concluded plaintiff's complaint in lieu of prerogative writs was filed more than
forty-five days after issuance of notices for the January 8, 2022, January 9, 2023,
and February 6, 2023 meetings. Therefore, the judge determined the allegations
in counts one and two of the complaint were untimely and dismissed those
counts with prejudice.
Regarding count three of the complaint, the judge dismissed those claims
without prejudice and allowed plaintiff to refile the claims in a separate action.
The parties advised that the allegations asserted in count three of plaintiff's
complaint are currently the subject of separate pending litigation. Therefore, we
need not address plaintiff's challenge to that portion of the judge's order.
Based on the dismissal of the complaint, the judge denied plaintiff's cross-
motion for summary judgment. The judge also denied plaintiff's motion to
amend the complaint. The judge found the allegations in counts four and five
of the proposed amended complaint were untimely. Thus, the judge concluded
the allegations in plaintiff's proposed amended complaint would have been
futile.
On appeal, plaintiff asserts the judge erred in determining its complaint
was untimely. Additionally, plaintiff claims the judge erred in denying its
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motion for leave to file an amended complaint. Further, plaintiff contends it
was entitled to summary judgment as a matter of law.
We first address plaintiff's claim the judge erred in dismissing its
complaint as untimely.
"Rule 4:6-2(e) motions to dismiss for failure to state a claim upon which
relief can be granted are reviewed de novo." Baskin v. P.C. Richard & Son,
LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin,
Foley, Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 108 (2019)). "A
complaint should be dismissed for failure to state a claim pursuant to Rule 4:6-
2(e) only if 'the factual allegations are palpably insufficient to support a claim
upon which relief can be granted.'" Frederick v. Smith, 416 N.J. Super. 594,
597 (App. Div. 2020) (quoting Rieder v. State Dep't of Transp., 221 N.J. Super.
547, 552 (App. Div. 1987)). In considering a Rule 4:6-2(e) motion, "[a]
reviewing court must examine 'the legal sufficiency of the facts alleged on the
face of the complaint.'" Baskin, 246 N.J. at 171 (quoting Dimitrakopoulos, 237
N.J. at 107). The test for determining the adequacy of a pleading is "whether a
cause of action is 'suggested' by the facts." Printing Mart-Morristown v. Sharp
Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v. Colgate-Palmolive
Co., 109 N.J. 189, 192 (1988)).
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"Dismissals under Rule 4:6-2(e) are ordinarily without prejudice." Mac
Prop. Grp. LLC & The Cake Boutique LLC v. Selective Fire & Cas. Ins. Co. ,
473 N.J. Super. 1, 17 (App. Div. 2022). However, "a dismissal with prejudice
is 'mandated where the factual allegations are palpably insufficient to support a
claim upon which relief can be granted,' or if 'discovery will not give rise to
such a claim.'" Ibid. (first quoting Rieder, 221 N.J. Super. at 552; and then
quoting Dimitrakopoulos, 237 N.J. at 107). Where a trial court is "convinced
. . . discovery will not supply a claim . . . , the complaint should be dismissed
with prejudice." Est. of Campbell through Campbell v. Woodcliff Health &
Rehab. Ctr., 479 N.J. Super. 64, 89-90 (App. Div. 2024).
The OPMA provides a forty-five-day period for challenging an action that
allegedly did not conform with the statute. The OPMA provides:
a. Any action taken by a public body at a meeting which
does not conform with the provisions of this act shall
be voidable in a proceeding in lieu of prerogative writ
in the Superior Court, which proceeding may be
brought by any person within [forty-five] days after the
action sought to be voided has been made public;
provided, however, that a public body may take
corrective or remedial action by acting de novo at a
public meeting held in conformity with this act and
other applicable law regarding any action which may
otherwise be voidable pursuant to this section; and
provided further that any action for which advance
published notice of at least [forty-eight] hours is
provided as required by law shall not be voidable solely
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for failure to conform with any notice required in this
act.
b. Any party, including any member of the public, may
institute a proceeding in lieu of prerogative writ in the
Superior Court to challenge any action taken by a
public body on the grounds that such action is void for
the reasons stated in subsection a. of this section, and if
the court shall find that the action was taken at a
meeting which does not conform to the provisions of
this act, the court shall declare such action void.
[N.J.S.A. 10:4-15.]
In considering a challenge for failure to provide adequate notice under
N.J.S.A. 10:4-8(d), the Court has held that "strict adherence to the letter of the
law is required." Polillo v. Deane, 74 N.J. 562, 578 (1977). Substantial
compliance is no defense when considering whether a public body provided
adequate notice. Id. at 577-78.
Here, counts one and two of plaintiff's complaint alleged violations of the
OPMA starting in January 2022. Count one alleged the Board had no authority
to act because it failed to provide adequate notice of its: annual monthly
meetings in January 2022; the January 9, 2023 meeting at which the Board
reorganized; the February 6, 2023 meeting where the Board again reorganized;
and the May 1, 2023 meeting. Count two overlapped with count one, alleging
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the notice deficiencies rendered the February 6 and the May 1, 2023 meetings
invalid.
Plaintiff filed its complaint on June 8, 2023. Plaintiff's challenges related
to actions taken at the Board's January 2022, January 2023, and February 2023
meetings. Those allegations fell outside the forty-five-day period from the
posted notices of these meetings. Additionally, whether or not plaintiff saw the
posted notices is insignificant because plaintiff's attorney lodged an objection to
the Board's actions at the February 6, 2023 meeting. Thus, the forty-five-day
clock commenced on that date and expired on March 27, 2023, rendering
plaintiff's June 8, 2023 complaint untimely. On these facts, we discern no error
in the judge's dismissal of plaintiff's complaint with prejudice.
We next address plaintiff's assertion the judge erred in denying its motion
for leave to file an amended complaint. We review a trial judge's decision on a
motion for leave to amend a pleading for abuse of discretion. Port Liberte II
Condo. Ass'n, Inc. v. New Liberty Residential Urb. Renewal Co., 435 N.J.
Super. 51, 62 (App. Div. 2014).
Where a party seeks to file an amended complaint after responsive
pleadings have been filed, Rule 4:9-1 provides that the court shall "freely" grant
leave to amend "in the interest of justice." While leave should be liberally
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granted, the court need not grant the motion if an amendment would be futile or
not legally sustainable. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501
(2006). "[T]he requested amendment is examined to determine whether it is
futile, that is whether the amended claim will nonetheless fail and, hence,
allowing the amendment would be a useless endeavor." Ibid. "In other words,
there is no point in permitting the filing of an amended pleading when a
subsequent motion to dismiss must be granted." Id. at 501-02 (quoting
Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div.
1997)).
We discern no abuse of discretion in the judge's denial of plaintiff's motion
for leave to amend. The judge properly denied the motion because the
allegations in the proposed amended counts were barred by OPMA's forty-five-
day limitation period. The allegations in the proposed amended complaint
related to the same meetings challenged in counts one and two, which the judge
deemed untimely. Thus, the allegations in the amended pleading would not
survive a motion to dismiss, and the judge properly denied plaintiff's motion for
leave to amend.
We also reject plaintiff's contention the judge erred in denying its cross-
motion for summary judgment. To be considered a proper cross-motion, the
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subject matter of the cross-motion must relate to the subject matter of the
original motion. See R. 1:6-3(b).
Here, defendants moved to dismiss the complaint as untimely. Plaintiff's
cross-motion challenged the intentions of the Board related to its actions or
inactions. It is clear from the assertions in plaintiff's cross-motion that the relief
sought was unrelated to the subject matter of defendants' motions. Therefore,
plaintiff's cross-motion failed to comply with the court rule.
Additionally, a motion for summary judgment must be filed twenty-eight
days prior to the return date. See R. 4:46-1. Plaintiff's cross-motion for
summary judgment was filed only eight days before the return date of
defendants' dismissal motions. Thus, the judge properly denied plaintiff's cross-
motion for summary judgment.
Affirmed.
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