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NOT FOR PUBLICATION WITHOUT THE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-0418-24
DARIUSZ CZYZEWSKI
and RENEE BORISKIN,
Plaintiffs-Appellants,
v.
PLANNING BOARD OF
THE CITY OF GARFIELD
and BYLT DEVELOPMENT
COMPANY, LLC,
Defendants-Respondents.
___________________________
Submitted October 21, 2025 – Decided November 6, 2025
Before Judges Sumners and Chase.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-0467-24.
De Marco & De Marco, attorneys for appellants
(Michael P. De Marco, on the briefs).
Harwood Lloyd, LLP, attorneys for respondent BYLT
Urban Renewal LLC (Allyson M. Kasetta, of counsel
and on the brief).
Cimino Law, LLC, attorneys for respondent Planning
Board of the City of Garfield (Alyssa A. Cimino, of
counsel and on the brief).
PER CURIAM
Plaintiffs Darius Czyzewski and Renee Boriskin appeal from an August
28, 2024 Law Division order dismissing their action in lieu or prerogative writs.
We affirm.
I.
This case concerns the Planning Board of the City of Garfield's ("Board")
approval of BYLT Development Company, LLC's ("BYLT") application for
preliminary and final major site plan approval.
The matter was scheduled before the Board on July 27, 2023. Before
testimony began, plaintiffs' counsel requested an adjournment, explaining that
plaintiffs could not attend due to an emergency. The Board proceeded with
BYLT's witnesses but postponed its vote until the next meeting, giving plaintiffs
the opportunity to be heard. Plaintiffs' counsel stated he would "be getting the
transcript for [his] client's benefit" and offered to provide it to the Board
members who were absent so they could vote. The Board instructed counsel on
the transcripts ordering process.
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BYLT presented expert witness testimony in support of its application.
Plaintiffs' counsel chose not to cross-examine BYLT's witnesses and left the
meeting before the testimony concluded.
A few days later, BYLT's counsel sent plaintiffs' counsel a letter stating
that BYLT's testimony had concluded and, per his request, the Board would vote
at the next meeting. BYLT also invited plaintiffs' concerns regarding the
development. Weeks later, BYLT sent a letter to the City of Garfield and
plaintiffs' counsel confirming the vote would be moving forward at the next
meeting. Plaintiffs' counsel did not respond to either letter.
On September 28, 2023, the Board voted to approve BYLT's application
and memorialized its decision in resolution PB-11-2023. Plaintiffs and their
counsel did not attend or provide any testimony.
Plaintiffs timely filed an action in lieu of prerogative writs, alleging the
Board had acted arbitrary, capricious, and unreasonable. Plaintiffs certified,
pursuant to Rule 4:69-4, that they had ordered the transcripts of the proceedings
before the Board. Their pre-trial briefs did not attach the transcripts from the
Board hearings but instead included transcripts from redevelopment plan
hearings conducted a year earlier. The court informed plaintiffs that they had
submitted the wrong transcripts.
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On August 28, 2024, the parties appeared for trial. The court stated that
it could not render a decision without the transcripts. Plaintiffs' counsel, despite
being present at the first hearing and having written notice of the second hearing,
argued against dismissal. Counsel blamed the Board's attorney and claimed not
to know about other hearing dates. He further argued that transcripts were
unnecessary to challenge the validity of the resolution. The court rejected these
arguments and dismissed the complaint, with prejudice, for failure to comply
with Rule 4:69-1. This appeal follows.
II.
The meaning, scope, and applicability of our Court Rules are reviewed de
novo. State v. Dickerson, 232 N.J. 2, 17 (2018); State v. Hernandez, 225 N.J.
451, 461 (2016); In re Ordinance 2354-12 of Tp. of West Orange, Essex County
v. Township of West Orange, 223 N.J. 589, 596 (2015). However, "appellate
courts are not to intervene . . . [and] will defer to a trial judge's discovery rulings
absent an abuse of discretion or a judge's misunderstanding or misapplication of
the law." Capital Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J.
73, 79-80 (2017) (citing Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 371 (2011)); See also Il Grande v. DiBenedetto, 366 N.J. Super. 597, 610
(App. Div. 2004) (quoting Alk Assocs. v. Multimodal Applied Systems, Inc.,
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276 N.J. Super. 310, 314-15 (App. Div. 1994)) ("a judge abuses [their]
discretion when [they] fail[] 'to exercise discretion because the court did not
realize it has such discretion.'").
On appeal, plaintiffs argue the court improperly exercised its discretion to
enlarge the time-period for commencing an action in lieu of prerogative writs.
Plaintiffs also contend the transcripts were not relevant to the legal question
presented by their complaint. We are not persuaded.
We begin our analysis by noting Rule 4:69-6(c), generally, may be
applicable to Rule 4:69-4 given the transcripts required by Rule 4:69-4 are
integral to the complaint which Rule 4:69-6(c) enlarges the time to file.
However, enlarging time to file an action in lieu of prerogative writs is typically
only proper for novel constitutional questions, informal or ex-parte
determinations, or matters of important public interest. Cohen v. Thoft, 368 N.J.
Super. 338, 345-46 (App. Div. 2004). While this "list of exceptions was not
intended to be exhaustive[,]" Hopewell Valley Citizens' Group, Inc. v. Berwind
Prop. Group Dev. Co., LP, 204 N.J. 569, 584 (2011), "'other factors that will
ordinarily guide courts include whether there will be a continuing violation of
public rights.'" Borough of Princeton v. Bd. of Chosen Freeholders of Mercer,
169 N.J. 135, 152 (2001) (quoting Reilly v. Brice, 109 N.J. 555, 559 (1988)).
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Here, there are no matters of public rights involved—plaintiffs' cause of action
regards an easement on their property that BYLT has agreed to maintain.
Further, the record undermines plaintiffs' claim of ignorance about
hearing dates. Their counsel attended the July 27, 2023 meeting and agreed to
order the transcript, received two letters from BYLT's counsel about subsequent
hearings, and submitted resolution PB-11-2023 as an exhibit, which identified
the relevant dates. The trial court notified plaintiffs that they had submitted the
wrong transcripts. Accordingly, plaintiffs were aware of the requisite dates.
Plaintiffs liken this case to Cohen, where we reversed an order of
dismissal based on reasonable reliance upon mistaken information and a finding
that the appellant "did not 'slumber on [their] rights.'" Cohen, 368 N.J. Super.
at 347 (quoting Shack v. Thimble, 28 N.J. 40, 49 (1958)). Unlike in Cohen,
plaintiffs had adequate notice and opportunity to correct their errors but failed
to do so. Considering plaintiffs had almost four-hundred business days between
filing and dismissal to recognize, and subsequently cure, transcript deficiencies,
we conclude that plaintiffs "slumber[ed] on [their] rights." Shack, 28 N.J. at 49.
While we are reluctant, as a matter of substantial justice, to affirm a dismissal
with prejudice on procedural grounds, we find that the equities favor defendants.
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Finally, we find plaintiffs' assertion that, because their action is contesting
the validity and sufficiency of the resolution, the parties did not require the
transcripts to be misplaced.
It is undisputed that the record before the government agency controls and
municipal action cannot be overturned unless unsupported by substantial
credible evidence. Centex Homes, LLC v. Township Committee of Tp. of
Mansfield, 372 N.J. Super. 186, 196 (Law Div. 2004) (citing El Shaer v.
Planning Bd., 249 N.J. Super. 323, 327 (App. Div. 1991)); Burbridge v. Mine
Hill, 117 N.J. 376, 385 (1990); Kramer v. Bd. of Adjustment, 45 N.J. 268, 289
(1965); Cell v. Zoning Bd. of Adjustment, 172 N.J. 75, 81-82 (2002). Further,
"[t]he record is the best evidence of what the board considered and decided."
Sherman v. Borough of Harvey Cedars Zoning Bd. of Adjustment, 242 N.J.
Super. 421, 430 (App. Div. 1990). Thus, the trial court could not have
adjudicated plaintiffs' claim "without reviewing the complete administrative
record, including the transcripts." Hirth v. City of Hoboken, 337 N.J. Super.
149, 158 (App. Div. 2001).
A resolution is merely a memorialization of municipal action, not the
action itself. See N.J.S.A. 40:55D-10(g)(2). A resolution may evidence what
the municipal agency considered but is not determinative. To find an arbitrary
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and capricious action, the trial court must review the transcripts of the
proceedings. Accordingly, we discern no abuse of discretion in the judge's order
of dismissal pursuant to Rule 4:69-4.
Insofar as any of plaintiffs' claims have not been addressed, we find
insufficient merit in these arguments to warrant discussion in a written decision.
Rule 2:11-3(e)(1)(E).
Affirmed.
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