Background
This dispute centers on a parcel of real property located at 457-463 Wilson Avenue in Newark, Essex County. The Newark Housing Authority (NHA) holds title, having purchased the property in 1982. Theodore Fiore, Sr. asserted that his family’s businesses — including T. Fiore Demolition, Inc., T&C Auto Sales, LLC, and T. Fiore Recycling Corp. — had continuously occupied and used the property since that time, giving rise to a claim of adverse possession. Fiore individually filed a prior Chancery Division action against NHA in April 2024, but the Chancery court dismissed his complaint in March 2025 for lack of standing, because Fiore personally had not been in possession of the property. The Chancery court noted, however, that the corporate entities might have standing to assert adverse possession claims and expressly left that question open for a separate proceeding.
On May 12, 2025, NHA moved quickly and filed a summary action for possession under Rule 4:67-1(a) and N.J.S.A. 2A:39-6 in the Law Division, obtaining an order to show cause (OTSC) with a return date of June 16, 2025, and a deadline of June 6, 2025 for defendants to file opposition. After defense counsel sought and received an adjournment in June, a series of procedural missteps followed: the court rescheduled the return date to June 30 but sent the relevant eCourts notices only to the general docket — not to defense counsel. Defense counsel received only one eCourts notice, which stated his adjournment request had been granted, without specifying the new return date. No amended OTSC was ever entered. When defense counsel appeared at a June 12 remote hearing, the court did not unambiguously state that the return date was June 30. Defense counsel thereafter ordered the Chancery transcript on expedited service, received it on June 23, filed an answer and counterclaim on June 24, and filed a motion for leave to assert the counterclaim on June 26. On June 30 — a date defendants did not know was the return date — the court entered a judgment of possession in NHA’s favor. Defendants moved for reconsideration. The court denied the motion and denied defendants’ counterclaim motion as moot.
The Court’s Holding
The Appellate Division reversed the order denying reconsideration, vacated the judgment of possession, and remanded for further proceedings before a different judge. The panel found that the record supported defendants’ claim that they lacked adequate notice of the June 30 return date. No amended OTSC was entered after the adjournment was granted. The two eCourts notices that reflected the June 30 date were not sent to defense counsel. The court did not specifically state during the June 12 remote hearing that the return date was June 30. And the only notice defense counsel did receive from the court after that hearing — on June 27 — advised him that the next court event would occur on July 18, which was when his counterclaim motion was scheduled. In that context, counsel’s belief that the OTSC return date and his counterclaim motion would be heard together on July 18 was understandable.
The court also found defendants did not simply fail to oppose. They filed an answer and counterclaim on June 24, and a motion for leave to file the counterclaim on June 26, both timely under Rule 4:67-4(a) even if June 30 was the operative return date. That rule, which governs responses to OTSCs, does not distinguish between an answer and opposition, and defense counsel reasonably read it to mean his filing constituted opposition. The panel reiterated the well-settled principle that entry of judgment as a sanction for failure to appear is a drastic remedy to be used sparingly and only where the party’s conduct reflects deliberate and contumacious disregard for the court’s authority. Nothing in this record supported that conclusion. Finally, because the court denied the counterclaim motion solely as moot based on its erroneous denial of reconsideration, the panel vacated that order as well and directed the court on remand to address defendants’ adverse possession counterclaim on the merits.
Key Takeaways
- When a court grants an adjournment of an OTSC return date, it must enter an amended OTSC or otherwise clearly notify all parties of the new return date and any changed filing deadlines — reliance on eCourts notices that are not transmitted to defense counsel is insufficient to support the entry of judgment by default.
- Entry of a judgment for possession as a sanction for failure to appear is a drastic remedy that must be reserved for parties who show deliberate and contumacious disregard for the court’s authority; where the procedural record contains ambiguity about filing deadlines and court dates, fairness and equity require that defendants be given an opportunity to be heard on the merits.
- An adverse possession claim not previously adjudicated on the merits — here, dismissed on standing grounds in an individual’s name — is not barred by res judicata or collateral estoppel when the corporate entities asserting the claim are differently situated and the underlying question was expressly left open by the prior court.
Why It Matters
This decision is a cautionary tale about the intersection of eCourts administration, procedural due process, and the obligation of courts to clearly communicate scheduling changes when an OTSC is adjourned. Counsel practicing in summary actions should be aware that the OTSC procedural framework under Rule 4:67 requires clear, express notice of rescheduled return dates — and that a party cannot be defaulted based on ambiguous court communications. Defense counsel facing an OTSC adjournment should affirmatively confirm in writing with the court what the new return date is and when any opposition is due, rather than relying on oral representations at a remote hearing or on a single eCourts notification that does not specify the rescheduled date.
On the substantive side, the decision keeps alive the corporate defendants’ adverse possession claim for property continuously occupied by the Fiore family’s businesses since 1982. On remand, those entities will have the opportunity to present their claim on the merits — an outcome the Chancery court had left open when it dismissed Fiore individually for lack of standing. For NHA and other public entities holding long-uncontested title, this case is a reminder that long-standing occupancy by third parties may generate adverse possession claims that require litigation to resolve, even where the title holder believes the matter has been previously settled.