                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2574-11T1
                                               A-3129-11T1




PORT LIBERTE II CONDOMINIUM
ASSOCIATION, INC.,

      Plaintiff-Appellant,

v.

NEW LIBERTY RESIDENTIAL URBAN
RENEWAL COMPANY, LLC, APPLIED
                                      APPROVED FOR PUBLICATION
DEVELOPMENT COMPANY, APPLIED
PROPERTY MANAGEMENT CO., LLC,            January 31, 2014
DAVID BARRY, ELIA BORELLI, and
BARBARA OIF STACK,                      APPELLATE DIVISION

      Defendants,1

and

RELIABLE ROOFING CO.,
RELIABLE ROOFING MAINTENANCE, INC.,
SOUTH SHORE CONTRACTING,
DSJ CONSTRUCTION, INC.,
CARFARO ORNAMENTAL IRONWORKS, INC.,
A&F CONSTRUCTION, INC.,
SALEM MASONRY CO., INC.,
COFFEY BROTHERS, INC.,

1
  These defendants had been the developers on the project. They
settled their dispute with plaintiff during the pendency of this
appeal and filed a stipulation of dismissal on June 18, 2013;
but, before that occurred, they had filed a responding brief and
a cross-appeal. Most of the other defendants joined the
responding brief.    Accordingly, we considered the responding
brief on this appeal. The cross-appeal is dismissed as settled.
UNITED FIREPROOFING COMPANY, INC.,2
FRITZE KEYSPAN, LLC,
COMMUNITY MAINTENANCE, LLC,
BEYER BLINDER BELLE, LLP,
PATWOOD ROOFING,
QUALITY ALUMINUM and
VINYL INSTALLERS, QUALITY, INC.,
ENVIRONMENTAL COMFORT, INC.,
K&F MECHANICAL, LISA CONSTRUCTION,
TRUSS SYSTEMS, INC.,
D&K GYPSUM FLOORS, INC.,
TECHNICAL BUILDING STRUCTURES,
RAINBOW PAINTING, INC.,
ARCHITECTURAL CONSTRUCTION
ASSOCIATES, AGRIMAR F.
PEREIRA/GOIANO CARPENTRY, INC.,
BETTER HOMES CONSTRUCTION, INC.,
BOLA ELITE CONSTRUCTION, INC.,
BOLIVAR GUAMAN, BSB CONSTRUCTION,
INC., CARLOS P. MARTINS, GELSON
DESOUZA GOMES, HOLY-WOOD
CARPENTRY, INC., IRON
CONSTRUCTION, INC./IRON C. BORBA,
JOSE MOURA CONSTRUCTION CORP.,
JOSE H. DEMOURA, JOVANE S. MOURAO,
LUIS O. MACANCELA, LUIS SARMIENTO,
ROBERTO B. MINCHALA, MOURA
CONSTRUCTION CORP., OAKWOOD
CARPENTRY, INC., JUAN AGEITOS
D/B/A ORCA CONSTRUCTION, THOR
CONSTRUCTION CORP., GENA & SONS,
CORP. D/B/A GENA CONSTRUCTION
COMPANY, FMJ CONSTRUCTION,
KARPATEY MASONRY T/A BV MASONRY,
VANNWALL CONSTRUCTION CORP.,
JOAO BRAVADO, MESFAR A. DEANDRADE,
GILBERTO A. AGUILAR, JOSE S.
RAMOS, LUIS EUSEBIO, and
VINCENT J. BARONE,

     Defendants-Respondents,

2
   During this appeal, plaintiff reached a settlement with
defendant United Fireproofing Company, Inc., and a stipulation
of dismissal was filed on October 10, 2013.



                                2                     A-2574-11T1
and

AJD CONSTRUCTION CO., INC.,

      Defendant/Third-Party
      Plaintiff-Respondent,

v.

SOUTH SHORE CONTRACTING,
DSJ CONSTRUCTION, INC.,
CARFARO ORNAMENTAL IRONWORKS,
A&F CONSTRUCTION, INC.,
SALEM MASONRY CO., INC., COFFEY
BROTHERS, INC., UNITED FIREPROOFING
COMPANY, INC., FRITZE KEYSPAN,
LLC,

      Third-Party Defendants,

v.

BEST CONSTRUCTION CO., INC.,

      Defendant/Third-Party
      Plaintiff-Respondent,

v.

VANNWALL CONSTRUCTION CORP.,
GENA & SONS, CORP. d/b/a
GENA CONSTRUCTION COMPANY,
FMJ CONSTRUCTION,
KARPATEY MASONRY t/a
BV MASONRY and
POLMAX CONSTRUCTION,

      Third-Party Defendants,

and

VANNWALL CONSTRUCTION CORP.,

      Defendant/Third-Party
      Defendant/Fourth-Party
      Plaintiff-Respondent,



                                3     A-2574-11T1
v.

JOAO BRAVADO, MESFAR A. DEANDRADE,
GILBERTO A. AGUILAR, JOSE S.
RAMOS, LUIS EUSEBIO,

      Fourth-Party Defendants,

and

E. ROBINSON GROUP, INC.,

      Defendant/Third-Party
      Plaintiff-Respondent,

v.

SENERGY, INC.,

      Third-Party Defendant,

and

MINNO AND WASKOW ARCHITECTS
AND PLANNERS,

      Defendant/Third-Party
      Plaintiff,

v.

VINCENT J. BARONE,

      Third-Party Defendant,

and

FIRE PROTECTION & MECHANICAL
ENGINEERING, INC.,

      Defendant/Third-Party
      Plaintiff,

v.

LIUTAS K. JURSKIS,



                                 4   A-2574-11T1
     Third-Party Defendant.
_________________________________________

PORT LIBERTE II CONDOMINIUM
ASSOCIATION, INC.,

      Plaintiff-Appellant,

v.

NEW LIBERTY RESIDENTIAL URBAN
RENEWAL COMPANY, LLC, APPLIED
DEVELOPMENT COMPANY, APPLIED
PROPERTY MANAGEMENT CO., LLC,
DAVID BARRY, ELIA BORELLI,
BARBARA OIF STACK, and
MINNO AND WASKOW ARCHITECTS
AND PLANNERS,

      Defendants,

and

AJD CONSTRUCTION CO., INC.,
COMMUNITY MAINTENANCE, LLC,
and BEYER BLINDER BELLE, LLP,

     Defendants-Respondents.
______________________________

MINNO AND WASKO ARCHITECTS AND
PLANNERS,

      Defendant/Third-Party
      Plaintiff-Respondent,

v.

ASSOCIATED ENGINEERING CONSULTANTS,

     Third-Party Defendant-
     Respondent.
___________________________________________




                                 5            A-2574-11T1
Argued November 19, 2013 – Decided January 21, 2014

Before Judges Reisner, Ostrer and Carroll.

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
Nos. L-1222-08 and L-3035-10.

John Randy Sawyer argued the cause for
appellant   Port   Liberte   II   Condominium
Association, Inc. in A-2574-11 and A-3129-11
(Stark & Stark, attorneys; Mr. Sawyer and
Gene Markin, of counsel and on the brief).

Stephen L. Petrillo argued the cause for
respondent AJD Construction Co., Inc. in A-
2574-11 and A-3129-11 (Marshall, Dennehey,
Warner, Coleman & Goggin, attorneys; Mr.
Petrillo and Walter F. Kawalec, III, on the
brief).

K&L Gates, LLP, attorneys for respondents
New Liberty Residential Urban Development
Company, Applied Property Management Co.,
LLC, David Barry, Elia Borelli, and Barbara
Oif Stack (the developers) in A-2574-11 and
A-3129-11 (Patrick J. Perrone, of counsel;
Loly G. Tor and Christopher J. Archer, on
the brief).

Winter & Winkler, attorneys for respondents
Moura Construction Corp. and Agrimar F.
Pereira t/a Goiano Carpentry, Inc. in A-
2574-11 join in the brief of respondent
developers.

Gebhardt & Kiefer, attorneys for respondent
DSJ Construction, Inc. in A-2574-11 join in
the brief of respondent developers.

Schoenfeld     Moreland,    attorneys     for
respondent Luis O. Macancela in A-2574-11
join in the briefs of respondents AJD
Construction Co., Inc. and the developers.




                      6                         A-2574-11T1
Wade Clark Mulcahy, attorneys for respondent
Mesfar E. DeAndrade in A-2574-11 join in the
briefs of respondents AJD Construction Co.,
Inc. and the developers.

Decker & Magaw, attorneys for respondent
Oakwood Carpentry, Inc. in A-2574-11 join in
the briefs of respondents AJD Construction
Co., Inc. and the developers.

Fishman McIntyre, attorneys for respondent
E. Robinson Group, Inc. in A-2574-11 join in
the briefs of respondents AJD Construction
Co., Inc. and the developers.

Biancamano & Di Stefano, P.C., attorneys for
respondent A&F Construction, Inc. in A-2574-
11 join in the briefs of respondents AJD
Construction Co., Inc. and the developers.

Joseph Carolan, attorneys for respondents
Reliable   Roofing  Maintenance,  Inc.  and
Architectural Construction Associates in A-
2574-11 join in the briefs of respondents
AJD   Construction   Co.,   Inc.   and  the
developers.

Milber Makris Plousadis & Seiden, LLP,
attorneys for respondents Bolivar Guaman and
Carlos P. Martins in A-2574-11 join in the
briefs of respondents AJD Construction Co.,
Inc. and the developers.

Bevan, Mosca, Giuditta & Zarillo, attorneys
for respondents Salem Masonry Co., Inc., and
Best Construction Company, Inc. in A-2574-11
and   A-3129-11  join   in  the   briefs  of
respondents AJD Construction Co., Inc. and
the developers.

Morgan   Melhuish   Abrutyn,   attorneys   for
respondent   Carfaro   Ornamental   Ironworks,
Inc. in A-2574-11 join in the briefs of
respondents AJD Construction Co., Inc. and
the developers.




                      7                          A-2574-11T1
Budd Larner, attorneys for respondent Thor
Construction Corp. in A-2574-11 join in the
briefs of respondents AJD Construction Co.,
Inc. and the developers.

Rawle & Henderson, attorneys for respondent
Beyer Blinder Bell, LP in A-2574-11 join in
the briefs of respondents AJD Construction
Co., Inc. and the developers.

Mayfield,   Turner,   O'Mara    &   Donnelly,
attorneys for respondents Patwood Roofing,
the Reitze Company, and Gelson DeSouza Gomes
in   A-2574-11  join   in   the   briefs   of
respondents AJD Construction Co., Inc. and
the developers.

Testa Heck Scrocca & Testa, attorneys for
respondent BSB Carpentry, Inc. in A-2574-11
join in the briefs of respondents AJD
Construction Co., Inc. and the developers.

Leary, Bride, Tinker & Moran, attorneys for
respondent   Quality   Aluminum   &   Vinyl
Installers in A-2574-11 join in the briefs
of respondents AJD Construction Co., Inc.
and the developers.

Maloof,   Lebowitz,  Connahan   &   Oleske,
attorneys for respondent Coffey Brothers,
Inc. in A-2574-11 join in the briefs of
respondents AJD Construction Co., Inc. and
the developers.

McElroy, Deutsch, Mulvaney & Carpenter,
attorneys for respondent Gena Construction
Corp. in A-2574-11 join in the briefs of
respondents AJD Construction Co., Inc. and
the developers.

Gibbons   P.C.,  attorneys  for  respondent
Jovane S. Mourao in A-2574-11 join in the
briefs of respondents AJD Construction Co.,
Inc. and the developers.




                      8                         A-2574-11T1
Goldberg Segalla, attorneys for respondent
United Fireproofing Company, Inc. in A-2574-
11 join in the briefs of respondents AJD
Construction Co., Inc. and the developers.

Bodell, Bove, Grace & Van Horn, attorneys
for respondent Karpatey Masonry in A-2574-11
join in the briefs of respondents AJD
Construction Co., Inc. and the developers.

Braff, Harris & Sukoneck, attorneys for
respondent Holy-Wood Carpentry, Inc. in A-
2574-11 join in the briefs of respondents
AJD   Construction  Co.,   Inc.   and  the
developers.

Powell & Roman, attorneys for respondent
Juan Ageitos d/b/a Orca Construction in A-
2574-11 join in the briefs of respondents
AJD   Construction  Co.,   Inc.   and  the
developers.

Suarez & Suarez, attorneys for respondent
Minno and Wasko Architects in A-2574-11 and
A-3129-11 join in the briefs of respondents
AJD   Construction  Co.,   Inc.   and   the
developers.

Hack, Piro, O'Day, Merklinger, Wallace &
McKenna, attorneys for respondent Associated
Engineering Consultants, Inc. in A-3129-11
join in the briefs of respondents AJD
Construction Co., Inc. and the developers.

Hoagland   Longo  Moran,  Dunst   &  Doukas,
attorneys for respondent Fire Protection and
Mechanical, Inc. in A-2574-11 join in the
briefs of respondents AJD Construction Co.,
Inc. and the developers.

Hartmann Doherty Rosa Berman & Bulbulia,
LLC,   attorneys    for  respondent   Fritze
Keyspan, LLC in A-2574-11 join in the briefs
of respondents AJD Construction Co., Inc.
and the developers.




                     9                         A-2574-11T1
            Dwyer Connell & Lisbona, attorneys for
            respondent FMJ Construction in A-2574-11
            join in the briefs of respondents AJD
            Construction Co., Inc. and the developers.

            Gartner & Bloom, attorneys for respondent
            South Shore Contracting in A-2574-11 join in
            the briefs of respondents AJD Construction
            Co., Inc. and the developers.

            Faust Geotz Schenker & Blee, attorneys for
            respondent Jose DeMoura in A-2574-11 join in
            the briefs of respondents AJD Construction
            Co., Inc. and the developers.

            Respondent Senergy,       Inc.     in    A-2574-11     has
            not filed a brief.

            Respondent Vincent J.           Barone   in     A-2574-11
            has not filed a brief.

            Respondent Vannwall Construction Corp. in A-
            2574-11 has not filed a brief.

      The opinion of the       court was delivered by

Susan L. Reisner, P.J.A.D.

      In   these   two     appeals,   which    we    have    consolidated      for

purposes of this opinion, plaintiff Port Liberte II Condominium

Association (Association or plaintiff) appeals from orders dated

May 13, 2010 and September 29, 2010, denying its motion to amend

its    complaint      in     Docket     No.      L-1222-08        and    denying

reconsideration, and orders dated September 23, 2011, October

12, 2011, December 21, 2011, and January 20, 2012, granting

summary    judgment      dismissing   its     complaint      in   L-1222-08    and

Docket No. L-3035-10, and December 21, 2011, denying plaintiff's




                                      10                                 A-2574-11T1
motion to reinstate the complaint in L-l222-08.               For the reasons

that follow, we reverse the orders on appeal and remand these

cases to the Law Division for further proceedings consistent

with this opinion.

      Despite the extensive record, the issues are limited:                   (1)

Did the trial court err as a matter of law in dismissing the

Association's complaints on the grounds that the Association did

not   obtain   the    unit   owners'     approval        to    institute      the

litigation,    in violation of the Association's by-laws? and (2)

Did the trial court abuse its discretion in denying plaintiff's

motion to amend its complaint?

      We conclude that, to the extent defendants had an interest

in ensuring that plaintiff was the proper party to pursue the

lawsuit, so as to avoid future litigation by dissenting unit

owners, defendants' interest was satisfied when, in 2009 and

2011, the unit owners voted to authorize the lawsuit.                The trial

court misconstrued the by-laws - and disserved the unit owners'

interests - in holding that the owners could not ratify the

Association's action after the lawsuit was filed.                    Moreover,

despite   their   disingenuous     expressions      of    concern     for     the

owners'   financial   interests,    defendants   have         no   standing    to

enforce the unit owners' rights under the by-laws.                   Hence, we

conclude that the trial court erred in dismissing the lawsuit.




                                    11                                 A-2574-11T1
We   also    find   that   the   trial     court    mistakenly     exercised        its

discretion in denying the motion to amend the complaint, thereby

requiring the filing of a second lawsuit.

                                           I

      The    pertinent     facts    are    undisputed     and     can    be    stated

briefly for purposes of this appeal.                  The Association, a non-

profit corporation, is the owner, and has legal responsibility

for, the common elements at a 225-unit condominium development

in   Jersey    City.       The     development      was   completed      in      2004.

According to the Association's complaint, during the transition

period, in which the developer was handing over control of the

development to the Association, the Association and its members

discovered a broad array of alleged construction defects in the

buildings including the common areas.                After lengthy efforts to

negotiate a settlement, the Association filed suit in March 2008

against      the    developers,      the       general    contractor      (Applied

Development Corporation), and numerous subcontractors.

      At the time the suit was filed, settlement efforts were

still   ongoing,     but   the     statute     of   limitations    was    about      to

expire.      According to plaintiff, due to the press of time, it

filed this lawsuit without obtaining the approval of the unit

owners, as required by Section 4.7C of the Association's by-

laws.       That provision states that certain questions "must be




                                          12                                  A-2574-11T1
decided by a vote of the Members at a special meeting called to

decide each specific issue respectively, after written notice of

the   question      has    been     forwarded      to    each     Member."         With

exceptions not relevant here, those questions include:                             "The

commencement of any litigation by the Board of Trustees."

      After    further          negotiations       with        defendants     proved

fruitless, the Association called a meeting of the unit owners

pursuant to Section 4.7C, to obtain their approval for the Board

of Trustees to pursue the litigation and to borrow money to fund

it.   At the October 12, 2009 meeting, the unit owners present

voted 72 to 3 to obtain the loan and pursue the litigation.

Thereafter,    no      unit     owner   objected    to    the    vote,    sought     to

intervene in the lawsuit, or otherwise legally questioned the

Association's authority to conduct the litigation pursuant to

the by-laws.      The Association duly pursued the lawsuit, massive

amounts of discovery were taken, and the complaint was amended

several times.

      In May 2011, defendants filed a summary judgment motion,

seeking   to   dismiss        the   complaint      on    the    grounds     that    the

Association      had      not     properly    obtained         the   unit    owners'

authorization before filing the lawsuit.                       Notwithstanding the

October 12, 2009 meeting and the 72-3 vote of the unit owners in

favor of pursuing the litigation, the trial judge granted the




                                         13                                  A-2574-11T1
motion and dismissed the complaint.                            The court reasoned that,

absent    pre-suit       approval,      the     Association            lacked     standing        to

file the lawsuit.3             On October 24, 2011, the Association held

another meeting of the unit owners, for the purpose of asking

them   to    ratify      the    filing     of      the     litigation.            The      members

approved the ratification by a vote of 65 to 1.                             The Association

then moved to reinstate the complaint; the trial court denied

the    motion      on    the     grounds      that        lack     of     standing         at    the

commencement of the suit could not be cured.

       Meanwhile, the court had denied plaintiff's motion to file

a fourth amended complaint adding claims concerning structural

defects     in     the   common     areas.           As    a     result,     in       2010,      the

Association filed a separate lawsuit addressing those claims (L-

3035-10).        That    lawsuit    was       also        the     subject       of    the       2011

ratification vote by the unit owners.                          Despite the overwhelming

approval of the unit owners, the trial court dismissed that

second      lawsuit      in    January     2012,          on     the    grounds       that       the

Association lacked standing to file it.                                As a result of the

dismissal     of    both       lawsuits,      the     unit       owners    faced        what     the

Association        contended      was    an     $18      million        expense       to    repair




3
   The court also found                 that       the     2009        meeting       notice      was
insufficiently specific.



                                              14                                           A-2574-11T1
construction       defects    in    the   common      areas,   without      recourse

against the builders and other defendants.

                                          II

       We review a trial court's grant of summary judgment de

novo, using the Brill standard.                Prudential Prop. and Cas. Ins.

Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif.

denied, 154 N.J. 608 (1998); Brill v. Guardian Life Ins. Co. of

Am.,   142   N.J.    520,    540    (1995).      We   review    a   trial    court's

decision to grant or deny a motion to amend the complaint for

abuse of discretion.         See Kernan v. One Wash. Park Urban Renewal

Assocs., 154 N.J. 437, 457 (1998).

       The   Condominium      Act     (Act),     N.J.S.A.      46:8B-1      to   -38,

authorizes     a    condominium      association       to    file   suit     against

builders and other third parties for damage to the common areas.

Siller v. Hartz Mtn. Assocs., 93 N.J. 370, 377-78 (1983); see

N.J.S.A. 46:8B-15.           In fact, absent an association's wrongful

failure to file such a suit, the Act gives the association the

exclusive authority to file such lawsuits for damage to the

common areas.        Siller, supra, 93 N.J. at 380.                   "A sensible

reading of the [Act] leads to the conclusion that such causes of

action belong exclusively to the association, which, unlike the

individual unit owner, may apply the funds recovered on behalf

of all the owners of the common elements."                  Id. at 381.      When an




                                          15                                A-2574-11T1
association files suit for damages to the common areas, it may

assess    the    litigation   costs   proportionately   against    the   unit

owners, as part of the common charges.         Id. at 378 n.7.

    In construing the Act, the Court noted the important policy

reasons    for    giving   associations,    rather   than   unit    owners,

standing to sue under the Act:

            Avoidance   of   a   multiplicity  of   suits,
            economic savings incident to one trial,
            elimination of contradictory adjudications,
            expedition in resolution of controversies,
            accomplishment of repairs, and the positive
            effect   on    judicial   administration   are
            supportive policy reasons.      Moreover, the
            financial burden on an individual owner may
            be so great and so disproportionate to his
            potential recovery that he could not or
            would not proceed with litigation.

            [Id. at 379 (footnote omitted).]

    If an association wrongly fails to act, or proceeds with

litigation wrongfully, a unit owner may file a derivative suit

against the association:

            This is not to say that a unit owner may not
            act on a common element claim upon the
            association's failure to do so.      In that
            event the unit owner's claim should be
            considered derivative in nature and the
            association must be named as a party. Rule
            4:32-5   would   be   applicable. That   Rule
            governs   actions   "brought   to enforce   a
            secondary right on the part of one or more
            shareholders in an association, incorporated
            or unincorporated, because the association
            refuses to enforce rights which may properly
            be asserted by it."




                                      16                            A-2574-11T1
            [Id. at 381.]

      In   rejecting   a   narrow   construction    of   an   association's

standing to sue for damage to the common elements, we have held

that:

            The    unique     relationship       between    a
            condominium association and a developer,
            created by statute, allows an association to
            step into the developer's shoes when control
            is passed to the association. N.J.S.A.
            46:8B-12.1a. "[T]he clear import, express
            and implied, of the statutory scheme is that
            the association may sue third parties for
            damages to the common elements, collect the
            funds   when   successful,     and    apply   the
            proceeds to repair the property." Siller v.
            Hartz Mtn. Assocs., 93 N.J. 370, 377 (1983).
            Under the Condominium Act, the association
            "shall be responsible for the administration
            and   management   of    the   condominium    and
            condominium property, including but not
            limited to the conduct of all activities of
            common   interest    to    the   unit    owners."
            N.J.S.A.    46:8B-12.      "Whether     or    not
            incorporated, the association shall be an
            entity which shall act through its officers
            and may enter into contracts, bring suit
            and be sued." N.J.S.A. 46:8B-15(a). An
            association    "may     assert     tort    claims
            concerning    the     common     elements     and
            facilities of the development as if the
            claims were asserted directly by the unit
            owners individually." N.J.S.A. 46:8B-16(a).

            [Port Liberte Homeowners Ass'n v. Sordoni
            Constr. Co., 393 N.J. Super. 492, 503 (App.
            Div.), certif. denied, 192 N.J. 479 (2007).]

      In Port Liberte v. Sordoni, we held that the trial court's

ruling - precluding the association from suing a contractor on

the   grounds   that   the   association   lacked    standing     -     was    a



                                     17                               A-2574-11T1
miscarriage        of   justice       and    contrary     to     the       purpose   of    the

Condominium Act.

             To say that plaintiffs do not have standing
             to sue Dryvit because PLP, the now-bankrupt
             developer, was the party to whom the
             misrepresentations   were    made    and    not
             plaintiffs, produces an unjust result and
             is   contrary  to  the    legislative    scheme
             permitting    a    condominium      homeowners
             association to institute suit to recover
             damages to the common elements. N.J.S.A.
             46:8B-14, -15(a), and -16(a).

             [Id. at 501-02.]

      We     reach      a    similar        conclusion        here.    Given       that    the

Association was legally responsible for the upkeep of the common

areas and was authorized by statute to sue for damage to those

areas, we conclude that the Association had standing to file the

lawsuit.      See R. 4:26-1.                In other words, it had a concrete

financial interest in the litigation, was genuinely adverse to

defendants, and was the only entity with statutory power to file

the   complaint.            See    Siller,    supra,     93    N.J.    at     381;   Belmont

Condo. Ass'n v. Geibel, 432 N.J. Super. 52 (App. Div.) (taking a

broad      view    of   an        association's    standing           to    pursue    claims

concerning        the   common       areas),    certif.        denied,       ___   N.J.    ___

(2013); Spinnaker Condo. Corp. v. Zoning Bd. of Sea Isle City,

357 N.J. Super. 105, 110 (App. Div.) (reviewing general rules of

standing), certif. denied, 176 N.J. 280 (2003).                             However, under

the by-laws, the Association did not have legal authorization to



                                              18                                     A-2574-11T1
file the lawsuit on the date the complaint was filed.                             See

N.J.S.A. 46:8B-15 (an association's powers are subject to the

by-laws).         The question is whether the unit owners could remedy

that lack of authorization by voting to ratify the filing.                         We

conclude that they could.

       We    find    it   would      be    contrary   to    the   purpose   of    the

Condominium Act, and to the spirit and purpose of the by-laws

themselves, for the court to deny the unit owners a chance to

ratify      the    litigation     before     dismissing     it.     As   defendants

acknowledge, Section 4.7C of the by-laws was intended to protect

the unit owners' financial interests by requiring pre-approval

of possibly expensive litigation.                 However, the owners clearly

have an equally great - if not greater - financial interest in

recovering damages to repair the common areas, because otherwise

they   will       have    to   pay   for    the   repairs    themselves     through

assessments.         We will not enforce a statute or regulation in a

manner that would produce an absurd result, contrary to its

purpose.      See Hubbard v. Reed, 168 N.J. 387, 392 (2001).                     Here,

it would be absurd to construe paragraph 4.7C in a way that

would strip the owners of a cause of action designed to recoup




                                            19                              A-2574-11T1
payment    for   construction         defects,     if   they    are   willing    to

authorize the litigation after it was filed.4

     The   concept     of   ratification      is    well   understood     and   has

frequently been applied in situations where an entity has the

legal   power    to   perform    an    act,   so    long   as   it    follows   the

required formalities.           In Grimes v. City of East Orange, 288

N.J. Super. 275 (App. Div. 1996), we explained the difference

between an ultra vires act, which cannot be ratified, and an

intra vires act, which can be ratified:

           Acts that are ultra vires are void and may
           not be ratified, while intra vires acts may
           be.   An   act   is   ultra    vires if   the
           "municipality     [was]     utterly   without
           capacity" to perform the act. On the other
           hand, an intra vires act is one that is
           merely "voidable for want of authority."
           Thus, where, for example, a contract is
           entered into by "an unauthorized agency" but
           the municipality has the power to enter into
           such contracts, the contract may be later
           ratified by the municipal body having the
           power in the first instance to make the
           contract. . . .     This is the general rule
           recognized throughout the country.

                Applying the forgoing principles to
           this case, we are satisfied that Harman's
           invalid appointment to the position of Chief
           of Police by the Commissioners was capable
           of   ratification.  This   is   so  because,

4
  This case does not present the issue of whether unit owners
might have a cause of action against an association for
commencing litigation without prior authorization. As previously
noted, in this case, none of the unit owners pursued objections
to the litigation.



                                         20                               A-2574-11T1
              although the Commissioners were unauthorized
              to make the appointment, it was within the
              power of the municipality to do so through
              the act of the Mayor with confirmation by
              the Council.   As such, Harman's appointment
              was simply voidable unless ratified.

              [Id. at 279-80 (citations omitted).]

       Ratification      must       be     accomplished       "'with        the     same

formalities     required     for     the    original     exercise      of    power.'"

Ibid. (citation omitted).            If so accomplished, the ratification

"'relates back to the date of the original action[.]'"                            Id. at

281 (citation omitted); see also Casamasino v. Jersey City, 158

N.J.   333,    345    (1999).       We     conclude    that    is   precisely        the

situation here, where the unit owners ratified the Association's

action in a formal vote and, by doing so, authorized the filing

of the lawsuit, nunc pro tunc.                  See City of Trenton v. Fowler-

Thorne Co., 57 N.J. Super. 196, 200 (App. Div. 1959) ("[A]n

action instituted by an agent without proper authorization from

the plaintiff will not, for that reason, be dismissed in the

face of subsequent ratification by the principal."), aff'd, 32

N.J.    256    (1960)    (affirming        specifically       on    the     issue     of

ratification).

       We   also     agree   with    plaintiff        that    defendants      had     no

standing to enforce the by-laws.                 As noted, the evident purpose

of Section 4.7C was to protect the financial interests of the

unit owners against improvident legal expenses undertaken by the



                                           21                                 A-2574-11T1
Association.          Defendants, who are strangers to the relationship

between the Association and the unit owners, have no standing to

enforce        the    by-laws        or    to     protect       the       owners'         financial

interests.           See        Abbott    v.    Burke,    206     N.J.     332,      371     (2011)

(ordinarily a party may not file suit asserting the rights of

another); N.J.S.A. 46:8B-16(b) (providing that the association,

a unit owner, or a mortgage holder may file suit for failure to

comply     with           the    by-laws).             Further,       because        defendants'

interests were adverse to the unit owners, letting them enforce

the     unit    owners'          interests       would     be     akin       to     letting      the

proverbial fox protect the interests of the chickens.

      On this record, there is no dispute that the owners voted

twice     to    authorize          this        litigation.           Those        votes     clearly

established that the Association was the only proper party to

pursue this lawsuit, see R. 4:26-1; Belmont, supra, 432 N.J.

Super. at 74, and satisfied any legitimate concern defendants

may     have    had        about     the       possibility      of     duplicative          future

litigation.          That should have been the end of the issue.

      Billig v. Buckingham Towers Condominium Association I, 287

N.J. Super. 551 (App. Div. 1996), on which defendants rely, does

not answer the question in this case.                           In Billig, we expressed

disapproval          of    a    building       manager    filing      a    foreclosure         suit




                                                  22                                       A-2574-11T1
against a unit owner, apparently without prior authorization by

the association.    In that context we observed:

         There are several other matters we are
         constrained to address. First, is the issue
         plaintiffs raise respecting the management
         of the association and, more particularly,
         the   necessity    for   a  formal   resolution
         authorizing litigation. Irrespective of the
         precise form that authorization takes, we
         think it evident that the decision to engage
         in litigation, whether foreclosure or the
         assertion of affirmative claims against a
         unit owner or a third party, must be a
         collective    decision      of    the    board.
         Litigation ought to be a last resort, not a
         first   one.    It    is   expensive,   it   is
         burdensome, and when it involves a claim
         against a unit owner, it may well be
         counter-productive     to   the   harmony   and
         commonality     required      for    successful
         community living.     Clearly, before the unit
         owners can be burdened with the financial
         onus and other burdens of litigation, they
         must be assured that their elected board has
         made reasonable efforts otherwise to resolve
         the dispute, that the members of the board,
         with as full a briefing as possible, have
         made a collective decision, and that the
         decision is properly memorialized.

         [Id. at 564.]

    As is clear from the above-quoted language, Billig did not

address whether an association could obtain ratification, after

the fact, for a lawsuit initially filed without the required

authorization.     Nothing in the opinion suggests it could not do

so, particularly in a case like this one, where the Association

filed the complaint but continued its settlement efforts, and




                                 23                        A-2574-11T1
did not pursue the litigation in earnest until the unit owners

had authorized it.5

       Defendants' reliance on Deutsche Bank v. Mitchell, 422 N.J.

Super. 214 (App Div. 2011), which the trial court also cited, is

likewise unpersuasive.          Mitchell held that a bank could not cure

an initial lack of standing in a foreclosure case by obtaining

an   assignment     of   the    mortgage       and   then    filing   an   amended

complaint.     Id. at 224-25.             However, later foreclosure cases

have   recognized    appropriate          remedies   short    of   dismissal     for

technical    defects     in    foreclosure      filings,     particularly     where

defendants delayed in raising those defenses.                      See U.S. Bank

Nat'l Ass'n v. Guillaume, 209 N.J. 449, 475-76 (2012); Russo,

supra, 429 N.J. Super. at 100-01; see also Bank of New York v.

Raftogianis, 418 N.J. Super. 323, 356 (Ch. Div. 2010) (stating

that   dismissal    for       lack   of    standing,   rather      than    allowing

plaintiff to cure, may be inappropriate where defendants delayed

in raising the issue).


5
  Likewise, in the out-of-state cases defendants cite, the
associations did not obtain a ratification vote from the unit
owners. See Peninsula Prop. Owners Ass'n v. Crescent Res., LLC,
614 S.E.2d 351 (N.C. Ct. App.), appeal dismissed and disc.
review denied, 626 S.E.2d 648 (N.C. 2005); River Plaza
Homeowner's Ass'n v. Healey, 904 N.E.2d 1102 (Ill. App. Ct.
2009). Further, under North Carolina and Illinois law, standing
is jurisdictional, while under New Jersey law it is not.    See
Deutsche Bank v. Russo, 429 N.J. Super. 91, 101-02 (App. Div.
2012).



                                          24                               A-2574-11T1
    In this case, where defendants waited years to raise the

issue    of   plaintiff's   authority      to   file   the   lawsuit,      it   is

particularly     appropriate     to   permit    plaintiff    to    obtain       the

owners' ratification, instead of ordering dismissal.6                    On this

record, if the court questioned the efficacy of the 2009 vote to

approve   the    litigation,    the   appropriate      procedure   would     have

been to stay the lawsuit for a short period of time to permit a

re-vote, rather than dismissing the case.              See Guillaume, supra,

209 N.J. at 477-78 (citing GE Capital Mortg. Servs., Inc. v.

Weisman, 339 N.J. Super. 590, 595 (Ch. Div. 2000)) (approving

remedies other than dismissal for violations of statutory pre-

filing    requirements).       Accordingly,      we    reverse     the    orders

dismissing the complaints in both cases.

              [At the court's direction, the discussion of
              issue   (2)  has   been   omitted  from  the
              published version of the opinion].

    Reversed and remanded.




6
  In light of our holding on ratification, we need not address
plaintiff's argument that the by-law is invalid.




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