Sterling Park v. City of Palo Alto

Filed 7/17/12 Sterling Park v. City of Palo Alto CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
STERLING PARK, L.P. et al.,
Plaintiffs and Appellants,
v.
CITY OF PALO ALTO,
Defendant and Respondent.
H036663
(Santa Clara County
Super. Ct. No. 1-09-CV154134)
Defendant City of Palo Alto (City) conditions its approval of certain residential
development applications upon the developer‟s compliance with City‟s below market rate
(BMR) housing program. Plaintiffs Sterling Park, L.P. and Classic Communities, Inc.,
sued City, challenging the BMR housing exactions City required for approval of their
development. The trial court granted summary judgment for City, finding that the
complaint was time-barred. Plaintiffs had argued that the action was governed by a
portion of the Mitigation Fee Act (Gov. Code, §§ 66020, 66021),1 which allows a
developer to obtain reimbursement of certain development fees paid under protest.
Under those sections, the statute of limitations does not begin to run until City gives the
developer notice of the amount of the fees and the right to file a protest. (§ 66060, subd.
(d)(1).) Plaintiffs claimed that City never gave them the notice required to trigger the
running of the statute and, therefore, their suit was filed timely.
1 Hereafter all unspecified section references are to the Government Code.

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The trial court rejected plaintiffs‟ position and accepted City‟s contention that the
applicable statute of limitations is section 66499.37, which gives a plaintiff 90 days from
the date of the “decision . . . concerning a subdivision” to challenge the decision. Since
the decision conditioning plaintiffs‟ subdivision upon compliance with the BMR program
occurred well over a year before suit was filed, the time to file suit had expired. The
court allowed the defense even though City had not cited section 66499.37 in its answer.
We shall affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs owned two lots totaling 6.5 acres on West Bayshore Road in Palo Alto.
Plaintiffs planned to demolish existing commercial improvements and construct 96
residential condominiums on the site. The proposed development was subject to City‟s
BMR housing program, which is set forth in the Palo Alto Municipal Code (PAMC).
PAMC section 18.14.030, subdivision (a) provides, “Developers of projects with five or
more units must comply with the requirements set forth in Program H-36 of the City of
Palo Alto Comprehensive Plan.” Program H-36 of City‟s Comprehensive Plan appears in
the plan‟s Housing Element, Chapter 4 (hereafter, Program H-36). As pertinent here,
Program H-36 requires that housing projects involving the development of five or more
acres must provide at least 20 percent of all units as BMR units. “For an application to
be determined complete, the developer must agree to one or a combination of the
following requirements or equivalent alternatives that are acceptable to the City.”
(Program H-36, p. 26, italics added.) One of the requirements applicable to plaintiffs‟
project is that three fourths of the BMR units “be affordable to households in the 80 to
100 percent of median income range, and one-fourth may be in the higher price range of
between 100 to 120 percent of the County‟s median income.” (Ibid.) The developer may
provide off-site units or vacant land if providing on-site units is not feasible. If no other
alternative is feasible, “a cash payment to the City‟s Housing Development Fund, in lieu
of providing BMR units or land, may be accepted.” (Id. at p. 27.) The in-lieu payment

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for projects of five acres or more is 10 percent of the greater of the actual sales price or
fair market value of each unit. (Ibid.)
Plaintiffs submitted their initial application for approval of the project in 2005.
City‟s planning staff found the project would not cause any significant adverse
environment impact and recommended a negative declaration as allowed by the
California Environmental Quality Act. (See Cal. Code Regs., tit. 14, § 15020.) City‟s
Architectural Review Board (ARB) recommended approval of the design and site plan in
March 2006.
In a letter dated June 16, 2006 (the BMR letter), City set forth the terms of an
agreement between plaintiffs and City‟s planning staff pursuant to which plaintiffs agreed
to provide 10 BMR units on the project site and pay in-lieu fees of 5.3488 percent of the
actual selling price or fair market value of the market-rate units, whichever was higher.
The BMR letter contains an estimate of the anticipated sales price for the BMR units and
states that the price may increase or decrease depending upon the market at the time of
the actual sale. The opening paragraph of the BMR letter states: “This letter summarizes
the agreement between Classic Communities, Inc. . . . and the Director of the Department
of Planning and Community Environment . . . regarding satisfaction of the provisions of
the City of Palo Alto‟s [BMR] Program for the [ARB] application for the 96-unit
residential condominium development . . . . [¶] . . . You and Planning Division staff have
discussed and negotiated the terms of this agreement, and the signature of Classics
corporate officers on this letter confirms that Classics agrees to these terms and
conditions. On March 23, 2006 the Director issued a conditional approval letter of the
ARB‟s approval of the Project, with execution of the BMR agreement listed as one of the
Project‟s conditions. The Director‟s action was appealed and the appeals will be
considered by the City Council in June 2006. You have also submitted an application for
a vesting tentative subdivision map to allow the residential units to be sold separately as
condominiums. The provisions of this BMR letter agreement must be referenced in the

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subdivision map conditions and incorporated into a formal BMR agreement to be
recorded concurrently with the final subdivision map agreement, if the Director‟s
approval is upheld by Council.” Scott Ward, vice president of plaintiff, Classic
Communities, Inc., executed the BMR letter on June 19, 2006, the same day the city
council upheld the ARB‟s approval of the project.
City approved plaintiffs‟ application for a tentative subdivision map on November
13, 2006. In recommending approval of the application for a final subdivision map City
staff noted, “The map satisfies all approval conditions for the Tentative Map, including
the preparation of a Subdivision Improvement Agreement and BMR Agreement.” The
application for a final subdivision map was approved September 10, 2007. A document
entitled “Regulatory Agreement Between Sterling Park, LP and City of Palo Alto
Regarding [BMR] Units” was executed on September 11, 2007 and recorded November
16, 2007. This document referred to and attached the 2006 BMR letter.
Over a year later, when the new units were being finished, City began requesting
conveyance of the BMR designated homes. On July 13, 2009, plaintiffs submitted a
“notice of protest” to City, claiming the prior agreements were signed under duress and
arguing that the BMR housing requirements are invalid. When City failed to respond to
the protest, plaintiffs filed this case on October 5, 2009. Plaintiffs sought an injunction
and a judicial declaration that the BMR requirements are invalid and “that the City may
not lawfully impose such BMR affordable housing fees or exactions as a condition of
providing building permits or other approvals for the Project.” Plaintiffs‟ third cause of
action cited sections 66020 and 66021 and sought “restitution or equitable relief for the
compelled conveyance of houses under restrictive terms.”
City at first demurred to the complaint, arguing that the third cause of action was
barred by the time limit found in section 66020 and that the entire action was barred by
Code of Civil Procedure section 338, subdivision (a), which applies a three-year time
limit to actions based upon “a liability created by statute.” The trial court overruled the

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demurrer. Thereafter, City filed an answer, including as its fifth affirmative defense, “the
applicable statutes of limitation,” again citing Code of Civil Procedure section 338 and
section 66020. Later, City‟s answers to form interrogatories also cited these two code
sections as bases for City‟s defense. City did not mention section 66499.37 in any of
these documents.
Trial was set for September 27, 2010. At City‟s request, time was shortened for
notice of cross motions for summary judgment. City moved for summary judgment on
statute of limitations grounds, this time adding section 66499.37 to its argument that the
case was filed too late. Plaintiffs‟ cross-motion for summary judgment argued that City‟s
BMR housing program was invalid as a matter of law. Plaintiffs‟ opposition to City‟s
motion maintained that section 66499.37 did not apply and that City was barred from
relying upon that code section because it had not raised the defense in its answer.
The trial court granted City‟s summary judgment motion and denied plaintiffs‟
cross-motion. In a footnote, the trial court acknowledged that City had not raised section
66499.37 in its answer. Citing Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367
(Cruey) and FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385, the
trial court concluded that it would allow the defense because plaintiffs “will not suffer
any prejudice thereby.”
Plaintiffs moved for a new trial or for an order vacating the trial court‟s prior order
arguing, in more detail than it had in its summary judgment papers, that City was barred
from relying upon section 66499.37. The trial court denied the motions and entered
judgment in favor of City. Plaintiffs have timely appealed from the judgment.
II. CONTENTIONS
The two statutes of limitations that we will consider, section 66020 and section
66499.37, are found, respectively, in the Mitigation Fee Act (§ 66000 et seq.) and the
Subdivision Map Act (§ 66410 et seq.). Both impose short time periods for filing an
action to challenge specified development fees. Section 66020 imposes a 180-day time

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period and section 66499.37 is a 90-day statute. Given the differing procedural
requirements of the two code sections, this action might be timely under section 66020
but not under section 66499.37. Not surprisingly, plaintiffs maintain that section 66020
is the applicable statute and that section 66499.37 is inapplicable. Plaintiffs also argue
that even if section 66499.37 is the applicable statute of limitations, City was not entitled
to rely upon it because it had failed to raise it at any time prior to filing its summary
judgment motion.2
III. STANDARD OF REVIEW
“An appellate court reviewing a judgment of dismissal after an order granting
summary judgment must review the record de novo to determine whether the moving
party is entitled to summary judgment as a matter of law or whether there exist genuine
issues of material facts. [Citation.] [¶] Code of Civil Procedure section 437c, subdivision
(o)(2), mandates a burden-shifting which requires defendant to show a complete defense
to the action or that one or more elements of the cause of action cannot be established. If
defendant makes this showing, the burden shifts to the plaintiff to show that a triable
issue of one or more material facts exists as to that cause of action or defense thereto.”
(Cruey, supra, 64 Cal.App.4th at p. 361.)
With regard to plaintiffs‟ claim that the trial court erred in considering the defense
of section 66499.37, we view that decision as we would a grant of leave to amend the
answer. The grant or denial of leave to amend is an exercise of discretion that should not
be disturbed on appeal unless it has been clearly abused. (Mesler v. Bragg Management
Co. (1985) 39 Cal.3d 290, 296-297.)
2 In its summary judgment motion City also cited the statute of limitations
contained in section 65009, another code section it had not listed in its answer. City
relies upon that section as well as section 66499.37 on appeal. Since we conclude that
section 66499.37 applies, we do not consider the alternative argument.

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IV. DISCUSSION
A. Applicability of sections 66020 and 66021
We begin with plaintiffs‟ argument that this case is subject to section 66020.
Sections 66020 and 66021 allow a developer to protest the imposition of “a fee, tax,
assessment, dedication, reservation, or other exaction . . . the payment or performance of
which is required to obtain governmental approval of a development . . .” (§ 66021, subd.
(a)) and to obtain a refund of any overpayments (§ 66020, subd. (e)). Protest is effected
by paying the fees and serving a written notice of protest upon the local agency. (Id.
subd. (a).) The local agency must provide the applicant written notice of the amount of
the fees when imposing them and notice that the applicant has 90 days to file a protest.
(Id. subd. (d)(1).) An applicant who has filed a protest then has 180 days to file an action
“to attack, review, set aside, void, or annul the imposition of the fees, dedications,
reservations, or other exactions imposed . . . .” (Id. subd. (d)(2), italics added.)
Plaintiffs argue that the phrase “other exactions” as used in these code sections
applies to the BMR housing requirements imposed upon them here. The argument is
identical to one raised in Trinity Park, L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th
1014 (Trinity Park), in which developers (including one of the plaintiffs in this case)
challenged another city‟s BMR housing requirements. In Trinity Park, the City of
Sunnyvale conditioned approval of a development permit and tentative subdivision map
upon compliance with that city‟s BMR housing ordinance. (Id. at p. 1021.) The
developers signed an agreement with the city, promising to sell five units at specified
below market prices but about a year later the developers sent the city a notice protesting
the requirements under sections 66020 and 66021. (Trinity Park, supra, at p. 1022.) The
developers then sued the city seeking to invalidate the BMR agreement, which they
maintained had been executed under duress. The trial court sustained the city‟s demurrer
citing section 66499.37. (Trinity Park, supra, at pp. 1045-1046.)

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On appeal, the developers argued that the BMR requirements fell within the
meaning of sections 66020 and 66021. Since the city had never provided notice of the
right to protest, their protest and subsequent civil suit were timely. This court rejected
the argument, holding that these code sections did not apply. The phrase “other
exactions” as used in sections 66020 and 66021 does not refer to the universe of
exactions that may be imposed in connection with a development. Rather, “the statutory
language of the relevant provisions of the Mitigation Fee Act and the legislative history
of sections 66020 and 66021 demonstrate that the Legislature intended that the exactions
that may be protested under the Mitigation Fee Act are those exactions imposed for the
purpose of „defraying all or a portion of the cost of public facilities related to the
development project.‟ ” (Trinity Park, supra, 193 Cal.App.4th at p. 1043, quoting §
66000, subd. (b) and citing Barratt American, Inc. v. City of Rancho Cucamonga (2005)
37 Cal.4th 685, 696.) Because the Sunnyvale municipal code stated that the purpose of
the BMR requirement was to “ „enhance the public welfare by ensuring that future
housing development contributes to the attainment of the housing goals,‟ ” and, because
there was no suggestion in the material under review that the BMR requirements were
designed to defray the cost of public facilities related to the development, this court
concluded that sections 66020 and 66021 were inapplicable to the BMR housing
concessions imposed in that case. (Trinity Park, supra, at pp. 1040-1041.)
The present case is almost identical to Trinity Park.3 As explained in the preface
to Program H-36, “[City‟s] BMR program is intended to increase the supply of for-sale
housing and rental housing for individuals and families whose incomes are insufficient to
afford market rate housing.” (Program H-36, at p. 26.) PAMC section 18.14.020 states
that the purposes of the BMR housing program are to “[e]ncourage the development and
3 The parties did not have benefit of Trinity Park as the opinion was filed about a
month after judgment was entered in this case.

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availability of housing affordable to a broad range of households with varying income
levels . . . . [¶] . . . [p]romote the city‟s goal to add affordable housing units to the city‟s
housing stock . . . . [¶] . . . [o]ffset the demand on housing that is created by new
development. . . . [¶] . . . [m]itigate environmental and other impacts that accompany new
residential and commercial development . . . . [and] [¶] . . . increase the supply of for-sale
and rental housing for families and individuals employed in Palo Alto whose incomes are
insufficient to afford market rate housing. . . .” These listed purposes do not describe an
attempt to defray the cost of public facilities necessitated in a development project. The
purpose is to increase the number of residences in the City where people of modest
means can afford to live. Under Trinity Park, sections 66020 and 66021 do not apply.
Plaintiffs argue that Trinity Park was wrongly decided and that demands for
affordable housing units or in-lieu fees are “exactions” subject to sections 66020 and
66021. Plaintiffs repeat many of the same arguments raised in the Trinity Park case. We
decline to revisit the issue. Plaintiffs also argue that even if Trinity Park‟s interpretation
of “other exaction” is correct, it is distinguishable because plaintiffs were required to pay
in-lieu fees whereas the Trinity Park plaintiffs were not required to pay fees. The
distinction makes no difference that we can see. The in-lieu fees are imposed if City
determines that BMR designation of the required number of on-site units, off-site units,
or vacant land is not feasible. Fees are payable to City‟s Housing Development Fund.
There is no evidence that the fees go to defray the cost of public facilities necessitated by
the new development.
Plaintiffs further argue that Trinity Park is distinguishable because PAMC section
18.14.020, subdivisions (c) and (d) indicate that City‟s BMR exactions are intended for
the purposes Trinity Park described. We disagree. Subdivision (d) of PAMC section
18.14.020 describes one purpose of the ordinance, which is to “[m]itigate environmental
and other impacts that accompany new residential and commercial development by
protecting the economic diversity of the city‟s housing stock, with the goal of reducing

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traffic, transit and related air quality impacts, promoting jobs/housing balance and
reducing the demands placed on transportation infrastructure in the region.” That is, one
purpose of the BMR housing program is to improve air quality and reduce demand on
regional transportation infrastructure by insuring that people of all economic levels can
afford to live and work within the city limits rather than commute. This has nothing to do
with defraying the cost of public facilities necessitated by the new development itself.
Subdivision (c) of PAMC section 18.14.020, states that another purpose of the
BMR housing ordinance is to “[o]ffset the demand on housing that is created by new
development.” The only way a housing development could create a demand for housing
would be if the new development eliminated existing housing. We need not decide
whether an exaction imposed to offset lost housing could be subject to sections 66020
and 66021 because plaintiffs‟ project did not demolish existing housing; the BMR
exactions imposed upon them had nothing to do with replacement housing.
Given the express purposes of City‟s BMR housing program, and for all the
reasons set forth in Trinity Park, supra, 193 Cal.App.4th 1014, we conclude that sections
66020 and 66021 do not apply to the BMR housing concessions exacted from plaintiffs in
this case.
B. Applicability of Section 66499.37
We now turn to section 66499.37, which provides, “Any action or proceeding to
attack, review, set aside, void, or annul the decision of [a] . . . legislative body concerning
a subdivision, or of any of the proceedings, acts, or determinations taken, done, or made
prior to the decision, or to determine the reasonableness, legality, or validity of any
condition attached thereto, including, but not limited to, the approval of a tentative map
or final map, shall not be maintained by any person unless the action or proceeding is
commenced and service of summons effected within 90 days after the date of the
decision. . . .” As the court stated in Timberidge Enterprises, Inc. v. City of Santa Rosa
(1978) 86 Cal.App.3d 873, 886, section 66499.37 “manifests a legislative purpose that a

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decision such as that of the City, approving a subdivision map and attaching a condition
thereto, shall be judicially attacked within 180 days [now 90 days] of that decision, or not
at all.” (See also, Aiuto v. City & County of San Francisco (2011) 201 Cal.App.4th 1347,
1357 [facial challenge to BMR ordinance subject to § 66499.37; time began to run when
the ordinance was passed].)
In reviewing the trial court‟s conclusion that section 66499.37 applies to this
action, we again turn to Trinity Park, supra, 193 Cal.App.4th at page 1044, where this
court concluded that section 66499.37 applied to the BMR housing concession imposed
in that case because the action challenged “a condition of subdivision approval . . . .”
(Trinity Park, supra, at p. 1044.) Here, plaintiffs had to promise to comply with City‟s
BMR housing program before City would even consider the project. Plaintiffs‟ project
called for the merger of two lots into a 6.5 acre parcel and the subdivision of that parcel
into 96 separate condominiums. It would be difficult to characterize the action as
anything but a challenge to City‟s decision to make compliance with its BMR program a
condition of subdivision approval.
Plaintiffs argue that because the conditions were part of an agreement or had
something to do with ARB approval, there was no “decision . . . on a subdivision.”
Plaintiffs also maintain that compliance with the BMR housing program is “a gateway
condition” for having any development application accepted for processing, whether or
not it involved a subdivision. This, according to plaintiffs, means that BMR conditions
are imposed independently of the Subdivision Map Act and, thus, section 66499.37 does
not apply. But plaintiffs challenge the application of the BMR housing program to them.
Plaintiffs‟ project involved the subdivision of the property and, therefore, required
approval of a subdivision map pursuant to the Subdivision Map Act. City‟s approval of
the final subdivision map was conditioned upon plaintiffs‟ agreement to the terms
contained in the BMR letter. The case clearly challenges the “validity of any condition
attached” to City‟s “decision . . . concerning a subdivision.” The 90-day limitations

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period of section 66499.37 runs from the date of the decision being challenged. Here, the
decision being challenged is City‟s decision imposing the BMR exactions with which
plaintiffs would have to comply for approval of their subdivision. Whether we consider
the date of that decision to be June 2006, when City issued the BMR letter, November
2006, when City approved the tentative subdivision map, or September 2007, when the
final subdivision map application was approved, plaintiffs‟ 2009 complaint was untimely.
C. City‟s Failure to Plead Section 66499.37
Having concluded that section 66499.37 applies to make this case time-barred, we
now consider whether the trial court abused its discretion in considering it. The court
acknowledged that City had not named that code section in its answer but concluded,
citing Cruey, supra, 64 Cal.App.4th 356, that City could raise the defense on summary
judgment because plaintiffs would not be prejudiced.
Cruey was a defamation case in which the defendant moved for summary
judgment based upon the affirmative defense of privilege, which he had not raised in his
answer. (Cruey, supra, 64 Cal.App.4th at pp. 366-367.) The Court of Appeal observed:
“Although the general rule is that a privilege must be pled as an affirmative defense
[citation], recent California authority suggests an exception where the complaint alleges
facts indicating applicability of a defense or where the affirmative defense is raised
during a summary judgment proceeding. [Citations.] . . . Given the long-standing
California court policy of exercising liberality in permitting amendments to pleadings at
any stage of the proceedings [citation] and of disregarding errors or defects in pleadings
unless substantial rights are affected [citation], we believe that a party should be
permitted to introduce the defense of privilege in a summary judgment procedure so long
as the opposing party has adequate notice and opportunity to respond. Here, the defense
of privilege was asserted in the opening brief in the motion for summary judgment. [The
plaintiff] took the opportunity to respond by arguing the inapplicability of the privilege.
He has not shown that he was prejudiced by the process.” (Id. at p. 367; accord, Nieto v.

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Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 75.) The
same reasoning applies here.
It is true, as plaintiffs argue, that “the pleadings set the boundaries of the issues to
be resolved at summary judgment.” (Oakland Raiders v. National Football League
(2005) 131 Cal.App.4th 621, 648.) Thus, where the exclusive remedy of the Workers‟
Compensation statutes (Lab. Code, § 3600 et seq.) did not appear in the answer, the
defendant could not rely upon it to support a motion for summary judgment. (Dorado v.
Knudsen Corp. (1980) 103 Cal.App.3d 605, 611.) In such a case, the judgment must be
reversed and the defendant “permitted to amend to raise this defense.” (Ibid.) The
Dorado court noted that the defendant would not necessarily be “entitled to a summary
judgment on the basis of the showing already made.” (Ibid.)
In this case, City raised the question of timeliness from its very first pleading. By
citing FPI Development, Inc. v. Nakashima, supra, 231 Cal.App.3d at page 385, the trial
court referred to that court‟s concern that “it would be unfair to ground a ruling on the
inadequacy of the pleadings if the pleadings, read in the light of the facts adduced in the
summary judgment proceeding, give notice to the plaintiffs of a potentially meritorious
defense.” Given City‟s persistent focus on timeliness, plaintiffs necessarily had notice of
the potential defense. And, unlike the situation in Dorado, City would be entitled to
judgment on the basis of the showing already made. Had the trial court denied the
motion based upon City‟s failure to plead section 66499.37, given the courts‟ policy of
liberality in allowing amendments to a pleading, City would have amended its answer
and then succeeded, either by way of another summary judgment motion or at trial, on
the statute of limitations defense. Indeed, the lack of prejudice to which the trial court
referred here meant that plaintiffs‟ action would fail in the long run, even if the court
rejected City‟s defense on summary judgment. Under the circumstances, the exception to
the waiver rule described by Cruey applies. There was nothing to be gained by denying

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the motion. Accordingly, the trial court did not abuse its discretion in allowing the
defense.
Plaintiffs‟ reliance upon County of Los Angeles v. Commission on State Mandates
(2007) 150 Cal.App.4th 898, 912-913, and Minton v. Cavaney (1961) 56 Cal.2d 576, 581,
is misplaced. Both cases concern a statute of limitations that was raised for the first time
on appeal. That is not the case here; the issue was fully litigated below. Mitchell v.
County Sanitation Dist. (1957) 150 Cal.App.2d 366, is equally unavailing because that
case involved the public entity‟s express, intentional waiver of the statute and the
appellate court‟s refusal to allow the defense on appeal. (Id. at p. 369.)
Plaintiffs also argue that due to its delay in raising section 66499.37, City is
estopped from relying upon it altogether. We reject that argument as well. “The sine qua
non of estoppel is that the party claiming it relied to its detriment on the conduct of the
party to be estopped.” (Orange County Water Dist. v. Association of Cal. Water etc.
Authority (1997) 54 Cal.App.4th 772, 780.) Plaintiffs cannot show reliance, let alone
detrimental reliance. The estoppel doctrine does not apply.
We conclude that the trial court did not abuse its discretion in allowing City the
defense of section 66499.37 in its motion for summary judgment. Section 66499.37 bars
the instant action as a matter of law.

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V. DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.

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