BRYANT YOUNG v. SEBRING ASSOCIATES/THE EXCELSIOR II

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0777-07T10777-07T1

BRYANT YOUNG and

PAMELA PERKINS,

Plaintiffs-Appellants,

v.

SEBRING ASSOCIATES/THE

EXCELSIOR II,

Defendant-Respondent.

_______________________________

 

Submitted July 15, 2008 - Decided

Before Judges Parker and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3259-07.

Bryant Young and Pamela Perkins, appellants pro se.

Lester Schwab Katz & Dwyer, LLP, attorneys for respondents (Dennis M. Rothman, on the brief).

PER CURIAM

Plaintiffs Bryant Young and Pamela Perkins appeal from the August 29, 2007 order that dismissed their complaint against defendant Sebring Associates/The Excelsior II, "for failure to state a claim upon which relief can be granted." R. 4:6-2(e). We affirm.

This is the third complaint filed jointly or individually by plaintiffs, arising out of an incident that occurred on May 3, 2002. The facts alleged by plaintiffs in all three actions are, for all practical purposes, identical. The relevant facts, giving rise to plaintiffs' claims as gleaned from the present complaint, are as follows.

On May 3, 2002, the relationship of plaintiffs and defendant was that of tenant and landlord, respectively. Plaintiffs resided in Apartment 5E of an apartment building located in Hackensack (the Building), owned and/or managed by defendant. The Building is served by a concierge who, according to management's policy, is required to notify all tenants on their visitors entering the Building.

At approximately 9:30 p.m., approximately twenty plain clothed police officers entered the Building and proceeded to the concierge's desk. The police officers showed the concierge a picture of an individual they identified as Kevin Saxon, inquiring whether he was the "guy in Apartment 5E?" The concierge informed the police that Perkins resided in that apartment, after which one of the police officers yelled out "That's him," prompting the officers to run upstairs to plaintiffs' apartment, where Perkins was home alone. On hearing a knock on the apartment door, Perkins looked through its peephole and observed an elderly woman who asked to speak to her. Because Perkins had not received a telephone call from the concierge announcing a visitor, she assumed that the woman was a neighbor who may have been in distress.

On opening the door, the police overpowered Perkins, rushed in and arrested her. On Young's arrival a short time thereafter, he was arrested on a New York warrant. Following their arrests, Young and Perkins remained incarcerated in the Bergen County Jail for seven and ten days, respectively, before posting bail.

Plaintiffs' complaint alleges the following causes of action: 1) violation of their Fourth Amendment rights by the concierge granting the police access to their apartment and allowing the police to make warrantless arrests of plaintiffs (Count One); 2) violation of the covenant of quiet enjoyment by not announcing the police to Perkins when they entered the Building (Count Two); 3) violation of plaintiffs' rights of privacy by allowing the police into the Building (Count Three); 4) criminal trespass by allowing the police to trespass into plaintiffs' apartment (Count Four); 5) defamation and loss of quality of life (Count Five); 6) personal injury to Perkins (Count Six); and 7) economic damages of Perkins caused by loss of employment while she was unlawfully held in the Bergen County Jail (Count Seven).

On April 29, 2004, plaintiffs filed their first action in the United States District Court for the District of New Jersey against defendant and "Anthony/Scott Palmeri," defendant's owner, alleging violations of plaintiffs' civil rights, including a violation of their Fourth Amendment rights. On March 17, 2005, the District Court dismissed all Federal claims, determining that plaintiffs had failed to state a cause of action under 42 U.S.C.A. 1983. However, the court declined to exercise supplemental jurisdiction over the remaining State claims and tolled the relevant limitation periods for those claims for forty-five days, to permit plaintiffs to re-file those claims in State court. On February 13, 2006, the Third Circuit Court of Appeals affirmed. Perkins v. Sebring Assocs. The Excelsior II, 169 Fed. Appx. 686 (3d Cir. 2006). On October 2, 2006, the Supreme Court denied certiorari. Perkins v. Sebring Assocs./The Excelsior II, ____ U.S. ____, 127 S. Ct. 310, 166 L. Ed. 2d 156 (2006).

Also, on April 29, 2004, plaintiff Young filed a complaint against the City of Hackensack and its police officers under Civil Action No. 04-CV-2011, alleging violation of his civil rights under the Constitutions of the United States and New Jersey, including a violation of the Fourth Amendment, based on assertions of false arrest and false imprisonment. On August 11, 2005, the District Court granted the defendants' motion for summary judgment, determining in part that "the uncontested evidence supports defendants' claim that the document is a genuine arrest warrant and that it provided probable cause for plaintiff's arrest. Therefore, summary judgment is granted in favor of defendants as to plaintiff's Fourth Amendment claim." Young v. City of Hackensack, 2 005 W.L. 1924327 (D.N.J. 2005). On April 28, 2006, the Third Circuit of Appeals affirmed. Young v. City of Hackensack, 178 Fed. Appx. 169 (3d Cir. 2006).

On April 23, 2007, plaintiffs filed the present complaint. Because the complaint alleged violations of plaintiffs' Fourth Amendment rights under the Federal Constitution, defendant removed the matter to the District Court. On defendant's motion to dismiss for failure to state a claim upon which relief could be granted, the District Court dismissed the Federal claims, noting that plaintiffs' claims of a violation of the Fourth Amendment had already been rejected by the court and affirmed by the Court of Appeals. Thus, the court dismissed the Fourth Amendment claims, together with any other constitutional claims asserted against any non-state actors, again declining to exercise supplemental jurisdiction over State law claims, and remanding the matter sua sponte to the Superior Court. In the interim, on June 12, 2007, plaintiffs filed an amended complaint, increasing their demand for damages from $167,394 to $10,000,000.

On or about July 10, 2007, in lieu of filing an answer, defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted, relying in part on the decisions and orders of the Federal Courts, as well as copies of the arrest reports of the Hackensack Police Department. In the alternative, defendant sought to change venue of the matter from Essex County to Bergen County. Plaintiffs not only filed opposition to defendant's motion, but also cross-moved to enter default against defendant for failure to file an answer to the complaint.

On August 24, 2007, five days prior to the return date of defendant's motion, plaintiffs sent the trial court a written request for an adjournment, seeking to retain counsel, stating in pertinent part: "We are even out-of-town at this time . . . and could not possibly appear on August 29th. We would like an opportunity for our case to be fully heard and our Constitutional Rights exercised." The letter also stated: "We spoke to an attorney yesterday who 'seemed' to may have taken an interest in the case and would like to schedule a consultation once we are back in town."

On August 29, 2007, the trial court proceeded with defendant's motion to dismiss the complaint, having satisfied itself that plaintiffs had been telephonically informed by the court's staff that their request for an adjournment had been denied. The court dismissed Counts One, Three, Five, and Seven, determining that the claims were time barred, pursuant to N.J.S.A. 2A:14-2 and -3. In addition, the court also determined that Count One of the complaint, alleging a violation of defendants' Fourth Amendment rights, was barred by the principle of res judicata, having previously been determined in the Federal Court action; and the Fifth Count, alleging defamation, failed to allege the essential elements of a cause of action, that is, that defendant had made a false, defamatory statement of fact. Counts One, Three, Five, and Seven were dismissed with prejudice.

The court dismissed Count Two, determining that permitting the police to proceed to plaintiffs' apartment does not constitute a breach of the covenant of quiet enjoyment, because plaintiffs were not evicted by someone holding a superior title. The court dismissed the Fourth Count, alleging trespass, because the complaint did not allege that defendant or its agents had entered plaintiffs' apartment, nor that the concierge was acting as an agent of the police officers by permitting them to proceed to plaintiffs' apartment, pursuant to a valid warrant. The court dismissed Counts Two and Four without prejudice. Lastly, the court dismissed Counts Six and Seven, determining that the allegations asserted only claims for damages, not causes of action on which relief could be granted.

On appeal, plaintiffs argue that: 1) defendant violated the Fourth Amendment; 2) defendant failed to perform "their job" in protecting plaintiffs; 3) defendant violated the covenant of quiet enjoyment; 4) defendant violated plaintiffs' rights to privacy and committed criminal trespass; 5) defendant and its agents made statements concerning plaintiffs that were defamatory and caused plaintiffs a loss of quality of life; 6) defendant was discriminatory in "allow[ing] this incident to happen because they are African American"; and 7) the trial judge failed to respond to their request for an adjournment of defendant's motion.

On a Rule 4:6-2(e) motion seeking the dismissal of a complaint for failure to state a claim, the court applies an indulgent standard. "[T]he plaintiff is entitled to a liberal interpretation of [the] contents [of the complaint] and to the benefits of all its allegations and the most favorable inferences which may be reasonably drawn" therefrom. Burg v. State, 147 N.J. Super. 316, 319 (App. Div.) (quoting Rappaport v. Nichols, 31 N.J. 188, 193 (1959)), certif. denied, 75 N.J. 11 (1977). While the "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (citing Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)), the reviewing court must "'search[] the complaint in depth and with liberality'" to determine whether the foundation for a cause of action exists "'even [in] an obscure statement of claim.'" Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).

"We must view the allegations with great liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). Accordingly, "the test for determining the adequacy of a pleading [is] whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown, supra, 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). In light of the standard of review, we treat plaintiffs' version of the facts as set forth in their complaint as uncontradicted and accord it all legitimate inferences. "We pass no judgment on the truth of the facts alleged; we accept them as fact only for the purpose of reviewing the motion to dismiss." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005).

Under the rule governing motions seeking dismissal of a complaint for failure to state a claim upon which relief could be granted, if on the motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and parties shall be given reasonable opportunity to present all material pertinent to such a motion." R. 4:6-2. A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

Plaintiffs argue that the trial court erred in refusing to grant their request for an adjournment of the motion to dismiss. We disagree.

"'The granting of trial adjournments rests within the sound discretion of the trial court. Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error.'" State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.) (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)), certif. denied, 58 N.J. 335 (1971).

Ordinarily, we would agree with plaintiffs that a trial court should grant an adjournment for a reasonable period of time to allow a pro se party to retain counsel, particularly where the adversary does not object. However, because we agree with the trial court's finding that the claims are time barred or fail to state a cause of action upon which relief could be granted as a matter of law, we find any error in denying the request for adjournment harmless. R. 2:10-2 ("[A]n error or omission shall be disregarded by the Appellate Court unless it is of such nature as to have been clearly capable of producing an unjust result . . . .").

We have considered plaintiffs' remaining arguments in light of the record and applicable law. We are satisfied that none of the arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Koprowski in his oral decision of August 29, 2007. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

Plaintiffs contend that the police officers' entry into their apartment was unlawful because they were not acting under a valid warrant for arrest of plaintiff Young. We disagree. This issue was presented to and decided by the Federal Courts in the prior Federal actions, therefore the doctrine of collateral estoppel applies. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006). Accordingly, plaintiffs are bound by that determination and may not assert a contrary position here.

Plaintiffs' claims for damages based on violations of their civil or constitutional rights are governed by the two-year statute of limitations, N.J.S.A. 2A:14-2, and their claims for defamation are subject to the one-year statute of limitations contained in N.J.S.A. 2A:14-3. Generally, the filing of an action in Federal Court within the statute of limitations will toll the limitations period during the pendency of that proceeding, "so that, if the action is dismissed without an adjudication on the merits, the plaintiff can, subject to equitable considerations, pursue substantially the same claim in another forum." Staub v. Eastman Kodak Co., 320 N.J. Super. 34, 54 (App. Div. 1999). However, that principle is not applicable to this matter. Plaintiffs' cause of action accrued on May 3, 2002. Plaintiffs' cause of action for defamation was barred by the appropriate statute of limitations one year later. Plaintiffs filed their first Federal action on April 29, 2004, five days short of the running of the two-year statute of limitations. The Federal action was dismissed by the District Court on March 17, 2005, affirmed by the Court of Appeals on February 13, 2006, and certiorari denied by the Supreme Court on October 2, 2006. Accordingly, for the doctrine to have applied as to plaintiffs' remaining causes of action, plaintiffs would have had to file their state court action before October 7, 2006. However, they did not.

Affirmed.

The first two actions filed in the United States District Court for the District of New Jersey were dismissed prior to the filing of the present complaint. These prior two actions will be discussed in more detail infra.

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A-0777-07T1

July 25, 2008