MICHAEL TAFFARO v. COLONIAL BAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1997-10T3

MICHAEL TAFFARO,

Plaintiff-Appellant,

v.

COLONIAL BAR and SCOTT

J. BARTONE,

Defendants-Respondents.

___________________________________________

December 23, 2011

Argued November 1, 2011 - Decided

Before Judges Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-20332-10.

Robert Pentangelo argued the cause for appellant (Michael Taffaro, on the pro se brief).

Thomas W. Izzard argued the cause for respondents (Fierro, Fierro & Izzard, P.C., attorneys; Mr. Izzard, on the brief).

PER CURIAM

Plaintiff Michael Taffaro appeals from the October 12, 2010 order dismissing his Special Civil Part complaint against defendants Scott Bartone and Colonial Bar based on the statute of limitations. Having reviewed the record and the arguments on appeal, we affirm.

We derive the following facts from the record on appeal. For many years plaintiff was involved in a family dispute with his siblings, Vincent and Susan Taffaro. On July 13, 2003, in the Colonial Bar, where Bartone worked as a bartender, plaintiff and Vincent Taffaro had a disagreement, which led to the brothers filing criminal charges against each other. At the January 23, 2004 municipal court trial concerning those charges, Bartone appeared as a witness and testified that he had not seen the brothers fighting the night of the disagreement. Plaintiff was convicted of harassment; Vincent Taffaro was acquitted of the charges against him.

On January 22, 2010, plaintiff filed a one-count pro se complaint in the Special Civil Part, alleging that Bartone, during his testimony on January 23, 2004, had "committed multiple counts of felony perjury," causing plaintiff to be "wrongfully convicted" and "subsequently sued civilly." The complaint alleged that Bartone's actions were "wanton and malicious as he intentionally and purposely inflicted emotional stress upon plaintiff" causing him to suffer "mental and emotional torment" and "defamation." Plaintiff sought $15,000 as compensatory and punitive damages.

On June 2, 2010, plaintiff voluntarily dismissed his complaint without prejudice as he was not ready to proceed on the scheduled trial date. On June 30, 2010, plaintiff filed the instant two-count complaint, which in its first count repeated the allegations of the original complaint against Bartone. In the second count plaintiff added the Colonial Bar as a defendant and alleged, "I am suing the Colonial Bar and Scott Bartone for 'conspiracy to commit economic interference' and for violations of the 'Dram Shop Act under N.J.S.A. 2A:22A-1 et seq.' At all times herein Scott Bartone was an agent and employee of the Colonial Bar." The newly-filed complaint contained no additional factual allegations.

On September 27, 2010, defendants filed a motion to dismiss the complaint based on the statute of limitations. When plaintiff failed to file any opposing papers, the trial judge issued an order granting defendants' motion. Plaintiff filed a motion for reconsideration, arguing that no opposition had been filed because plaintiff's counsel believed he could respond to the motion on the return date. After oral argument, the trial judge denied the motion because plaintiff had not addressed the merits of defendants' motion to dismiss. This appeal followed.

Shortly after the appeal was filed, the trial judge, pursuant to Rule 2:5-1,1 issued a supplementary opinion. Pointing out that no civil remedy exists for "felony perjury," the judge reasoned that plaintiff's complaint could best be characterized as a civil complaint for defamation, which has a one-year statute of limitations. N.J.S.A. 2A:14-3. Thus, he held that the complaint should be dismissed because it was time-barred. Further, the trial judge held that dismissal was warranted because the complaint contained insufficient factual allegations to support plaintiff's claims.

On appeal, plaintiff raises the following contentions:

POINT I - IT WAS IMPROPER FOR [THE TRIAL JUDGE] TO FAIL TO GIVE A REASON TO PLAINTIFF AND HIS COUNSEL FOR REVERSING HIS DECISION OF APRIL 30, 2010.

POINT II - IT WAS IMPROPER FOR [THE TRIAL JUDGE] TO GO ON THE RECORD WITHOUT EVEN NOTIFYING PLAINTIFF OR HIS COUNSEL AND PRESENT HIS SUPPLEMENTARY FINDINGS OF FACT AND CONCLUSIONS OF LAW MORE THAN 2 MONTHS AFTER PLAINTIFF FILED HIS MOTION OF APPEAL.

POINT III - BASED ON THE DRAM SHOP ACT, THE STATUTE OF LIMITATIONS IS SIX YEARS AND THE PLAINTIFF FILED HIS COMPLAINT WITHIN THE TIME FRAME.

We start with the basic principle that "[s]tatutes of limitations are essentially equitable in nature, promoting the timely and efficient litigation of claims." Montells v. Haynes, 133 N.J. 282, 292 (1993) (citing Ochs v. Fed. Ins. Co., 90 N.J. 108 (1982)). As our Supreme Court has stated:

The purposes of statutes of limitations, oft-repeated by this Court, are two-fold: (1) to stimulate litigants to pursue a right of action within a reasonable time so that the opposing party may have a fair opportunity to defend, thus preventing the litigation of stale claims, and (2) to penalize dilatoriness and serve as a measure of repose.

[Gantes v. Kason Corp., 145 N.J. 478, 486 (1996)(internal quotations and citations omitted).]

The period of limitation depends on the nature of the injury asserted. The statute of limitations in New Jersey for defamation suits is one year. N.J.S.A. 2A:14-3. This statute reflects an "express legislative policy in favor of a short statute of limitations period for defamation." Churchill v. State, 378 N.J. Super. 471, 479 (App. Div. 2005). Here, the alleged defamation occurred on January 23, 2004, when Bartone testified at the plaintiff's trial. As plaintiff did not file his action until 2010, his defamation claim is clearly time-barred by the one-year statute of limitations. N.J.S.A. 2A:14-3.

N.J.S.A. 2A:14-2 sets forth a statute of limitations of two years for personal injury complaints. "Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued." Ibid. Further, no matter what the underlying cause of action, if the gravamen of the complaint is harm to a person, as it is here, the two-year statute of limitations applies. Montells, supra, 133 N.J. at 292.

In examining plaintiff's pro se complaint, we must construe it "liberally . . . in the interest of justice." R. 4:5-7. However, interpreting plaintiff's reference to an "intentional infliction of emotional stress," resulting in "mental and emotional torment" to adequately state a cause of action for harm to a person, we still find that the complaint is time-barred.

A cause of action accrues when one person's actions cause damages to another person. Holmin v. TRW, Inc., 330 N.J. Super. 30, 35 (App. Div. 2000). As plaintiff claimed Bartone's "felony perjury" caused him to be convicted at the municipal court trial, the cause of action accrued in January 2004. Hence, plaintiff's complaint filed in 2010 is barred by the two-year statute of limitations. N.J.S.A. 2A:14-2.

Additionally, for actions not involving defamation or personal injury, the statute contains a six-year limit. N.J.S.A. 2A:14-1. In the second count of the complaint, plaintiff alleged that the Colonial Bar and Bartone, acting as Colonial's agent, engaged in a "conspiracy to commit economic interference," and "violations of the Dram Shop Act,"2 without providing a factual basis for the new claim. Nonetheless, again liberally construing the pleading, we discern that, by referencing the Dram Shop Act, plaintiff was alleging that Bartone's service of alcohol in the Colonial Bar resulted in injury to plaintiff, which is controlled by the two-year statute of limitations. N.J.S.A. 2A:14-2. However, these claims are time-barred under the six-year statute of limitations because even if Bartone had served plaintiff or his brother alcohol, he did so in July 2003, over six years before plaintiff filed his first complaint and nearly seven years before he filed his second complaint. N.J.S.A. 2A:14-1.

In order to avoid unduly harsh consequences of the statutory time limits, equitable principles may be applied, when appropriate, to determine if the statute of limitations must yield to other considerations. Price v. N.J. Mfrs. Ins. Co., 182 N.J. 519, 524 (2005); see also Roa v. LAFE, 200 N.J. 555, 566 (2010). Plaintiff, however, has presented no compelling reason for allowing him to litigate stale claims, or any coherent explanation for failing to file the complaint in the intervening years that would equitably toll the statute of limitations. Therefore, we are satisfied that, as plaintiff s claims for damages are barred by the applicable statutes of limitations, the trial judge correctly granted summary judgment to defendants and dismissed the complaint.

Plaintiff's contentions in Point I and II are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A

1 Rule 2:5-1(b) provides that, after being served with a notice of appeal, a trial judge may "file and mail to the parties an amplification of a prior statement, opinion or memorandum made either in writing or orally and recorded pursuant to R. 1:2-2."

2 The Dram Shop Act, N.J.S.A. 2A:22A-1 to -7, creates "the exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server." N.J.S.A. 2A:22A-4. We note that, contrary to plaintiff's reference to a six-year limit, the Dram Shop Act contains no separate statute of limitations.