GLENN B. SLATER v. CAPTAIN DAVID HARDIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GLENN B. SLATER,

Plaintiff-Appellant,

v.

CAPTAIN DAVID HARDIN, Individually

and as Captain of West Milford

Police Department, JOAN WAKS, ESQ.,

Individually, WAKS & MECKY, a

corporation, JANET SCIORRA, WEST

MILFORD TOWNSHIP, CHIEF JAMES DYKSTRA,

of the West Milford Police Department,

and PASSAIC COUNTY PROSECUTORS OFFICE,

Defendants-Respondents.

____________________________________

March 11, 2014

Argued November 4, 2013 Decided

Before Judges Ashrafi, St. John and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8574-09.

Glenn B. Slater, appellant, argued the cause pro se.

Steven R. Srenaski argued the cause for respondents Captain David Hardin, Chief James Dykstra, and West Milford Township (Florio, Perrucci, Steinhardt & Fader, LLC, attorneys; Mr. Srenaski, of counsel and on the brief; Seth R. Tipton, on the brief).

PER CURIAM

Plaintiff Glenn B. Slater filed a civil complaint on February 6, 2009, alleging acts occurring on October 1, 2002. Judge Robert C. Wilson granted the summary judgment motion of defendant West Milford Township and defendants Captain David Hardin and Chief James Dykstra of the West Milford Police Department (Defendants).1 The judge ruled, among other things, that Slater's notice of claim and complaint were untimely under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3. Slater appeals. We affirm.

I.

The judge's May 8, 2012 opinion sets forth the facts, the procedural history of this case, and the numerous related lawsuits brought by or against Slater, as well as Slater's wide-ranging allegations against lawyers, judges, and the Passaic County Prosecutor's Office. We summarize only the portions pertinent to our decision.

In 1999, defendant Janet Sciorra, Slater's former girlfriend and the mother of their three children, obtained a final restraining order (FRO) against Slater. The Family Part then issued a series of amended FROs addressing a motel in which Sciorra and the children resided. Slater was operating the motel as a debtor in possession under a federal bankruptcy order, and Slater and Sciorra disputed who owned the motel. The amended FROs allowed Sciorra and the children to reside in the motel, authorized Sciorra to collect the rents as a form of child support, and restrained Slater from entry onto the motel premises.

On August 26, 2002, Judge George E. Sabbath issued another amended FRO. This August 2002 FRO continued the restraints, and provided:

[Sciorra] has until September 30, 2002 to institute an action, in the proper court, addressing her alleged proprietary interest in the motel, and to obtain an order permitting her to remain at the motel. If she fails to do so she must vacate the premises on October 1, 2002 and return possession to [Slater].

Sciorra did not file such an action by September 30, 2002.

On October 1, 2002, Slater telephoned Captain Hardin, cited the August 2002 order, and asked him to evict Sciorra and the children. Hardin declined to do so after going to the property with Slater. Hardin allegedly declined to eject Sciorra because Slater did not have an eviction order or judgment of ejectment, and because Sciorra had a restraining order against Slater.

Within days, Sciorra's attorney, defendant Joan Waks, Esq., filed a request for an order to show cause. On October 7, 2002, another judge issued an order denying the requested relief, but ruling that the restraints previously granted remained in effect, and that "Judge Sabbath's order only gives [Slater] the right to file an action of ejectment and does not automatically deprive [Sciorra] of possession." The next day, Hardin explained the order to Slater. Slater neither appealed the October 7, 2002 order nor filed an action for ejectment.

In a subsequent palimony action, the court found Sciorra to be half owner of the motel. A creditor filed a foreclosure action, and the motel was sold in a tax sale in 2007.

In a notice of claim dated March 12, 2007, Slater claimed that Hardin failed to enforce the amended FRO, that the Township improperly trained their officers, and that Dykstra investigated the incident. Rather than listing the date of the occurrence, Slater wrote "continuous tort."

On February 6, 2009, Slater filed the complaint in this case, making the following allegations: Hardin refused to enforce the August 2002 order, refused to arrest Sciorra and the children as trespassers, and instead followed a "denied" court order due to intimidation by Waks; Chief Dykstra failed to stop Hardin's "criminal actions;" and the Township failed to properly train their officers.2 Slater alleges he was damaged because Hardin's refusal to evict Sciorra allowed her to continue to live in the motel and to collect the rents.

The judge granted defendants' motion to dismiss Slater's complaint because Slater gave inadequate discovery responses and failed to appear at a mandatory settlement conference. Slater moved for reinstatement, which was denied with the notation: "statute of limitations has run." He unsuccessfully moved for reconsideration, claiming a "continuous tort." He appealed.

We reversed the dismissal as unjustified by Slater's discovery errors and failure to appear. Slater v. Hardin, A-5018-09 (App. Div. July 27, 2011) (slip op. at 7-11). We also found it unfair to uphold the dismissal based on the statute of limitations when it had not been raised in a defense motion. Id. at 6-9. However, we added:

we express no opinion about the merit of plaintiff's "continuous tort" theory regarding the statute of limitations defense. Plaintiff's complaint alleged at its core an event that occurred in 2002, more than six years before the complaint was filed. Defendants are free to file an appropriate motion in the Law Division.

[Id. at 7.]

After our remand and following discovery, Defendants moved for summary judgment on multiple grounds. Defendants certified on March 28, 2012, that they caused a copy of the motion to be served upon Slater via hand delivery to his home address. Slater did not file a response to the motion, which was set for argument on Friday, April 27, 2012.

On Wednesday, April 25, 2012, Slater sent a letter to the judge asserting that he had returned "this past Monday" from caring for his ill father in Florida, and upon his return had found the motion in a house on the property. Slater asked for "a minimum six-week extension to answer the complex motion" and file a cross-motion. The judge received the letter on April 26.

At oral argument on April 27, Slater reiterated those assertions to the judge. When the judge asked if he was requesting a six-week extension, Slater replied that he would give the judge an oral summary of the case. Slater proceeded to give an argument longer than the oral argument of Defendants' counsel. Slater went into largely irrelevant facts in great detail. Slater then stated: "If I were to respond to this [motion], Judge, you give me 60 days, the pile you're going to get back is going to be five times as thick. . . . If you want responses, I'll respond to it." The judge stated he would issue a written decision.

The judge granted summary judgment by written opinion and order on May 8, 2012. The judge explained that Slater's action was barred by his failure to file his notice of claim and his complaint within the time periods required by the Act, and by res judicata, collateral estoppel, and immunity. Slater appeals.

II.

On appeal, Slater argues that he was not properly served with Defendant's motion for summary judgment. He did not make that argument before summary judgment was granted. Accordingly, he must show plain error. R. 2:10-2.

Civil motions must be served "upon parties appearing pro se," Rule 1:5-1(a), "as provided in R. 4:4-4," or by both ordinary mail and registered or certified mail. R. 1:5-2. Here, Defendants' certificate of service states that they elected to use "hand delivery" rather than the mails. Under Rule 4:4-4(a)(1), hand delivery is effected

by delivering to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf[.]

Thus, Rule 4:4-4(a)(1) requires hand delivery to a person, not merely to a place. See Peoples Trust Co. v. Kozuck, 98 N.J. Super. 235, 238-40 (Law Div. 1967), aff d o.b., 103 N.J. Super. 151 (App. Div.), certif. denied, 53 N.J. 78 (1968). Therefore, hand-delivering the motion to Slater's house, rather than to Slater or a person described in Rule 4:4-4(a)(1), was not in strict compliance with that rule.

However, the doctrine of substantial compliance may apply "where a party files a pleading or other court document in a timely manner, but fails to make service in strict accordance with the governing court rule." E.g., Corcoran v. St. Peter's Med. Ctr., 339 N.J. Super. 337, 342-43 (App. Div. 2001) (applying the doctrine to a motion for trial de novo). The doctrine requires

"(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the [rules] involved; (3) a general compliance with the purpose of the [rules]; (4) a reasonable notice of petitioner's claim; [and] (5) a reasonable explanation why there was not a strict compliance with the [rules]."

[U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 473 (2012) (quoting Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 353 (2001). (citation omitted)).]

Similarly, "the constitutional requirement of due process does not mandate perfect service." Coryell, L.L.C. v. Curry, 391 N.J. Super. 72, 81 (App. Div. 2006). Due process requires "'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" O'Connor v. Altus, 67 N.J. 106, 126 (1975) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950)). Even assuming this requirement applies to motions as well as original pleadings, Defendants' hand delivery to Slater's address was reasonably calculated to apprise Slater of the pendency of the motion and to afford him an opportunity to respond.

Furthermore, there was substantial compliance. By attempting hand delivery, Defendants took steps to comply with Rules 1:5-2 and 4:4-4(a)(1). Defendants' explanation that Rule 1:6-3(c), which states that "service of motion papers is complete only upon receipt at . . . the address of a pro se party," permitted leaving the hand delivery at Slater's address, was reasonable if mistaken.3 Leaving the motion at Slater's home address constituted general compliance with the purpose of the rules, and gave reasonable notice of the motion. Even according to Slater, leaving the motion achieved the purpose of the rules because Slater received the motion upon his return from Florida. Slater thus received the motion as soon as he would have received it had Defendants instead chosen to use mail service to his home address, or to make repetitive attempts at hand delivery at that address. Thus, Defendants' choice caused no prejudice. Under these circumstances, Slater cannot show that Defendants' manner of service was "clearly capable of producing an unjust result." R. 2:10-2.

We note that Slater's appellate brief references, and his appendix includes, a motion and certification he filed in the Law Division around August 24, 2012, long after he filed his appeal from the May 8, 2012 order.4 "Our scope of review, however, is limited to whether the trial court's decision is supported by the record as it existed at the time of" its decision. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). "Appellants, as a general rule, cannot undermine the ruling of the trial court by submitting additional evidence after" its decision. Id. at 291.5 Accordingly, we do not consider Slater's certification. Id. at 278.6

III.

Slater complains that the judge should have given him an extension to answer the summary judgment motion. Slater's April 25 letter belatedly requested at least a six-week extension. However, when the judge on April 27 asked if Slater wanted a six-week extension, Slater chose instead to give an oral summary of the case. After making a lengthy argument, Slater said he would respond if the judge wanted responses, but would need sixty days to do so. Thus, Slater did not clearly request an extension on April 27, even when directly asked by the judge.

Even assuming Slater requested an extension, which the judge denied, there was no abuse of discretion. A forty-two or sixty-day extension dwarfs the eighteen days permitted for a summary judgment response. R. 4:46-1. An extension could also have forced the postponement of the upcoming trial.

"A motion for an adjournment implicates a trial court's authority to control its own calendar and is reviewed under a deferential standard." State v. Miller, 216 N.J. 40, 65 (2013). "New Jersey long has embraced the notion that '[a] motion for an adjournment is addressed to the discretion of the court, and its denial will not lead to reversal unless it appears from the record that the defendant suffered manifest wrong or injury.'" State v. Hayes, 205 N.J. 522, 537 (2011) (citations omitted). "It is peculiarly within the sound discretion of the trial court" to deny an adjournment of trial, "and an appellate court should not interfere unless it appears an injustice has been done." Allegro v. Afton Vill. Corp., 9 N.J. 156, 161 (1952); see R. 1:1-2 (a court may relax a rule's requirements "if adherence to it would result in an injustice"); see also Flett Assocs. v. S.D. Catalano, 361 N.J. Super. 127, 133 (App. Div. 2003) (applying the same standard to extension of time under Rule 1:3-4(a)). We must hew to that standard of review.

Here, we do not believe an injustice was committed. The judge found Slater "has failed to participate in the litigation in good faith." Despite Slater's failure to file a timely response, the judge allowed Slater to argue at length. Slater's lengthy argument showed his intent to dwell predominately on irrelevant details of his personal and business relationship with Sciorra, despite the judge's repeated suggestions to focus on the issues raised by the summary judgment motion. Slater's statement that he required inordinately long periods of time to prepare a response, which would be five times the volume of the Defendant's summary judgment papers, promised more of the same. Slater's appellate briefing and appendices have largely fulfilled that promise. Finally, as set forth below, his appellate briefing has failed to establish any basis to question the judge's rulings on the untimeliness of his notice of claim and his complaint. Therefore, the absence of an extension was not "clearly capable of producing an unjust result." R. 2:10-2.

IV.

We now review the judge's grant of summary judgment dismissing Slater's complaint as untimely. We must apply the same summary judgment standard that governed the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995).

In granting summary judgment, the judge ruled that Slater's claims were barred because his March 2007 notice of claim was untimely under the Tort Claims Act. The Act governs the ability of a claimant such as Slater to file a claim of damage to property against a public entity such as the Township, or public employees such as Hardin or Dykstra.

The Act requires a claimant to file a notice of his claim "not later than the 90th day after accrual of the cause of action." N.J.S.A. 59:8-8. If a claimant shows "extraordinary circumstances," and the court finds that "the public entity or the public employee has not been substantially prejudiced thereby," a court in its discretion may allow a claimant to file "at any time within one year after the accrual of his claim." N.J.S.A. 59:8-9. "The court is without jurisdiction to permit filing of a late notice of claim more than one year after the accrual of the claimant's cause of action." Williams v. Maccarelli, 266 N.J. Super. 676, 679 (App. Div. 1993). If a claimant fails to file his notice of claim within ninety days, or to file it within one year with court permission, he is "forever barred from recovering against a public entity or public employee." N.J.S.A. 59:8-8.

Furthermore, the Act contains a statute of limitations. "The claimant shall be forever barred from recovering against a public entity or public employee if . . . [t]wo years have elapsed since the accrual of the claim[.]" N.J.S.A. 59:8-8. "[I]n no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim." N.J.S.A. 59:8-9.

Under the Act, we first look to the date on which the claim accrued in accordance with existing law. Beauchamp v. Amedio, 164 N.J. 111, 116 & n.1, 118 (2000) (citing N.J.S.A. 59:8-1). "Ordinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs." Id. at 116. Alternatively, under the discovery rule, a claim accrues when "'the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.'" McDade v. Siazon, 208 N.J. 463, 478-79 (2011) (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)).

Under either the ordinary standard or the discovery rule, Slater's claim accrued in October 2002. On October 1, 2002, Hardin refused to evict Sciorra from the motel, allegedly in violation of the August 2002 order. Slater was aware of Hardin's actions on October 1, 2002, because Slater went with Hardin to the motel. At the summary judgment argument, Slater conceded that when Hardin refused to evict Sciorra and the children, Slater "realized that there's something wrong [and] . . . corrupt, they're not doing what the order says." He claimed to have requested an internal affairs investigation by the police.7

Slater's alleged cause of action thus accrued in October 2002 because he knew "that a public entity was responsible" for not evicting Sciorra, which Slater contends injured him by leaving her in possession of the motel and collecting the rents. Beauchamp, supra, 164 N.J. at 119; see, e.g., Bayer v. Twp. of Union, 414 N.J. Super. 238, 259 (App. Div. 2010) (noting that "a claim for false arrest accrues on the date of the arrest"). "Although the full extent of an injury or loss may not be known, N.J.S.A. 59:8-4, the notice is triggered by the occurrence of injury and must be filed in order for a complaint to be lodged against the public entity." Beauchamp, supra, 164 N.J. at 121.

Slater argues that Hardin's action was a continuous tort. Under the continuing tort doctrine, where a party commits a continuing nuisance, "the defendant is committing a new tort, including a new breach of duty, each day, triggering a new statute of limitations." Russo Farms v. Vineland Bd. of Educ., 144 N.J. 84, 99 (1996).8

Here, Slater claims that Hardin failed to follow the August 2002 order by not evicting Sciorra on October 1, 2002. However, the October 7, 2002 order ruled that the August 2002 order "only gives [Slater] the right to file an action of ejectment and does not automatically deprive [Sciorra] of possession." The October 7, 2002 order made clear that Hardin could not evict Sciorra until Slater obtained an order of ejectment, which Slater never did.

Thus, even assuming that Hardin's earlier refusal to evict Sciorra on October 1 was a continuing tort, that tort ended when the October 7, 2002 order precluded eviction. Russo, supra, 144 N.J. at 114.

Slater disputes the validity of the October 7, 2002 order, which he never appealed. However, that dispute is irrelevant to Slater's cause of action against Hardin because Hardin was required to follow that order. Slater claims he continued to suffer injury from the October 1 refusal to evict. However, "'a wrongful act with consequential continuing damages is not a continuing tort,' and does not lengthen the statute of limitations." Ibid. (citation omitted); see, e.g., Kolczycki v. City of East Orange, 317 N.J. Super. 505, 518-20 (App. Div. 1999) (alleged harassment by police is not a continuing tort, even if it has continuing consequences).

Slater admittedly learned of the October 7, 2002 order when Hardin explained it to him on October 8, 2002. Therefore, Slater was required to file his notice of claim within ninety days of October 8, 2002 at the very latest. Slater, however, failed to file his notice of claim until March 12, 2007. Thus, he filed his notice of claim beyond the ninety days, and indeed well beyond the Act's one-year limit even if he had requested an extension. Accordingly, his late notice of claim was "a nullity." Rogers v. Cape May Cnty. Office of Pub. Defender, 208 N.J. 414, 427 (2011). That in itself bars his claim. N.J.S.A. 59:8-8(a); McDade, supra, 208 N.J. at 469.

Furthermore, the Act precluded Slater from filing "any suit against a public entity or a public employee . . . later than two years from the time of the accrual of the claim." N.J.S.A. 59:8-9. After two years elapsed after the accrual of the claim, Slater was "forever barred from recovering against a public entity or public employee." N.J.S.A. 59:8-8(b); e.g., Dunn v. Borough of Mountainside, 301 N.J. Super. 262, 273-74 (App. Div. 1997) (barring claims against police brought more than two years after accrual), certif. denied, 153 N.J. 402 (1998). Although Slater's claim accrued in October 2002, he failed to file suit until February 2009.

Slater showed his grasp of the statute of limitations by invoking it against Sciorra in the palimony action in May 2003. N.J.S.A. 59:8-8(b). He also demonstrated his knowledge of the Act by filing a notice of claim against Defendants in 2007. In any event, Slater's failure to file his notice of claim and his complaint within the time periods set forth in N.J.S.A. 59:8-8 bars his claims against Defendants. See S.P. v. Collier High Sch., 319 N.J. Super. 452, 465 (App. Div. 1999) ("'ignorance of the law or failure to seek legal advice will not excuse failure to meet the filing deadline' under N.J.S.A. 59:8-8") (citation omitted).

We therefore affirm the judge's grant of summary judgment on timeliness grounds. We thus have no need to address the remaining grounds on which the judge also granted summary judgment.

Affirmed.

1 It is unclear whether Slater ever served the other defendants, who have not answered the complaint, and who allegedly have been dismissed.

2 In his interrogatory answers, Slater stated the Township's failure to train was evidenced by Hardin's refusal to enforce the August 2002 order. As Hardin's refusal is the basis of all of Slater's claims against Defendants, our references to Slater's claims against Hardin encompass the claims against Dykstra and the Township.

3 See Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 1:6-3 (2014) (stating that Rule 1:6-3(c) "condition[s] completeness of service of motions papers on the receipt by the adverse party"). Defendants also reference service by commercial courier, but their certificate of service did not state that they used a commercial courier.

4 Slater's motion sought to vacate the summary judgment unless Defendants supplied a receipt signing for the hand delivery. The judge denied the motion.

5 Slater did not file a motion to supplement the record. See R. 2:5-4, 2:5-5. Absent a successful motion, his "unilateral inclusion of [documents postdating the appealed order] in the appendix is completely improper." State v. Phillips, 176 N.J. Super. 495, 500 n.1 (App. Div. 1980).

6 In any event, Slater's certification would not alter our decision. Slater said that when he was in Florida, his children were checking his post office box - but mail service may not be "addressed to a post office box in lieu of a street address [unless] the sender cannot by diligent effort determine the addressee's street address." R. 1:5-2. Slater certified that by April 18, 2012, he learned from the clerk's office that a summary judgment had been filed and would be argued on April 27, 2012 - but Slater waited a week to write his letter to the judge.

7 Indeed, Slater repeatedly showed his knowledge of Defendants' alleged wrongful actions, by seeking to join the Township as a defendant in the palimony action in May 2003, and by citing Hardin's inaction when bringing a civil action against Hardin in May 2005, listing Hardin and Dykstra as witnesses in the palimony action in September 2005, seeking an order requiring Hardin to appear before the palimony judge in November 2006, and asking in January 2007 for an order in the foreclosure action "to expose the blatantly corrupt dealings" of Hardin.

8 Russo described the continuing tort doctrine as "an 'accrual' test that allows claims to the extent that they have accrued within the limitations period." Id. at 105. Slater argues that in a continuous tort, "the action accrues not on the first date of the claim but rather, on the date the conduct ceases." Pressler & Verniero, supra, comment 36.7 on R. 4:5-4. That issue is irrelevant given the facts here.