LEON SINGLETARY v. GARRY MCCARTHY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LEON SINGLETARY,

Plaintiff-Appellant,

v.

GARRY MCCARTHY,

Defendant-Respondent.

November 21, 2014

Submitted November 13, 2014 Decided

Before Judges Maven and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6092-10.

Leon Singletary, appellant pro se.

Anna P. Pereira, Corporation Counsel, City of Newark, attorney for respondent (Steven F. Olivo, Assistant Corporation Counsel, on the brief).

PER CURIAM

Plaintiff Leon Singletary appeals from a June 21, 2013 Law Division order denying his motion to vacate the October 21, 2011 dismissal of his complaint. We affirm.

We derive the following facts and procedural history from the limited record on appeal. Singletary, a State inmate, filed suit on July 26, 2010, against defendant Garry McCarthy in his capacity as Director of the Newark Police Department, seeking records related to Singletary's April 1, 1982 arrest. In his one-count complaint filed in July 2010, Singletary alleged that on April 1, 1982, he was arrested along with co-defendants Charles Swain and Wyatt James Davis on charges that included weapons possession and conspiracy to commit robbery. The police report of the incident indicates that a sawed-off shotgun loaded with live ammunition was found tied around Singletary's waist. The following day, the three men were also charged with a murder that occurred in Orange, New Jersey on March 24, 1982.

Although all three men were originally charged in both incidents, Singletary alleges that he learned that Davis was released from police custody within a week of their arrest. He avers that "it became obvious to [me] that there was some kind of arrangement made between the police and Mr. Davis," and that he "had good cause to believe that Mr. Davis was acting in some capacity as an agent/informant for the Newark Police Department." Singletary alleged that the Newark Police Department "intentionally withheld discovery related to these circumstances" in violation of his constitutional rights and Rule 3:13-3. Singletary did not request monetary damages. Rather, he sought the production of all police records related to Davis involving "the events that took place between April 1 and his release from police custody."

Defendant moved pursuant to Rule 4:6-2(e) to dismiss Singletary's complaint in lieu of filing an answer. Defendant argued that Singletary's complaint, filed more than twenty years after the events complained of, was barred by the statute of limitations, N.J.S.A. 2A:14-2. Singletary filed late opposition to the motion. Dismissal was granted by Judge Torkwase Y. Sekou on October 21, 2011.1

On November 29, 2012, Singletary moved to reinstate the complaint, citing excusable neglect under Rule 4:50. On March 22, 2013, Judge Michael E. Hubner denied the motion without prejudice. The judge's order noted

[p]laintiff's [c]omplaint was dismissed on October 21, 2011 after [d]efendant filed a motion to dismiss in lieu of an [a]nswer pursuant to [Rule] 4:6-2(e). The [p]laintiff now seeks to vacate the dismissal based on excusable neglect. The [c]ourt accepts that [p]laintiff had difficulty in meeting the time constraints when filing his opposition, but this [c]ourt cannot vacate the dismissal on the basis of excusable neglect alone. Plaintiff must [] also show that had his opposition been accepted, [d]efendant's motion to dismiss would have been denied.

On May 20, 2013, Singletary again filed a "motion to reinstate [the] complaint pursuant to [Rule] 4:50" in which he "[sought] to show that his complaint against [] defendant . . . has substantial merit based on both New Jersey State Laws and the United States Constitution." He contended that discovery had been unlawfully withheld in his criminal case, and that he had endeavored over a thirty-year period to "ascertain only the question of whether . . . Mr. Davis was . . . acting as an informant of the police. What statements and/or agreements, rewards or leniency he may have received surrounding the arrests made on April 1, 1982." Judge Hubner denied the motion on June 13, 2013, reasoning

[p]laintiff has renewed his motion to vacate the dismissal of his [c]omplaint. Plaintiff's [c]omplaint was dismissed on [10/21/2011] by Judge Sekou. A motion to vacate a dismissal is controlled by Rule 4:50-1. Except for motions for relief from default judgments which are liberally viewed, a motion for relief from judgment or other dispositive motion based on any one of the six specified grounds should be granted sparingly. See US Bank [Nat'l] Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). In the present case, [p]laintiff has not shown why this [c]ourt should vacate Judge Sekou's prior order. However, with regards to [p]laintiff's assertions of ongoing issues regarding access to documents, [p]laintiff can attempt to file another complaint, but subject to any applicable defenses.

This appeal followed.

Rule 4:50-1 provides the grounds upon which a judgment may be vacated

[T]he court may relieve a party . . . from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

We review orders denying relief from judgment or order under an abuse of discretion standard.

The trial court's determination under [Rule4:50-1] warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion. The Court finds an abuse of discretion when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.

[US Bank Nat'l Ass'n v. Guillaume, 209 N.J.449, 467 (2012) (internal quotation marks and citations omitted).]

As an initial matter, we note that motions to vacate a judgment under subsections (a), (b), and (c) must be made within one year of entry of the judgment. R. 4:50-2. On November 29, 2012, Singletary filed his first motion to vacate the dismissal order, based on excusable neglect. Singletary's second motion, the denial of which he now appeals, essentially incorporated the merits of his claim into his excusable neglect argument and was not filed until May 20, 2013. Therefore, since Singletary's motions were filed more than a year after entry of the October 21, 2011 order, he may not seek relief on grounds of excusable neglect.

Singletary does not argue that any other grounds for relief under Rule 4:50-1 are applicable. Nor can we conclude that the motion judge's decision to deny relief on the merits was arbitrary or rested on an impermissible basis. Singletary's claim is predicated on the alleged improper withholding of discovery in his criminal case more than thirty years ago. Parenthetically, we note that such discovery is furnished by the prosecutor, not the local police department. R. 3:13-3. Singletary's discovery request may also implicate the informant's privilege, to the extent that it was or remains applicable. N.J.S.A. 2A:84A-28; N.J.R.E. 516. In any event, Judge Hubner's June 21, 2013 order did not foreclose Singletary from obtaining the records if he could demonstrate a valid ongoing need for them. Rather, in a reasonable exercise of discretion, the judge's order permitted Singletary to file a new complaint, which would continue to be subject to any applicable defenses.

Affirmed.

1 Because the record does not include the October 21, 2011 order, or the transcript or statement of reasons supporting it, we are unable to ascertain with any precision the basis for the dismissal beyond what was articulated in defendant's motion.