MARY M. KOSTECKI v. BOROUGH OF WHARTON POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARY M. KOSTECKI, f/k/a

MARY M. TADDEI,

Plaintiff-Appellant,

v.

BOROUGH OF WHARTON POLICE

DEPARTMENT, MORRIS COUNTY

PROSECUTOR'S OFFICE, MORRIS

COUNTY PROBATION DEPARTMENT,

SUPERIOR COURT OF NJ, COUNTY

OF MORRIS,

Defendants-Respondents.

________________________________________________________

October 14, 2016

Submitted September 27, 2016 Decided

Before Judges Fisher and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1062-14.

Mary M. Kostecki, appellant pro se.

Robert J. Greenbaum, attorney for respondent Borough of Wharton Police Department.

Christopher S. Porrino, Attorney General, attorney for respondents Morris County Prosecutor's Office, Morris County Probation Department, and Superior Court of New Jersey, County of Morris (Lisa A. Puglisi, Assistant Attorney General, of counsel; Ione K. Curva, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff, the mother of a minor child at the time of the event in question, filed this action against the Borough of Wharton Police Department, the Morris County Prosecutor's Office, the Morris County Probation Department, the Superior Court of New Jersey, and variously-described fictitious public entities and employees. Plaintiff alleged that as a result of the issuance and enforcement of a Family court order that she have no contact with her son, she was, on May 14, 2012, forcibly removed from her son's hospital bedside following emergency surgery from injuries he sustained from having been hit by a car. The complaint presents six claims based on the same operative facts: negligence; gross negligence; willful and wanton misconduct; intentional infliction of emotional distress; negligent infliction of emotional distress; and conspiracy.

All defendants moved for dismissal and, by way of oral opinions rendered on October 10, 2014, and April 10, 2015, Judge Robert J. Brennan dismissed the complaint as to all parties with prejudice.

Plaintiff appeals, arguing

I. THE TRIAL COURT FAILED TO CONSIDER PLAINTIFF'S COMPLETE COMPLAINT AND FAILED TO LIBERALLY CONSTRUE PLAINTIFF'S PLEADING TO RECOGNIZE A CAUSE OF ACTION.

II. JUDGE BRENNAN'S ORDERS DEPRIVE THE PLAINTIFF OF HER RIGHT TO CONDUCT DISCOVERY TO SUPPORT HER CLAIMS WHICH IS INCONSISTENT UNDER THE RULES.

III. JUDGE BRENNAN FAILED TO RECOGNIZE THE EXCEPTIONS TO IMMUNITY UNDER THE TORT CLAIMS ACT.

IV. JUDGE BRENNAN ERRED IN GRANTING IMMUNITY AFTER VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS.

V. JUDGE BRENNAN FAILED TO CONSIDER THAT UNDER THE LAW RESPONDENTS VIOLATED APPELLANT'S RIGHT TO PROCEDURAL DUE PROCESS.

VI. APPEAL TO THE JUVENILE COURT WAS NOT THE APPROPRIATE REMEDY UNDER THE CIRCUMSTANCES.

VII. THE VENUE OF THIS MATTER IN THE MORRIS/SUSSEX VICINAGE IS A CONFLICT OF INTEREST.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Judge Brennan properly utilized the principles applicable to Rule 4:6-2(e) motions to dismiss. See Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989) (holding that the Rule requires an assumption of the truth of the allegations and entitles the pleader to all reasonable factual inferences); Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002) (recognizing that a court must search the pleading "in depth and with liberality to determine whether a cause of action can be gleaned even from an obscure statement"). The judge recognized there was nothing obscure or unclear about plaintiff's factual allegations. She asserted that the judge presiding in her son's juvenile matter had entered an order that prohibited her from having contact with her son, that the order was based on faulty or incorrect information provided by the probation department or the prosecutor's office, and that the police department enforced the order by removing her from her son's bedside. The judge assumed these facts to be true and correctly recognized that the defense motions posed only legal questions as to whether defendants were immune from these claims.

Having closely examined the record, we conclude that Judge Brennan properly applied the immunity principles set forth in the Tort Claims Act, N.J.S.A. 59:1-1 to 14-4, to each allegation and each defendant. We affirm substantially for the reasons set forth in his thoughtful and comprehensive opinions.

We lastly observe that application of Rule 4:6-2(e) ordinarily permits the pleader the opportunity to file an amended pleading to resolve any ambiguities or uncertainties presented by the original pleading "if necessary." Printing Mart-Morristown, supra, 116 N.J. at 746; see also Lederman v. Prudential Life Ins. Co. of Am., Inc., 385 N.J. Super. 324, 349 (App. Div.), certif. denied, 188 N.J. 353 (2006); DiCristofaro v. Laurel Grove Mem. Park, 43 N.J. Super. 244, 252 (App. Div. 1957). Here, although plaintiff certainly argues the judge failed to view her complaint with liberality,1 she does not contend given an opportunity to amend that further pleading on her part would result in a description of a cause of action against any of these defendants that would not be barred by the immunity principles applied by Judge Brennan.

Affirmed.

1 We reject plaintiff's argument. Indeed, in keeping with our standard of review, which requires application of the same principles that bound the trial judge, Major v. Maguire, 224 N.J. 1, 26 (2016), we too can discern no fundament of a cause of action in plaintiff's complaint no matter how broadly interpreted through examination of all its allegations as illuminated by plaintiff's notice of tort claim.