MORTON SCHNEIDER et al. v. TOWNSHIP OF DOVER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4312-05T14312-05T1

MORTON SCHNEIDER and

BARBARA SCHNEIDER, husband

and wife,

Plaintiffs-Appellants,

v.

TOWNSHIP OF DOVER,

Defendant-Respondent,

and

OCEAN COUNTY,

Defendant.

_____________________________________________

 

Argued May 23, 2007 - Decided August 10, 2007

Before Judges Lefelt, Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County,

L-1177-04.

Peter W. Till argued the cause for appellants (Jeffrey M. Advokat, on the brief).

Michael J. Gilmore argued the cause for respondent (Gilmore & Monahan, attorneys; Mr. Gilmore, on the brief).

PER CURIAM

Plaintiffs Morton and Barbara Schneider, husband and wife, appeal from the March 17, 2006 order granting defendant Township of Dover (Township) reconsideration and vacating the court's January 31, 2006 order denying summary judgment and, in turn, granting summary judgment dismissing the remaining counts in plaintiffs' complaint. We affirm.

The complaint arose out of an investigation conducted at plaintiffs' home by the Township police on April 22, 2003, after the burglar alarm was activated. Police arrived at the scene and initially observed no one present at the home. However, in looking for burglars, they peered through the windows and saw suspected CDS residue and narcotics paraphernalia. Plaintiffs' son was later observed and arrested for narcotics offenses. Plaintiff Morton Schneider arrived at the scene later and was arrested and charged with disorderly persons' offenses, possession of marijuana under fifty grams, and unlawful possession of narcotics paraphernalia. These charges remain pending. According to plaintiffs, since the April 2003 incident, they have been subjected to continual harassment from Township police, including causing a portion of their property to be seized by the Township Tax Assessor's Office without notice to them.

On July 17, 2003, plaintiffs filed a Notice of Claim under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, regarding the April 22, 2003 incident. On April 19, 2004, plaintiffs filed their complaint against Dover Township, Ocean County, and John Does A through Z. The complaint alleged libel (Count One), slander (Count Two), defamation (Count Three), negligence (Count Four), gross negligence (Count Five), willful disregard (Count Six), negligent compliance with the law (Count Seven), vicarious liability (Count Eight), breach of contract (Count Nine), and 42 U.S.C. 1983 (Section 1983) claims (Count Ten) arising from the April 22, 2003. Ocean County was later dismissed from the case by order dated June 11, 2004, upon its motion, leaving the Township as the only named defendant in the case.

On August 10, 2004, defendant moved to dismiss the complaint, pursuant to Rule 4:6-2(e), for failure to state a claim upon which relief may be granted. By order dated November 8, 2004, the court denied the motion as to Counts Four (negligence), Five (gross negligence), Six (willful disregard), Seven (negligent compliance with the law) and Ten (violation of 42 U.S.C. 1983) without prejudice, and granted the motion as to Counts One (libel), Two (slander), Three (defamation), Eight (vicarious liability) and Nine (breach of contract). The order also directed plaintiffs to provide more specificity with regard to Count Ten. Defendant subsequently filed an answer and propounded interrogatories upon plaintiffs.

A year later, defendant moved for summary judgment. On January 10, 2006, prior to disposing of the motion, Judge Oles forwarded a letter to counsel in which he expressed "having a substantial amount of difficulty understanding the Plaintiff's case." He directed plaintiffs' counsel to Rule 4:46-2(b) and the requirement that genuinely disputed facts must be referenced by citation to the record through depositions or affidavits. Judge Oles also advised that he was unable to "discern" the nature of plaintiffs' claims brought pursuant to the TCA. As a result, he adjourned the motion and directed plaintiffs' counsel to "submit a detailed response to [his] letter." Plaintiffs' counsel submitted a supplemental response on January 17, 2006.

The motion was denied without prejudice, and accompanying the January 31, 2006 order was a letter in which Judge Oles set forth a statement of reasons:

Dear Counsel:

I have received [plaintiffs' counsel's] letter of January 17, 2006 which includes additional documentations presented to the Court.

I must advise both attorneys that I am continuing to have difficulty with respect to the factual allegations involving this particular case.

I have reviewed the Statement of Facts that was attached to [defense counsel's] Brief. A substantial portion of the Statement of Facts merely is a recitation of what the allegations are in Plaintiff's Complaint. The balance of the Statement of Facts refers to police reports, search warrant affidavits and purported correspondence. There is no specific reference to any deposition taken of Morton Schneider or Barbara Schneider concerning their allegations.

With respect to [plaintiffs' counsel's] submissions to the Court, once again I am at [a] loss to understand the specifics of the Complaint. The Statement of Additional Facts or Counter-Statement that was presented to me does not, in fact, constitute facts. Again, they are mere allegations. There are no affidavits submitted to the Court and there is no reference to specific deposition testimony.

Furthermore, I directed [plaintiffs' counsel] to specifically make reference to the New Jersey Tort Claims Act and indicate to me under what provision of the Act does he perceive there is liability. That has not been done. I am unable to set forth factual findings and correlate those facts to a legal conclusion. See, Greater Atlantic and Pacific Tea v. Checchio, 335 N.J. Super. 495 (App. Div. 2000).

Because of my observation, I am denying the Motion, without prejudice. See Hancock v. Bor. of Oaklyn, 347 N.J. Super. 350 (App. Div. 2002).

On February 14, 2006, defendant moved for reconsideration of the motion. Defendant essentially argued that plaintiffs' failure to satisfy the requirements set forth under Rule 4:46-2(b) was not a basis to deny summary judgment.

In a letter opinion dated March 17, 2006, the court granted reconsideration, vacated the January 31, 2006 order, and granted summary judgment. The court found that plaintiffs' 1983 claims were barred as "[p]laintiff has failed to establish a specific municipal policy that somehow affected the Plaintiff." Monell v. Dept of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611, 636 (1978). Additionally, the court concluded that plaintiffs' claim alleging false arrest presented no evidence as to who arrested Morton Schneider and that the express provisions of N.J.S.A. 59:5-4 precluded liability based upon the municipality's "failure to investigate or to provide security for the home." Wuethrich v. Delia, 155 N.J. Super. 324, 326 (App. Div.), certif. denied, 77 N.J. 486 (1978).

In considering plaintiffs' claim of negligent hiring and retention of law enforcement officers, the court recognized that in Denis v. City of Newark, 307 N.J. Super. 304 (1998), such a cause of action existed, but found that plaintiff failed to identify any officer who was negligently hired or retained. As to plaintiffs' claims of intentional misconduct on the part of law enforcement officers, the court concluded that the "municipality would not be liable for the employee's [intentional] acts" and that the plaintiffs' claims of gross negligence were not supported by facts from the record. Finally, as to plaintiffs' claim that defendant failed to follow its own regulation or state law, the court, citing N.J.S.A. 59:2-4, stated the municipality was immune from liability arising out of its "failure to enforce any law." Bombace v. City of Newark, 125 N.J. 361, 366-67 (1991).

The present appeal followed. Plaintiffs raise the following points for our consideration:

POINT II

SUMMARY JUDGMENT CANNOT BE GRANTED AS A MATTER OF LAW WHERE GENUINE ISSUES OF MATERIAL FACT ARE IN DISPUTE.

POINTS III and IV

GENUINE ISSUES OF MATERIAL FACT COMPEL DENIAL OF THE MOTION TO DISMISS THE 42 SC 1983 CLAIMS.

POINT V

MUNICIPAL LIABILITY

POINT VI

NEW JERSEY TITLE 59

POINT VII

CERTAIN CLAIMED IMMUNITIES UNDER N.J.S.A. 59:1-1 ET. SEQ. ARE NOT APPLICABLE TO THE FACTS OF THIS CASE.

Subsequent to filing their notice of appeal and initial brief, plaintiffs moved to file a supplemental brief, which we granted. In their supplemental brief, plaintiffs raised additional points for our consideration:

POINT I

DEFENDANT-APPELLEE[']S MOTION FOR SUMMARY JUDGMENT WAS NOT SUPPORTED BY COMPETENT EVIDENCE AND AS SUCH, NO GENUINE ISSUE OF MATERIAL FACT EXISTED[.] ACCORDINGLY[,] THE COURT BELOW ERRONEOUSLY GRANTED SUMMARY JUDGMENT AND OUGHT PROPERLY BE REVERSED.

POINT II

THE TRIAL COURT'S CONSIDERATION OF THE DEFENDANT-APPELLEE[']S MOTION FOR RECONSIDERATION CONSTITUTED REVERSIBLE ERROR AND WAS NOT SUPPORTED BY EVIDENCE THAT THE COURT OTHERWISE IGNORED OR WAS UNAVAILABLE, AND AS SUCH THE COURT ERRED IN RECONSIDERING ITS ORIGINAL DENIAL OF SUMMARY JUDGMENT.

We have considered these contentions in light of the record and applicable principles of law, and we reject them. We affirm substantially for the reasons set forth by Judge Oles in his well-reasoned written opinion of March 17, 2006.

Reconsideration pursuant to Rule 4:49-2 is granted at the court's discretion and in the interests of justice. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), and is to

be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence [or, 3)] . . . if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence.

[Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).]

On appeal, we will not disturb a trial court's decision granting or denying relief under the rule absent a clear abuse of discretion. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002).

Summary judgment pursuant to Rule 4:46-2 is appropriate if the court finds, after accepting the facts as true and viewing them in the light most favorable to the non-moving party, that there are no genuinely disputed issues of fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In an appeal of an order granting summary judgment, we employ the same standard of review as the trial court. Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004). That standard of review is de novo, and we are not obliged to accept any findings of law made by the trial court. Singer v. Beach Trading Co., 379 N.J. Super. 63, 80 (App. Div. 2005) (citing Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).

Measured against the standards governing motions brought pursuant to these two rules, we are satisfied that the trial judge appropriately exercised his discretion to reconsider defendant's motion and that in doing so, there were no genuinely disputed issues of fact sufficient to warrant denial of defendant's motion for summary judgment.

In the original motion, as Judge Oles observed, defendant's Statement of Material Facts consisted largely of references to plaintiffs' allegations contained in the complaint. In the last four numbered paragraphs, however, defendant pointed out that defendant propounded interrogatories upon plaintiffs that requested that plaintiffs set forth the facts upon which they would rely to support their allegations of negligence, gross negligence, willful disregard of defendant's duties and responsibilities, negligent compliance with the law, and violations of Section 1983. Plaintiffs responded, "[c]ontained in the police reports and transcripts we will show police negligence, gross negligence, misconduct, and that damages that were the result."

Plaintiff submitted the following Counter-Statement of Facts in opposition to defendant's motion:

1. In paragraph 7 of their "Statement of Facts", the defense incorrectly states that the factual allegations underlying Count I and Count II (which are incorporated in Count IV) merely consist of false allegations and/or an insufficient investigation. In truth, the allegations in Count IV include much more. (See Complaint, A5, attached hereto) With the factual allegations of Count I and Count II incorporated within Count IV, the Fourth Count alleges that the defendants were negligent due to their:

Drafting and executing an incorrect criminal complaint, upon information contrary to the evidence gathered;

Conducted an insufficient investigation into the matter;

Failure to execute their duties and/or supervise the actions or inactions of its employees, failed to execute and adequately provide and maintain policies and procedures concerning their employees, agents and servants, failed to adequately hire and train persons appropriately for their positions, failed to prevent the wrongful conduct of its employees, agents and servants, failed to properly investigate and/or supervise, and were otherwise negligently and/or intentionally tortuous in their conduct and/or have acted in bad faith.

The defendants have also subjected plaintiffs to a pattern of unwarranted harassment, unconstitutional searches and procedures, and unjustified accusations; (See Count I, incorporated into Count IV)[.]

2. Count V alleges that all of the same factual allegations constitute "Gross Negligence".

3. Count VI alleges that all of the same factual allegations constitute "Willful Disregard" of the rights of the plaintiffs. Count VI is based upon the defendants' outrageous, wanton and willful conduct, and/or reckless indifference to the rights, safety, and interest of the plaintiffs, regarding the defendants' conscious disregard of their duties and obligations.

4. Count VII alleges that all of the previous factual allegations exist, and constitutes a failure to comply with its own regulations and/or state laws and requirements concerning the public (ie: the plaintiffs).

5. Count X alleges that all of the previous factual allegations exist and constitute a violation of the plaintiffs' common law rights, and their rights under the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. Section 1983. (See the complaint, A5 attached hereto)[.]

6. Pursuant to a Court Order dated November 8, 2004, the plaintiffs[] have provided additional specificity regarding basic details behind all of the Complaint's causes of action. (See Court Order of November 8, 2004, A13 attached hereto)[.]

Attached to the Counter-Statement of Facts was a document captioned, "ADDITIONAL SPECIFITY REQUIRED UNDER 11/8/04 ORDER[,]" which plaintiffs submitted in accordance with the court's November 8, 2004 order partially denying defendant's motion to dismiss for failure to state a claim pursuant to Rule 4:6-2(e). That document did not refer to any specific item in the record in the form required under Rule 4:46-2(b) to support plaintiffs' claims.

Rule 4:46-2(b) sets forth the requirements for opposing a summary judgment motion:

A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant's statement. Subject to R. 4:46-5(a), all material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact. An opposing party may also include in the responding statement additional facts that the party contends are material and as to which there exists a genuine issue. Each such fact shall be stated in separately numbered paragraphs together with citations to the motion record.

Defendant argued that summary judgment was appropriate because plaintiffs had failed to come forward with any facts that created a genuinely disputed issue of fact and that statutory immunities otherwise immunized defendant from liability. Although the judge apparently agreed that the requisite facts to defeat the motion were not evident from the plaintiffs' opposition, the judge nonetheless denied the motion.

In seeking reconsideration, defendant argued that, "plaintiffs' inability to specify the cause of action under which they seek relief, or to provide any factual foundation for such cause of action does not serve as a basis to deny the Township's motion for Summary Judgment." Defendant further argued that "plaintiffs' continued inability to articulate a cause of action at this late stage of the litigation requires that the present matter be dismissed."

Beyond the interrogatories propounded by defendant, no other formal discovery was undertaken. Those interrogatories, as defendant argued, contained no specific facts to support the allegations contained in the complaint. Likewise, in opposing summary judgment, plaintiffs failed to submit any affidavits "meeting the requirements of [Rule]1:6-6 or as otherwise provided in this rule and by [Rule] 4:46-2(b), setting forth specific facts showing that there was a genuine issue for trial." R. 4:46-5(a).

It is well settled that bare conclusions in the pleadings without factual support in affidavits will not defeat a motion for summary judgment. Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999). Likewise, a party's self-serving assertions will not create genuinely disputed issues of fact sufficient to defeat a motion for summary judgment. Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002).

Here, despite being afforded an opportunity to conduct discovery, plaintiffs sought to defeat defendant's motion with bare allegations and conclusions, an approach long rejected by rule and decisional law. Ibid.; Brae Asset Fund, L.P., supra, 327 N.J. Super. at 134; see also Wildoner v. Borough of Ramsey, 162 N.J. 375, 385-86f (2000) (finding as a matter of law the defense of qualified immunity applied to a municipality where the plaintiff made "bare allegations of malice" in support of his Section 1983 claim). Thus, we find no abuse of the court's discretion in granting defendant's motion for reconsideration.

Turning to the merits of defendant's arguments, a local government may not be sued under Section 1983 for an injury inflicted solely by its employees or agents. Instead, liability for injuries inflicted may only be imposed against a municipality, as an entity, when the complained of conduct involves execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. Monell, supra, 436 U.S. at 691-92, 98 S. Ct. at 2036, 56 L. Ed. 2d 635-36.

Count Ten of plaintiffs' complaint alleges that defendant's "tort[i]ous conduct" violated plaintiffs' common-law rights and rights under the Fourteenth Amendment to the Constitution of the United States and Section 1983. No specific governmental policy or custom executed on behalf of the Township was identified or alleged by plaintiffs. Thus, Judge Oles correctly concluded that plaintiffs failed to establish conduct involving a "specific municipal policy that somehow affected the Plaintiff."

Finally, plaintiffs' state law claims were either unsupported by competent evidence, as required under Rule 4:46-(b), or were not viable due to specific immunities under the TCA as Judge Oles articulated in his March 17, 2006 opinion. See N.J.S.A. 59:2-1 (providing that, except as provided by the TCA, a public entity is not liable for an injury and that any liability of a public entity is subject to any immunity and defense available to a private person); N.J.S.A. 59:2-2 (providing that a public entity is liable for an injury proximately caused by its employee within the scope of his or her employment, but is not liable if the public employee is not liable); N.J.S.A. 59:2-3 (providing that a public entity is not liable for injury resulting from its exercise of judgment; or legislative, judicial, or administrative action or inaction).

 
Affirmed.

In the original complaint, respondent Township of Dover was improperly pled as Dover Township Police Department. The answer was filed on behalf of the "Township of Dover (improperly pled as Dover Township Police Department)." The January 31, 2006 order also makes reference to respondent in this fashion.

Complaint against Ocean County dismissed with prejudice on June 11, 2004.

The court's November 8, 2004 order dismissed the counts in the complaint alleging libel, slander, vicarious liability, and breach of contract. That order is not the subject of this appeal.

Point I is a Preliminary Statement.

(continued)

(continued)

17

A-4312-05T1

August 10, 2007