APRIL ANTHONY VENUTI v. CITY OF ELIZABETH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2697-07T32697-07T3

APRIL ANTHONY VENUTI,

Individually and as

Administrator Ad

Prosequendum for the

ESTATE OF MARK F. VENUTI,

Deceased, on behalf of the

Heirs-at-Law, and Next-

of-Kin of the Decedent,

Plaintiff-Appellant,

v.

CITY OF ELIZABETH; ELIZABETH

POLICE DEPARTMENT; POLICE

OFFICER MICHAEL CARRETO;

POLICE OFFICER CHRISTOPHER

McMAHON; DETECTIVE FRANK

SALTARELLI; and ELIZABETH

POLICE DISPATCHER,

Defendants-Respondents.

___________________________________________________________

 

Submitted October 28, 2008 - Decided

Before Judges Collester and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Docket No.

L-2816-07.

April Anthony Venuti, appellant pro se.

Londa & Londa, attorneys for respondent

Police Officer Michael Carreto; LaCorte,

Bundy, Varady & Kinsella, attorneys for

respondents City of Elizabeth and the

Elizabeth Police Department; Edward J.

Kologi, attorney for Police Officer

Christopher McMahon; Palumbo & Renaud,

attorneys for respondent Detective Frank

Saltarelli (Felice T. Londa, Robert F.

Varady, Edward J. Kologi, and Robert F.

Renaud, on the joint brief).

PER CURIAM

Plaintiff April Anthony Venuti, individually and as Administrator Ad Prosequendum for the Estate of Mark F. Venuti, deceased, appeals from an order entered on December 21, 2007, dismissing her complaint with prejudice as to all defendants for failure to state a claim upon which relief can be granted. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm substantially for the reasons stated by the trial court.

This matter arises from an incident on February 24, 2001, when two police officers employed by the City of Elizabeth were called to the apartment of plaintiff's decedent, Mark F. Venuti, to investigate a disturbance. Although it was ultimately determined that Mr. Venuti was not armed, the responding officers had reason to believe that he was armed and, as the trial court noted, Mr. Venuti was shot twice by one of the police officers who was "allegedly in fear for his life and the life of his partner." Tragically, Mr. Venuti died the following day--on February 25, 2001.

On February 14, 2003, plaintiff filed a seven-count complaint in the United States District Court for the District of New Jersey. Plaintiff's complaint, which asserted wrongful death and survival claims together with various federal claims, was dismissed on October 3, 2006. Judge Brown dismissed plaintiff's federal claims with prejudice and her state claims without prejudice. More than ten months later--on August 13, 2007--plaintiff filed a substantively identical complaint in the Superior Court of New Jersey, Law Division.

The trial court's reasons for granting defendants' motion to dismiss plaintiff's complaint included the following:

In this case, the bright-line deadline for filing the instant complaint under [Mitzner v. West Ridgelawn Cemetery, Inc., 311 N.J. Super. 233 (App. Div. 1998)] was 45 days after the order dismissing the federal complaint, or November 17, 2006. Plaintiff did not file the instant complaint prior to that date. Instead, plaintiff delayed until August 13, 2007, nearly nine months thereafter.

Plaintiff has not satisfied all five elements [set forth in Negron v. Llarena, 156 N.J. 296 (1998)] for substantial compliance. Plaintiff has not shown that her delay has caused a "lack of prejudice" to the defendants. Defendants may no longer be able to locate their witnesses, those witnesses may no longer be able to clearly recall the incident in question, and defendants are prejudiced by a disturbance of the repose afforded by the dismissal of the federal suit.

Plaintiff has not shown she has taken a "series of steps" to comply with the statute of limitations. Plaintiff has shown that she attempted to find counsel in November 28, 2006 and that she generally continued to seek legal counsel after that. Plaintiff asserts her fragile mental state prevented her from reviewing the voluminous case history herself. However, plaintiff states in a letter to the court dated August 13, 2007 that she committed herself to 6-8 hours of studying and homework to complete an EMT course at Union County Community College and now that the training was over, she "[had] the energy to try to file the enclosed paperwork on [her] own." Plaintiff shows only that an attorney had declined to take her case on April 11, 2007 and does not assert that she attempted to find other legal counsel during the intervening four months.

Plaintiff has not shown a "general compliance" with the purpose of the statute. In addition to the fact that plaintiff delayed ten months before filing her state claim, plaintiff's reliance on [Berke v. Buckley Broad. Corp., 359 N.J. Super. 587 (App. Div.), certif. denied, 177 N.J. 571 (2003)] is misplaced. The forum in her federal case was not "erroneously selected." Judge Brown heard her federal case and dismissed her federal claims on the merits. Moreover, plaintiff did not refile in the proper state forum to "rectify the error;" rather, plaintiff filed her state claims because Judge Brown declined to exercise supplemental jurisdiction after dismissing plaintiff's federal claims.

Plaintiff has not provided evidence that she gave defendants "reasonable notice" of her intent to file a superior court claim. Plaintiff has offered her inability to find counsel to represent her and her fragile mental state as a "reasonable explanation" why she did not comply strictly with the statute. However, plaintiff has not offered a reasonable explanation why she delayed the four months between April 11, 2007 until August 13, 2007, during which time she apparently abandoned her claim and committed herself instead to Emergency Medical Technician training.

. . . .

In this case, plaintiff seeks to recover for civil damages stemming from factual issues identical to those already decided by Judge Brown in the prior federal proceeding, namely whether the officers acted unreasonably and were not protected under the immunities of the Tort Claims Act for the actions on the night Mr. Venuti died. This central issue has already been litigated in the prior federal proceeding, Judge Brown issued a final judgment on the merits, the determination of the issue of immunity was essential to the dismissal, and the parties in the instant case are identical to those in the prior proceeding. In fact, plaintiff admits in her brief that the parties have "already addressed a nearly identical complaint in federal court." Therefore, collateral estoppel under [Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511 (2006)] applies in this case.

Based on our review of the record we are satisfied the court's findings are adequately supported by sufficient credible evidence, Rule 2:11-3(e)(1)(A), and the court correctly applied the controlling legal principles. Therefore, the order dismissing plaintiff's complaint is affirmed substantially for the reasons stated by Judge Wertheimer in his written decision on December 21, 2007.

Affirmed.

(continued)

(continued)

6

A-2697-07T3

November 21, 2008