AMY E. VASQUEZ v. DAWN ADDIEGO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2994-08T32994-08T3

AMY E. VASQUEZ,

Plaintiff-Appellant,

v.

DAWN ADDIEGO, AUBREY FENTON,

SEAN KENNEDY, MICHAEL WARNER

and CHARLES LAMBIASE,

Defendants-Respondents.

________________________________

 

Submitted December 15, 2009 - Decided

Before Judges Skillman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-7102-06.

William H. Buckman, attorney for appellant.

Capehart, Scatchard, P.A., attorneys for respondents (Anthony T. Drollas, Jr., on the brief).

PER CURIAM

Plaintiff Amy E. Vasquez appeals from the January 9, 2009 Law Division order granting summary judgment to defendants and dismissing her complaint with prejudice. We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff was a Democratic candidate for Burlington County Freeholder in 2005. Defendants Dawn Addiego and Aubrey Fenton were plaintiff's opponents, and defendants Sean Kennedy, Michael Warner and Charles Lambiase were officials of the Burlington County Republican Committee.

Plaintiff claims that defendants made false and defamatory statements in television and print campaign advertisements that she did not pay property taxes in Burlington County and had a warrant issued against her for failing to pay New York State income taxes. Some of the print advertisements included a copy of a tax warrant docketed by the New York State Department of Taxation and Finance against plaintiff on February 25, 1998, for failure to pay State income taxes.

On February 8, 1999, the Department of Taxation issued a Notice to Vacate Tax Warrant and Release Lien (the Notice), which indicated that "due to an inadvertence, the warrant was prematurely issued and filed." The Notice vacated and canceled the warrant, which was attached to the Notice, released any lien against plaintiff's real or personal property, and directed the Clerk of New York to "mark the official records accordingly."

On November 4, 2005, plaintiff filed a pro se complaint against Addiego, Fenton, Kennedy and "John Does," alleging that they defamed her by publishing and distributing the false statements, and by negligently, carelessly and recklessly failing to ascertain that the warrant "was a clerical error and without factual support." Plaintiff also alleged that defendants knowingly or recklessly disregarded the truth about the warrant having been vacated.

Defendants filed a Rule 4:6-2(e) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. On February 17, 2006, Judge Colalillo granted the motion and dismissed the complaint without prejudice, finding that plaintiff, a public figure, made "bare conclusary assertions . . . that defendants knew or reasonably should have known that the statement was false with no other factual reference to lend support to the contention[,]" and failed to satisfy the "actual malice" standard to sustain a defamation claim.

Plaintiff filed a second pro se complaint on April 4, 2006, adding Warner and Lambiase as defendants, asserting more detailed allegations against each defendant, and raising a new allegation that defendants altered or negligently, carelessly and recklessly authorized the alteration of the Notice in order to falsely represent her to the public as a tax cheat who had a valid warrant issued against her for failing to pay State income taxes.

Defendants filed a Rule 4:6-2(e) motion to dismiss the second complaint. June 23, 2006, Judge Little granted the motion and dismissed the complaint without prejudice, finding that plaintiff failed to assert sufficient allegations of actual malice.

Plaintiff filed a third pro se complaint on October 19, 2006, asserting allegations similar to those in the second complaint and raising a new allegation that defendants received and reviewed the Notice with the attached warrant, and thus understood that plaintiff was not delinquent in paying taxes but nonetheless "published the erroneous warrant[.]" Plaintiff also alleged that defendants negligently, carelessly and recklessly disregarded that the Notice indicated that the warrant was "an error and without factual support."

Defendants filed a Rule 4:6-2(e) motion to dismiss the third complaint. Judge Kassel denied the motion, finding that because the Notice indicated that the warrant was attached, plaintiff had established a sufficient factual basis supporting her claim that defendants knew or recklessly disregarded the fact that the warrant had been vacated.

Thereafter, plaintiff, now represented by an attorney, sought to depose two of the defendants but they did not appear, prompting her to file a motion to suppress their answer for failure to provide discovery. Defendants filed a cross-motion for summary judgment or, alternatively, for a protective order limiting the scope of discovery. In support of the summary judgment motion, defendants submitted certifications stating that they never reviewed the advertisements or the Notice and did not publish the warrant with knowledge that it had been issued in error.

Judge Kassel denied the summary judgment motion without prejudice, finding that an issue of fact existed as to whether the Notice and warrant were attached to one another in 2005, thus providing support for the allegation that defendants acted with reckless indifference in publishing the advertisements. As to the remaining motions, the judge was initially inclined to permit defendants' depositions on this issue but decided to limit discovery "from the appropriate officials of the State of New York" as to whether the Notice and warrant were attached in 2005. The judge then concluded as follows:

Let's see where we go after this, and then if need be, either I'll in essence handle a motion for reconsideration on the summary judgment motion or a motion to expand discovery to some of the more broader areas. All right, but that's what it is, discovery shall be limited without prejudice to either side's request to expand discovery, to the issue as to whether [the Notice] was attached to [the warrant].

Plaintiff's counsel expressed his agreement with the judge's ruling and found it appropriate. Without objection, the judge entered an order on January 30, 2008, reflecting his oral decision.

Plaintiff subsequently sought to depose defendants but they refused to appear. On April 18, 2008, plaintiff filed a motion to amend the January 30, 2008 order and to extend discovery. Judge Kassel entered an order on April 9, 2008, denying the motion to amend but extending discovery to August 9, 2008 to provide plaintiff additional time to obtain discovery from the New York officials.

On August 4, 2008, plaintiff filed a motion to expand and extend discovery. She claimed that on July 23, 2008, she went to the county clerk's office in New York and requested a copy of the Notice, and that an individual named Michael Markowitz (Markowitz) informed her that the original and any copies of the warrant and Notice were destroyed in a flood. Plaintiff also claimed that Markowitz advised her that the Notice "would have been the only document available at the County Clerk's office." She submitted to the court a copy of a computer printout with a handwritten notation, purportedly written and signed by Markowitz, stating: "To Whom It May Concern, After thorough search, vacate order dated 02/08/99 is no longer in county clerk office (only document that would have been available)." Judge Kassel entered an order on August 29, 2008, denying the motion.

Plaintiff did not proceed with the permitted discovery. As a result, on October 3, 2008, defendants filed a summary judgment motion. At oral argument, Judge Fox asked plaintiff's counsel if plaintiff possessed any evidence that defendants knew about the Notice. Counsel responded, "Yeah. I mean, there's one procedural problem with the case Judge, and that is . . . in actuality [Judge Kassel] had originally allowed for depositions of the parties on this issue of knowledge and then the [January 30, 2008] order mistakenly reflected that we could only depose and question New York officials." Counsel conceded, however, that Judge Kassel denied plaintiff's motions to reconsider the January 30, 2008 order. The judge, therefore, refused to reconsider the discovery issue.

Following oral argument, Judge Fox found as follows:

[O]ther than the certification of the plaintiff and the [handwritten note allegedly signed by Markowitz], plaintiff attaches no affidavits, no certification, and obviously no deposition transcripts since plaintiff chose not to depose any New York officials, as she was permitted to do.

. . . [T]he notation and signature of the purported clerk in New York is not notarized and, in fact, does not even identify his alleged position in the clerk's office, or that he has any personal knowledge of his purported statement. In short, . . . plaintiff has put forth no proofs of any kind that, in fact, the defendants had knowledge of the vacating of the warrant. . . .

. . . .

. . . [T]he plaintiff has failed to set forth any evidence of actual malice, any evidence to contradict the sworn certification of the defendants, which would indicate that the defendants saw or were aware of the notice to vacate the warrant at any time prior to the publishing of the campaign advertising in question.

The judge entered an order on January 9, 2009, granting defendants' motion, finding that plaintiff's proofs fell "woefully short of creating an issue of fact" sufficient to defeat summary judgment. This appeal followed.

On appeal, plaintiff contends that Judge Fox erred in granting summary judgment because there exists a genuine issue of material fact as to whether defendants acted with actual malice regarding all of her defamation claims, not just those relating to the Notice and warrant. We disagree.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536).

Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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). If there is no genuine issue of material fact, we must then decide "whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008).

Summary judgment practice is particularly well-suited in defamation actions involving public figures. DeAngelis v. Hill, 180 N.J. 1, 12 (2004). Plaintiff does not dispute that she is a public figure. False statements about public figures are not actionable unless published with "actual malice." Lynch v. New Jersey Educ. Ass'n., 161 N.J. 152, 165 (1999) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)).

To satisfy the actual-malice standard, a plaintiff must show by clear and convincing evidence that the publisher either knew that the statement was false or published with reckless disregard for the truth. To prove publication with reckless disregard for the truth, a plaintiff must show that the publisher made the statement with a high degree of awareness of [its] probable falsity or with serious doubts as to the truth of the publication. To be actionable, the recklessness in publishing material of obviously doubtful veracity must approach the level of publishing a knowing, calculated falsehood. Negligent publishing does not satisfy the actual-malice test.

[Ibid. (internal quotations and citations omitted).]

Despite her more than three-year effort to pursue her defamation claims against defendants, plaintiff undertook no discovery to support those claims. There is no evidence, let alone clear and convincing evidence, that defendants knew that the advertisements were false, or published them with reckless disregard for the truth, or that they made the statements with a high degree of awareness of their probable falsity or with serious doubts about their truth. Accordingly, summary judgment was properly granted.

Plaintiff's remaining contention that Judge Kassel erred by prohibiting her from deposing defendants, and by denying her motion to amend the January 30, 2008 order to expand discovery lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Plaintiff is an attorney-at-law of the State of New Jersey.

Markowitz's official capacity, if any, is unknown.

We note that the computer printout and handwritten note are dated January 23, 2008, thus indicating that plaintiff may have had this document in her possession before July 23, 2008.

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A-2994-08T3

April 23, 2010