MICHAEL TAFFARO v. DANIEL NGAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
December 8, 2014Argued telephonically November 20, 2014 Decided
Before Judges Accurso and Manahan.
On appeal from the Superior Court of New Jersey, Civil Division, Special Civil Part, Bergen County, Docket No. DC-018922-12.
Robert Pentangelo argued the cause for appellant (Michael Taffaro, on the pro se brief).
Daniel Ng, respondent pro se.
This appeal arises out of the dismissal with prejudice of a civil action filed by Michael Taffaro, plaintiff, against Daniel Ng, defendant. We affirm.
Defendant was a subpoenaed witness for the state in a trial and a retrial of a criminal contempt indictment lodged against plaintiff. After plaintiff was convicted by a jury, the conviction was reversed on appeal upon a finding of improper conduct by the trial judge. The Bergen County Prosecutor's Office (Prosecutor) retried the case. Plaintiff was again convicted by a jury. The present litigation, the second civil action brought by plaintiff against defendant, averred several causes of action, all relating to claims by plaintiff that defendant committed "felony perjury" during his testimony in the criminal proceedings.1
On November 16, 2012, the trial judge granted defendant's motion to dismiss the complaint with prejudice. After an appeal was filed upon notice to the trial court, the judge made supplementary findings. R. 2:5-1(b). The court found defendant was afforded immunity due to the "litigation privilege." The court also found the complaint alleged causes of action that were either unavailable to plaintiff as a matter of law or were "res judicata" by virtue of the jury verdict resulting in plaintiff's conviction.
During the pendency of the civil action, the Prosecutor filed a letter brief supporting defendant's motion seeking dismissal of plaintiff's complaint based upon the Supreme Court's ruling in Loigman v. Twp. Comm., 188 N.J. 566 (2006). In opposition to the motion, plaintiff argued below, and again on appeal, that Loigman was limited to 42 U.S.C.A. 1983 actions (" 1983").
In Loigman, the Court addressed whether the litigation privilege was available in a 1983 case. Id. at 572. In its decision, the Court held the litigation privilege, as established by common law and adopted by case law, was intended to protect witnesses in judicial proceedings from subsequent civil lawsuits. Id. at 593-94. As the Court noted, the policy that "runs through judicial, prosecutorial, and witness immunity is the need to ensure that participants in the judicial process act without fear of the threat of ruinous civil litigation when performing their respective functions." Id. at 581.
As noted, plaintiff argues that Loigman is inapplicable as it referenced litigation immunity only in terms of 1983 actions. We disagree. Loigman did not limit the privilege to 1983 actions. Rather, it extended the privilege to 1983 actions.
It is undisputed the testimony defendant provided in the two trials was compelled by subpoena. As such, defendant's testimony was subject to the "impenetrable shield" within the intendment of the litigation privilege. Finally, since plaintiff's averments in the complaint were premised entirely upon defendant's conduct arising out of his "immune" testimony, we find no basis to reverse the court's dismissal of the complaint.
After a careful review of the record, we conclude plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
1 By order of April 15, 2011, the first civil action premised upon similar allegations was dismissed on summary judgment. Thereafter, on August 2, 2012, Taffaro filed the complaint now under review.