JOHN M. SYDLAR v. JUSTIN COCUZZA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN M. SYDLAR,

Plaintiff-Appellant,

v.

JUSTIN COCUZZA, JOHN MAGNER,

WAYNE DAVIS, JOSEPH H. LAMB,

MICHAEL PIGOTT, THE BOROUGH

OF KEANSBURG, AND KEANSBURG

POLICE DEPARTMENT,

Defendants-Respondents,

and

DOUGLAS GOGAN AND HEATHER GOGAN,

Defendants.

___________________________________

December 15, 2015

Argued October 27, 2015 Decided

Before Judges Fisher and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4661-12.

John M. Sydlar, appellant, argued the cause pro se.

Tracy B. Bussel argued the cause for respondents (Gebhardt & Kiefer, PC, attorneys; Ms. Bussel, on the brief).

PER CURIAM

Plaintiff John M. Sydlar appeals an order for summary judgment dismissing his claims for malicious prosecution, malicious abuse of process, false arrest, and negligence for insufficient proofs and untimeliness. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On October 17, 2010, after a neighborhood dispute, defendant Douglas Gogan was involved in a physical altercation with five others outside his home. When defendant Keansburg police officer Justin Cocuzza arrived at the scene, he observed three men fleeing into a neighboring house, while two other men continued attacking Gogan. After Cocuzza spoke with Gogan and his wife Heather who had witnessed the fight, he called for additional police assistance and proceeded to the house where he had seen the three men enter after fleeing the scene. Cocuzza knocked on the door, announcing himself, but the occupants refused to allow entrance, and insisted that the officers needed a warrant. Despite his requests, the occupants continued to refuse to open the door, and thereafter, Cocuzza and two other officers forced the door open. Sydlar was inside the house. When the officers informed him that he was under arrest, Cocuzza stated that Sydlar resisted and force was needed to effect the arrest.

Sydlar was charged with rioting, N.J.S.A. 2C:33-1(a)(1), obstruction of justice and investigation of a crime, N.J.S.A. 2C:29-1, resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a), disorderly conduct, N.J.S.A. 2C:33-2(a)(1), and simple assault, N.J.S.A. 2C:12-1(a)(1).1

After the grand jury declined to indict Sydlar on the charges of aggravated assault, resisting arrest and rioting, the remaining charges were remanded to municipal court where Sydlar pled guilty to a municipal offense of engaging in noisy conduct which was a breach of the peace in a disorderly manner, Keansburg, N.J., Gen. Rev. Ordinances 3:17.4 (1989), with the remainder of the charges being dismissed.

In response to the events of October 17, 2010, and his subsequent arrest, Sydlar filed a complaint on November 21, 2012 against defendants,2 alleging malicious prosecution, abuse of process, false arrest and negligence. During the discovery period, Sydlar served interrogatories on defendants. In response to defendants' motion, Sydlar was ordered to "re-draft his discovery requests to a reasonable number of requests, with the requests leading to information that could lead to discoverable evidence and serve these discovery requests upon Defendants' counsel within 30 days" of the June 4, 2014 order. Sydlar did not serve any revised interrogatories. The court order that compelled Sydlar to provide answers to interrogatories, execute HIPAA authorizations, and provide requested documents went unheeded and he adjourned the deposition requested of him. When defendants moved for a protective order, Sydlar requested an adjournment of oral argument on several occasions and then failed to appear on the scheduled date. The discovery period was extended twice. Following the close of discovery, summary judgment was granted to defendants. It is from that order that Sydlar now appeals.

Sydlar argues that summary judgment was inappropriate as discovery was incomplete and the papers raised material disputed issues of fact. He further contends that he relied on a letter defendants wrote to the court requesting a case management conference to discuss discovery issues, and assumed a conference would be held. We find these arguments to be without merit. Sydlar did not comply with any discovery requests within the discovery period nor did he take the opportunity to serve proper discovery on defendants. A further extension of discovery was not sought.3 Defendants moved for summary judgment at the close of discovery as permitted under Rule 4:46-1. We review a ruling on summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Thus, we consider, as the motion judge did, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 406 (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then decide whether the trial court correctly interpreted the law. We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009). Applying these standards, we conclude that the trial judge properly granted summary judgment against plaintiff.

Sydlar contends that the documents supporting the summary judgment motion were not provided to him during the discovery period and that his response to the moving statement of material facts raised issues of fact, therefore requiring a denial of summary judgment. However, as noted, Sydlar did not pursue any discovery requests. Moreover, the documents supporting the motion were the complaint, the warrants issued to Sydlar, the disposition of the charges, and the plea transcript from the municipal court. With the possible exception of the transcript, Sydlar possessed all of these documents. We find that Sydlar's failure to pursue and comply with discovery was not an impediment to the consideration of the summary judgment motion.

Sydlar also argues that he filed his complaint in a timely manner and provided sufficient proofs as to the required elements of the counts in his complaint. We conclude he did not. In order to make a prima facie case of malicious prosecution, plaintiff must show that the defendant's original action was "(1) instituted without reasonable or probable cause; (2) actuated by malicious motive; (3) ended in favor of plaintiff and (4) resulted in special grievance to plaintiff." Paul v. National Education Ass'n, 189 N.J. Super. 265, 267 (Law Div. 1983), aff'd, 195 N.J. Super. 426 (App. Div. 1984). "The essence of the cause of action is lack of probable cause, and the burden of proof rests on the plaintiff." Lind v. Schmid, 67 N.J. 255, 263 (1975).

The trial judge found that Sydlar could not prove the police lacked probable cause, thus causing the claim to fail.

[I] find that the officers acted in this instance in response to an alarm of an altercation. When the officers arrived they observed individuals engaged in an assault of Douglas Gogan. As the officers approach-ed they watched these individuals run from the scene into the premises of [the neighboring house]. The officers then apprehended the individuals from within who were subsequently identified by Gogan as the assailants.

The police apprehended Sydlar following their own observations and an eyewitness immediately identified him. When considering whether a law enforcement officer possessed probable cause in executing an arrest, the court should look at the totality of the circumstances. Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000). Only in those instances in which allegations are "groundless" can a lack of probable cause be demonstrated in a malicious prosecution claim. See Paul, supra, 189 N.J. Super. at 270. As Sydlar is unable to prove the element of lack of probable cause, the cause of action fails.

The tort of malicious abuse of process involves "the unlawful use of a lawful process after its issuance." Earl v. Winne, 34 N.J. Super. 605, 614 (Law Div. 1955) (citations omitted) (emphasis added). In other words, the process is not abused unless "after its issuance the defendant reveals an ulterior purpose he had in securing it by committing 'further acts' whereby he demonstrably uses the process as a means to coerce or oppress the plaintiff." Tedards v. Auty, 232 N.J. Super. 541, 550 (App. Div. 1989) citing Gambocz v. Apel, 102 N.J. Super. 123, 130-31 (App. Div.), certif. denied, 52 N.J. 485 (1968). In the absence of some "coercive or illegitimate use of the judicial process there can be no claim for its abuse." Penwag Property Co. Inc. v. Landau, 148 N.J. Super. 493, 499 (App. Div. 1977), aff'd, 76 N.J. 595 (1978). The trial judge again noted that the police officers had probable cause to effect the arrest. He found that "the complaint cites mere unsubstantiated theories regarding further acts taken by the police officers." Sydlar did not set forth any factual acts the officers had committed to show a coercive or illegitimate use of the judicial process.

Similarly, Sydlar's claim of false arrest must fail. The trial judge stated: "[He] has been unable to establish a valid claim for false arrest because the record proves probable cause to arrest the plaintiff existed. . . . The court finds that the officers' observations and eyewitness identifications provided an ample probable cause for effectuating the arrest on October 17, 2010."

Lastly, Sydlar contends the trial court used the wrong date in its application of the statute of limitations and, therefore, erroneously found the negligence claim to be untimely. Sydlar was arrested and charged on October 17, 2010. The cause of action thus accrued on that date. The complaint was not filed until November 21, 2012, more than two years after the statute of limitations had run.4 Sydlar's argument that the statute of limitations did not begin until November 27, 2010, when he was charged with aggravated assault, is incorrect. The aggravated assault charge was not a new charge stemming from a separate incident, but rather was merely an upgrade from the simple assault charge relating to the events of October 17. Thus, the cause of action as to negligence was properly barred as untimely.

In summary, the order granting summary judgment to defendants is affirmed.

Affirmed.

1 This was upgraded to aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1), when it was learned that Douglas had suffered more severe injuries than previously known.

2 The defendants included individual Keansburg police officers.

3 We note that although Sydlar was a self-represented litigant, he is an attorney admitted to practice in this state.

4 An action brought against a public entity or employee must be filed within two years of accrual of the claim. N.J.S.A. 59:8-8(b).