ANTHONY CIACCIA v. DRAZIN and WARSHAW P.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANTHONY CIACCIA,

Plaintiff,

v.

DRAZIN and WARSHAW,

P.C., and BRIAN D. DRAZIN,

Defendants-Appellants,

and

VITO STERITI, SR.,

Defendant-Respondent,

and

BAMBOO BAR,

Defendant.

December 24, 2015

d

Submitted December 8, 2015 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3342-10.

Drazin and Warshaw, P.C., attorneys for appellants (Steven L. Kessel, on the brief).

Miriam R. Rubin, attorney for respondent.

PER CURIAM

Defendants Drazin and Warshaw, P.C. and Brian Drazin (collectively referred to as "the Drazin firm") appeal from a November 20, 2013 Law Division order granting the summary judgment motion filed by defendant Vito Steriti, Sr.1 The sole issue on appeal is whether the motion judge erred by declining to apply the principle of equitable tolling to plaintiff Anthony Ciaccia's claim against Vito, Sr. We affirm.

I.

We first review the salient facts and procedural history. On the night of May 26, 2007, plaintiff and his friend, Brian Schatzel, went to defendant Bamboo Bar (the Bar) in Seaside Heights. Upon leaving around 2:00 a.m., Schatzel began a conversation in the Bar parking lot with two lot attendants, later identified as Vito, Sr. and Vito, Jr. Plaintiff, who wanted to get back to his hotel, began to leave the premises in the hope that Schatzel would follow. Upon hearing the sound of broken glass behind him, plaintiff turned around and saw both lot attendants chasing Schatzel, and accusing him of breaking the windshield of a car in the parking lot. An altercation ensued, with plaintiff sustaining a fractured jaw from a punch he believed came from Vito, Jr. Police responded to the scene, arresting Vito, Jr., and charging him with aggravated assault.

Nine months later, in February 2008, plaintiff retained the Drazin firm to represent him regarding a potential civil suit. After hearing plaintiff's version of the altercation, Drazin advised plaintiff that the likelihood of recovery from a judgment against Vito, Jr. would be low. Regardless, the Drazin firm agreed to accept the case and represent plaintiff on a contingent fee basis.2

The Drazin firm prepared two different versions of a draft complaint against Vito, Jr., neither of which was timely filed before the statute of limitations expired. Notably, one of these draft complaints asserted a claim against Vito, Sr. alleging that he failed to properly supervise Vito, Jr. At his deposition, Drazin testified that these complaints were drafted by his secretary, and that any claim against Vito, Sr., at that time, "would not have been in my opinion a viable claim based upon the facts as I knew them to be." Thus, Drazin stated that had a complaint been filed on plaintiff's behalf, it would not have named Vito, Sr. as a defendant, since plaintiff had not identified Vito, Sr. as his assailant. Drazin's former secretary, however, related a different narrative. She testified that it was her understanding, based upon conversations with Drazin, that Vito, Sr. was a responsible party who should be included in the complaint.

At his deposition, Vito, Sr. testified that he was the one who actually struck plaintiff in the face. He claimed that he went to the police station after the incident and told the desk officer that they had mistakenly arrested Vito, Jr. for the assault; however, the officer rejected this claim because plaintiff had identified Vito, Jr. as his assailant.

On March 19, 2009, Vito, Jr. was indicted by a grand jury and charged with aggravated assault. On July 22, 2009, Vito, Sr. informed the public defender that he, not Vito, Jr., was the person who struck plaintiff. Following an investigation, the charge against Vito, Jr. was dismissed, and, on November 19, 2009, Vito, Sr. was indicted and charged with aggravated assault. Vito, Sr. eventually pled guilty to a charge of simple assault, and paid plaintiff restitution in the amount of $2,055.

Thereafter, on April 19, 2010, Drazin sent a letter to plaintiff, advising him that upon reviewing his file the previous week, "[t]o my dismay I learned that we did not file your lawsuit within the statutory time limits that are required by New Jersey law." Drazin further indicated that, "under the circumstances if you wish to pursue this matter, I suggest you contact another law firm."

Plaintiff filed a complaint for legal malpractice against the Drazin firm on July 1, 2010, seeking damages in the amount of the judgment he could have obtained if suit had been timely filed on his behalf. Plaintiff subsequently amended this complaint to include claims against Vito, Sr. and the Bar. Defendants each filed cross-claims for indemnification, and the Bar filed a third-party complaint, joining Vito, Jr. and Schatzel in the lawsuit. Plaintiff then amended his complaint again, this time to add Vito, Jr. as a direct defendant. On December 28, 2012, the court granted summary judgment, dismissing plaintiff's direct claim against Vito, Jr. for failure to comply with the statute of limitations.

At a November 20, 2013 hearing, the court heard cross motions for summary judgment. The first motion was brought by the Drazin firm, arguing that the failure to file a complaint against Vito, Sr. did not proximately cause any harm to plaintiff because, based on the doctrine of equitable tolling, the statute of limitations on plaintiff's claim against Vito, Sr. did not expire until after the firm's representation had concluded. The Drazin firm asserted that Vito, Sr. purposely waited until after the statute of limitations had expired on plaintiff's civil claim to come forward and admit to being the person who assaulted plaintiff; thus, the statute of limitations should equitably toll until Vito, Sr. came forward as the assailant in July 2009.

The judge denied the Drazin firm's motion for summary judgment, specifically rejecting the equitable tolling argument, and concluding that "there's no evidence that [Vito, Sr.] intentionally concealed his involvement for the purpose of thwarting plaintiff's claims."

The second motion for summary judgment was made by Vito, Sr., on the basis that plaintiff failed to file the claims against him within the statute of limitations. Because the judge had already declined to apply the doctrine of equitable tolling, she granted Vito, Sr.'s motion and dismissed plaintiff's claims against him.

On September 26, 2014, plaintiff and the Drazin firm entered into a settlement and filed a stipulation of dismissal with the court. As part of this settlement, plaintiff assigned to the Drazin firm all of his rights against Vito, Sr., including the right to appeal the order dismissing all claims against Vito, Sr. Accordingly, the Drazin firm now appeals the November 20, 2013 order granting Vito, Sr.'s motion for summary judgment.3

II.

When reviewing an order granting summary judgment, we "employ the same standard [of review] that governs the trial court." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Summary judgment is appropriate "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).

Prior to granting summary judgment, we must first conclude "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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2(c)." Ibid. "[W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

On appeal, the Drazin firm contends that the doctrine of equitable tolling should have been applied to plaintiff's claim against Vito, Sr., asserting that equitable principles estop him from invoking the statute of limitations as a defense.

Under the principles of equitable estoppel, "a defendant may be denied the benefit of a statute of limitations where, by its inequitable conduct, it has caused a plaintiff to withhold filing a complaint until after the statute has run." Trinity Church v. Atkin Olshin Lawson-Bell, 394 N.J. Super. 159, 171 (App. Div. 2007) (citations omitted). It is typically applied where a plaintiff "has been induced or tricked by defendant into missing a deadline." Pressler & Verniero, Current N.J. Court Rules, comment 36.4.1 on R. 4:5 4 (2015). "[E]stoppel may arise if a defendant wrongfully conceals or withholds information which it has a duty to provide to the plaintiff, thus causing the plaintiff to miss a filing deadline." Trinity Church, supra, 394 N.J. Super. at 171 (citation omitted). Importantly, "absent a showing of intentional inducement or trickery by a defendant, the doctrine of equitable tolling should be applied sparingly and only in the rare situation where it is demanded by sound legal principles as well as the interests of justice." Freeman v. State, 347 N.J. Super. 11, 31 (App. Div.), certif. denied, 172 N.J. 178 (2002).

In support of their equitable estoppel argument, the Drazin firm emphasizes the fact that Vito, Sr. did not come forward as plaintiff's assailant until more than two years after the incident. They principally rely on Dunn v. Borough of Mountainside, 301 N.J. Super. 262 (App. Div. 1997), certif. denied, 153 N.J. 402 (1998), where this court held that a plaintiff's claim against a police officer who sexually assaulted her was equitably tolled because the officer had an affirmative duty to report his own crime.

The motion judge distinguished the case at hand from Dunn on the basis that, unlike a police officer, Vito, Sr. had no affirmative duty to report his own crime. The Drazin firm argues, however, that this is an improper interpretation of the holding in Dunn, contending that the judge "misread Dunn as requiring a duty to come forward and admit involvement as an element of equitable estoppel," when "the case only required that the defendant's silence induce the inability to file suit within the statute of limitations." The Drazin firm further contends that a proper reading of Dunn supports their position that Vito, Sr.'s silence alone is sufficient to warrant equitable tolling, irrespective of his claimed lack of intention to thwart the statute of limitations. We disagree.

A careful reading of Dunn confirms that the motion judge correctly interpreted and applied the holding of that case

Those who may benefit from a statute of limitation can have no part in preventing a potential claimant from learning their identity. Of course, unless under an affirmative duty, they need not come forward voluntarily, unasked. They may hide in the darkness caused by the potential plaintiff's lack of knowledge of their identity. But they cannot, through acts or omissions, in any way perpetuate the darkness.

[Id. at 280 (emphasis added) (quoting Davis v. Frapolly, 742 F. Supp. 971, 975 (N.D. Ill. 1990)).]

Thus, a tortfeasor's silence ordinarily does not trigger equitable tolling. In Dunn, the police officer's silence was interpreted as an omission that "perpetuated the darkness" only because of his affirmative duty, as a law enforcement officer, to disclose his own crimes. "His failure to report his criminal actions, in light of his clear duty as a police officer to do so, hindered plaintiff from filing suit against him in a timely manner." Id. at 281.

The case before us is clearly distinguishable. Here, we discern no evidence that Vito, Sr. took any affirmative steps to conceal his identity as plaintiff's assailant. In fact, he testified to his efforts to turn himself into police on the date of the incident. Regardless, even assuming that this testimony was false, Vito, Sr.'s silence still does not warrant application of equitable estoppel. Absent any purposeful conduct undertaken to thwart the discovery of his crime, our case law is clear that Vito, Sr. had no obligation to make plaintiff or law enforcement aware of his identity as the assailant. Therefore, as Vito, Sr. had no affirmative duty to disclose his crime, we conclude that the doctrine of equitable tolling does not apply to any potential claims against him arising from the altercation.4

The "exacting" requirements of equitable tolling, in light of the present facts, simply have not been met in this case. See Trinity Church, supra, 394 N.J. Super. at 171. Thus, the statute of limitations remains a bar to plaintiff's claim, and the court did not err by granting Vito, Sr.'s motion for summary judgment.

Affirmed.

1 For ease of reference, we refer to Vito Steriti, Sr. and his son, Vito Steriti, Jr. as Vito, Sr. and Vito, Jr.

2 The contingent fee agreement referenced the date of the incident without listing any potential defendants.

3 Plaintiff and the Bar entered into a stipulation of dismissal on July 31, 2014. (Da45).

4 Additionally, we note that one of the draft complaints prepared by the Drazin firm included allegations against Vito, Sr. Thus, the firm was clearly aware that Vito, Sr. was involved in the incident, and contemplated asserting a claim against him, prior to the expiration of the statute of limitations.