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Martin v. Township of Rochelle Park

Decided: September 30, 1976.

MARGARET MARTIN, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF ROCHELLE PARK, IN THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND JAMES D. DEMETRAKIS, DEFENDANTS-RESPONDENTS



Carton, Kole and Larner. The opinion of the court was delivered by Carton, P.J.A.D.

Carton

Plaintiff appeals from a summary judgment dismissing her action against defendants Township of Rochelle Park and Demetrakis as barred by the statute of limitations, N.J.S.A. 59:8-8.

Plaintiff's complaint, filed on June 25, 1975, alleged that the township intentionally and maliciously repealed a former ordinance prohibiting diners within the municipality in order to accommodate a large motel owner after informing her that the continued operation of her small diner was prohibited by the ordinance. As to defendant Demetrakis, who is the former township attorney, plaintiff asserts that he willfully and maliciously defended plaintiff's earlier suit to invalidate the "diner-prohibition" ordinance while simultaneously negotiating with representatives of the motel and drafting the present repealer ordinance. She charges that his arbitrary and capriciously discriminatory conduct against her and in favor of the motel owner resulted in damage to her.

The facts in this case are somewhat unusual. It appears that in 1969 plaintiff owned a diner which she leased to a tenant. The diner was destroyed by fire that year. In July 1971 plaintiff found a new tenant to operate the diner, but was informed at that time that the township could not issue her the appropriate operating license because an ordinance adopted in August 1970 prohibited the operation of diners in the municipality. On September 15, 1971 plaintiff, without seeking a variance from the diner-prohibition ordinance, brought a prerogative writs action to declare that ordinance invalid. Judgment was entered against her in July 1972, and affirmed in October 1973 by this court. Shortly after this court's decision a newly-appointed township attorney noted, in reviewing a comparatively new ordinance of the township, that a section of it repealed the ordinance prohibiting diners. He immediately informed the Appellate Division and the interested parties and, as a result, the Appellate Division judgment was vacated.

After learning in October 1973 of the existence of the repealer ordinance, plaintiff instituted an action in February 1974 against the township charging unequal treatment and bad faith discrimination against her in favor of the motel operator. That action was voluntarily dismissed by her. On June 25, 1975 she filed the complaint which is the subject of the present suit and this appeal.

We conclude that the trial judge properly granted the summary judgment in favor of defendant municipality. The nature of this action is one for the recovery of damages against the municipality as a consequence of the misconduct of its officials. Consequently, the provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. , are clearly applicable, and not those of the general limitation statute, N.J.S.A. 2A:14-1 et seq.

The Tort Claims Act regulates both the substantive liability of public entities as well as the procedural requirements which must be observed when bringing a claim against a public body. The act contains a specific statute of limitations

barring actions against a public entity after two years from the accrual of the cause of action:

b. Two years have elapsed since the accrual of the claim. * * * [ N.J.S.A. 59:8-8]

Thus, the date of accrual is of controlling significance.

The repealer ordinance enabling plaintiff to obtain the desired use and occupancy was enacted in November 1972. From that date plaintiff was theoretically entitled to obtain the permit she desired. The present action was not commenced until July ...


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