On appeal from Superior Court, Law Division, Bergen County.
Deighan and Landau. The opinion of the court delivered by Landau, J.A.D.
Suzanne M. Bauer sued the Borough of Cliffside Park (Borough) the Police Department of Cliffside Park (Department) and Cliffside Park Police Officer Jack Mattessich (Mattessich) asserting claims for malicious prosecution and false arrest. Following grant of summary judgment to all defendants, Bauer appealed.
The claims arise out of Bauer's arrest without warrant in her apartment and unsuccessful prosecution for operating a motor vehicle under the influence of intoxicating liquor (N.J.S.A. 39:4-50) (hereinafter DUI) and refusal to take a breathalyzer test (N.J.S.A. 39:4-50.2, 50.4a).*fn1
Bauer was arrested on September 25, 1985. Following trial before the municipal judge on December 5, 1985, she was found not guilty on the DUI charge and guilty on the breathalyzer refusal charge. On appeal to the Law Division, the breathalyzer conviction was reversed because the trial judge deemed the underlying arrest invalid, absent a warrant, in that the offense did not take place in the presence of the arresting officer. The trial judge relied upon N.J.S.A. 39:5-25 which states in pertinent part:
I. INDIVIDUAL CITIZEN PLAINTIFF MUST BE PERMITTED TO BRING TO TRIERS OF FACT A CAUSE OF ACTION FOR MALICIOUS PROSECUTION AND FALSE IMPRISONMENT INSTITUTED AS A RESPONSE TO INVALID ARREST BY POLICE SUBSEQUENTLY STRUCK DOWN BY COURT.
II. PLAINTIFF'S MUNICIPAL COURT CONVICTION SUBSEQUENTLY REVERSED ON APPEAL IS NOT PROBATIVE OF PROBABLE CAUSE BUT UNDER LIND MERELY RAISES A REBUTTABLE PRESUMPTION WHICH IN THIS CASE CANNOT BE SUSTAINED DUE TO INVALIDITY OF UNDERLYING ARREST.
III. SUMMARY JUDGEMENT SHOULD NOT HAVE BEEN GRANTED BECAUSE SUBSTANTIAL QUESTIONS OF FACT REMAIN.
Joseph Perone, a resident of a Cliffside Park apartment building called the Cliffside Park Police Department after midnight on September 25, 1985, to report that someone struck his parked truck while attempting to park a car. Perone had heard the noise of a crash as he sat in his apartment watching television. He went to the window and saw the car which apparently struck his truck. Perone ran immediately to the street and tried to make that car stop, but the driver backed off and drove away as he "banged on the hood . . ." Perone testified,
Then I went back into my apartment and called the police saying I wanted to report an accident. Then I went back out into the street, waited for the police to arrive. Meanwhile the person, she came walking up towards the apartment building. I said to her, 'do you know, you just hit my car and drove away.' And I had like there was no response. She just stood there. I said, again I question, I said, 'you hit my car and drove away, you know, what are you going to do about this?' And to say I'm not going to do anything about it, then she just walked into the apartment building. Then the police arrived and I explained to them what had happened and they went in and, you know, and asked her to come out.
Perone reported that Bauer was the driver of the car, that he recognized her and knew that she lived in his apartment building. After backing out of ...