On appeal from the Superior Court, Law Division, Monmouth County.
O'Brien, Scalera and Keefe. The opinion of the court was delivered by O'Brien, J.A.D.
By leave granted, defendants appeal from the denial of their motion to dismiss the complaint for failure to state a claim upon which relief can be granted (R. 4:6-2(e)) and from the vacation of a previously entered protective order. We affirm.
Plaintiff P.A. is married to F.A. and is the mother and guardian ad litem of the infant plaintiffs, M.N., M.A. and C.A. In April 1989, three-year-old M.A. broke his leg. On March 9, 1990, a counselor from the New Jersey Division of Youth & Family Services (DYFS) came to P.A.'s home and informed her that an anonymous complaint had been filed with DYFS accusing P.A. of child abuse in connection with M.A.'s broken leg which occurred approximately one year earlier. On the same day, infant plaintiffs M.N. and C.A. were called from their school classrooms, examined by the school nurse, and interviewed by a DYFS counselor in the presence of an assistant principal. The next day, P.A. received a telephone call from the DYFS counselor informing P.A. that the counselor's superior had received a call from the person who had reported the alleged child abuse, stating that a mistake had been made and the person wished to withdraw the complaint. The "caller" was advised the interview had already taken place.
Defendants W.J.F., Jr. and S.F. are neighbors of the plaintiffs. In addition, W.J.F., Jr. is an attorney who formerly represented plaintiffs. He was also F.A.'s former restaurant business partner. Sometime in early 1989, F.A. and W.J.F., Jr. became involved in litigation arising from their business relationship. Although that lawsuit was subsequently settled, F.A. has filed other legal complaints against W.J.F., Jr., who, it is suggested, in turn has brought a foreclosure complaint against
F.A.'s present partner, who had been involved in the prior lawsuit.
Since plaintiff suspected that defendants, or one of them, made the call to DYFS alleging the child abuse, the present suit was instituted on May 18, 1990.*fn1 In their complaint plaintiffs allege that, although the original complaint to DYFS had been made anonymously, when the caller made the second call seeking to withdraw the complaint, he was required to identify himself and he identified himself as W.J.F., Jr. However, F.A. and P.A. have filed certifications denying that anyone from DYFS had provided them with the name of the person who made the complaint or the person who withdrew it. However, P.A. states that:
[O]n the basis of the language used in the DYFS Complaint and in view of the history of our relationship with Defendants [F.], both personally and in business matters, we believe that he is the person who made the Complaint to DYFS and subsequently withdrew it.
W.J.F., Jr. and S.F. filed an answer stating they were not required to respond to the allegations of several paragraphs of the complaint since they were protected by the confidentiality provision of N.J.S.A. 9:6-8.10a. In separate defenses they asserted the applicability of that statute as well as N.J.S.A. 9:6-8.13. Defendants moved for a protective order barring all discovery, based upon the alleged confidentiality and immunity provisions of those statutes. On August 3, 1990, Judge Mark A. Sullivan, Jr. entered a protective order pursuant to R. 4:10-3, providing that defendants
shall not be required to submit to depositions, to answer interrogatories or respond to Request[s] to Admit, or otherwise respond to discovery as to whether or not said defendants made a report to, contacted or participated in any investigation conducted by the Division of Youth and Family Services pursuant to N.J.S.A. 9:6-8.10.
As suggested by Judge Sullivan, defendants thereafter moved to dismiss the complaint for failure to state a claim upon which relief could be granted pursuant to R. 4:6-2(e). Plaintiffs filed a cross-motion to vacate the protective order. The matter was assigned to Judge Florence Peskoe who, by order entered October 26, 1990, denied defendants' motion to dismiss the complaint and granted plaintiffs' ...