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Henschke v. Borough of Clayton

Decided: November 7, 1991.

FRANK HENSCHKE, PLAINTIFF-APPELLANT,
v.
BOROUGH OF CLAYTON AND CLAYTON POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.

Michels, O'Brien and Conley. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

Plaintiff appeals from an order granting summary judgment to defendants. We affirm.

In April 1984, plaintiff's residence at 702 North New Street, Clayton, New Jersey, was extensively damaged in a fire. As a result, plaintiff and his family moved out and plaintiff boarded up the property. At the time of the fire, the property was covered by a mortgage upon which there was a balance due of approximately $34,000. Since plaintiff had not made his mortgage payments for several months, the company holding the mortgage assigned it to the Department of Housing and Urban Development (HUD). Thereafter, representatives of HUD changed the locks and replaced the boards on the property.

On March 10, 1985, plaintiff learned of this and reported it to Patrolman Green of defendant police department. Officer Green accompanied plaintiff to the residence and noted that, although the property was boarded up and locked, the garage was unlocked. Plaintiff, his wife and the officer entered the residence and plaintiff claimed there were items missing. When they left, the officer secured the residence and turned the matter over to Sergeant Hansen, who spoke to plaintiff on March 12 at police headquarters.

Plaintiff told the sergeant that approximately $10,000 to $15,000 worth of "stuff" had been stolen from his house. The sergeant spoke with Mr. Beatty at the HUD office in Camden, who advised him that plaintiff had not made any mortgage payments since September 1983 and the property had been transferred to HUD. According to Mr. Beatty, he attempted to contact plaintiff unsuccessfully and the property had been boarded up by a contractor on behalf of HUD. The sergeant advised Mr. Beatty that plaintiff intended to sign complaints against the HUD office.*fn1 Plaintiff neither signed any complaints nor provided the police with a list of the property allegedly stolen. Plaintiff contends that the police department

failed to investigate, failed to take fingerprints,*fn2 and that the matter was "whitewashed." Plaintiff claimed that despite his urging the department failed to investigate the crime.

On March 29, 1988, plaintiff filed a complaint against the Borough of Clayton and its police department alleging that he suffered damages as a result of the police department's failure to investigate the alleged theft at his boarded-up vacant property. In another paragraph of the one-count complaint, plaintiff alleged that his civil rights were violated pursuant to 42 U.S.C.A. ยง 1983 et seq.

Defendants filed an answer admitting that plaintiff had reported the alleged theft to the police department, but denying the remaining allegations. Among the several separate defenses alleged was one that the action is barred under the New Jersey Tort Claims Act, N.J.S.A. 59:2-1 et seq., and another specifically asserting that plaintiff had failed to provide a notice of claim in accordance with N.J.S.A. 59:8-2.

On February 15, 1990, plaintiff, Sergeant Hauser, and Officer Green were deposed. Thereafter, defendants moved for summary judgment and specifically did not request oral argument. The motion was accompanied by a brief to which plaintiff responded, stating that the summary judgment was returnable August 31, 1990. On October 19, 1990, the motion judge granted defendant's motion for summary judgment and plaintiff appeals.

Apparently, the motion was granted on the papers since no oral argument had been requested. However, the motion judge failed to find the facts and state his conclusion in accordance with Rule 4:46-2 and Rule 1:7-4. Therefore, we have no explanation from the judge for his conclusion granting summary judgment. Ordinarily, in that circumstance, we would remand the matter to the trial judge with instructions to find

the facts and state his conclusion of law as required by the Rules. However, we conclude it is unnecessary to do that in this case because of the clarity of the ...


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