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Demosthennes v. Township of Irvington

July 17, 2007

GARRY DEMOSTHENNES AND ISLANNE DEMOSTHENNES, H/W, AND MARCKINGSON PIERRE AND MARIE PIERRE, H/W, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF IRVINGTON, IRVINGTON POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS, AND BRANDON BENTON, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, L-7915-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 8, 2007

Before Judges Kestin and Payne.

Plaintiffs, Garry Demosthennes and Marckingson Pierre, together with their wives, Islanne Demosthennes and Marie Pierre, appeal from an order of summary judgment entered by Judge Simonelli dismissing their action against defendants, the Township Irvington and the Irvington Police Department, premised on allegations that the police failed to promptly respond to 9-1-1 calls of an attack on the two men, as the result of which Demosthennes' finger was severed and Pierre was cut with a box cutter in the face, requiring approximately 50 stitches.

On appeal, plaintiffs claim that Judge Simonelli erred in finding that the defendants were immune from liability pursuant to N.J.S.A. 59:5-4, a provision of the Tort Claims Act that states:

Neither a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.

Plaintiffs also contest the judge's determination to dismiss their claims of deprivation of civil rights pursuant to 42 U.S.C.A. § 1993. We affirm.

The facts as established by the record are as follows: On October 7, 2001, Garry Demosthennes's motor vehicle was stolen in Union Township. The police were notified of the theft. On the following day, Demosthennes observed his car being driven on Nesbitt Terrace in Irvington. He called 9-1-1 to report that fact, and after giving information that identified himself and the car, Demosthennes was informed that he would be contacted if the car were located. After his police report, Demosthennes walked to the residence of his friend, Marckingson Pierre. The two then set out in Pierre's car to attempt to locate the stolen car.

At some point thereafter, the two men observed Demosthennes' car, parked near a local store. When the supposed thief, defendant Brandon Benton, exited the store and attempted to enter the stolen car, he was accosted by Demosthennes and Pierre. A confrontation ensued. Benton, wielding a box cutter, slashed Pierre's face and severed Demosthennes's finger. The incident ended following the arrival of an off-duty sheriff's officer, who came to the men's aid, and the subsequent arrival of the police, who arrested Benton and summoned medical assistance.

Plaintiffs' claims are based upon the factual position that the Irvington Police failed to respond to multiple 9-1-1 calls made during the affray, until a spectator was instructed by the sheriff's officer to tell the 9-1-1 operator that an officer required assistance. However, plaintiffs' evidence does not support this claim.

The only contemporaneous evidence of the events, themselves, consists of a transcript of a recording of the 9-1-1 calls received by Irvington police dispatcher, Officer Reynolds. The transcript appears to be in chronological order, but does not set forth the time of receipt or duration of any of the calls. It reveals Demosthennes's report of his sighting of his stolen car on the morning of October 8. It then discloses an additional afternoon call, in which both Demosthennes and Pierre participated, during which the men reported that they had blocked-in the stolen vehicle, and the dispatcher attempted to ascertain its location. We repeat that portion of the communication as transcribed.

Dispatcher: Irvington Police, Officer Reynolds

GD: Yes, good afternoon. I'm called this morning. . somebody stolen my car, and I just ride by with my friend . ...


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