On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1177-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo and Sapp-Peterson.
Plaintiffs Morton and Barbara Schneider, husband and wife, appeal from the March 17, 2006 order granting defendant Township of Dover (Township) reconsideration and vacating the court's January 31, 2006 order denying summary judgment and, in turn, granting summary judgment dismissing the remaining counts in plaintiffs' complaint. We affirm.
The complaint arose out of an investigation conducted at plaintiffs' home by the Township police on April 22, 2003, after the burglar alarm was activated. Police arrived at the scene and initially observed no one present at the home. However, in looking for burglars, they peered through the windows and saw suspected CDS residue and narcotics paraphernalia. Plaintiffs' son was later observed and arrested for narcotics offenses. Plaintiff Morton Schneider arrived at the scene later and was arrested and charged with disorderly persons' offenses, possession of marijuana under fifty grams, and unlawful possession of narcotics paraphernalia. These charges remain pending. According to plaintiffs, since the April 2003 incident, they have been subjected to continual harassment from Township police, including causing a portion of their property to be seized by the Township Tax Assessor's Office without notice to them.
On July 17, 2003, plaintiffs filed a Notice of Claim under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, regarding the April 22, 2003 incident. On April 19, 2004, plaintiffs filed their complaint against Dover Township, Ocean County, and John Does A through Z. The complaint alleged libel (Count One), slander (Count Two), defamation (Count Three), negligence (Count Four), gross negligence (Count Five), willful disregard (Count Six), negligent compliance with the law (Count Seven), vicarious liability (Count Eight), breach of contract (Count Nine), and 42 U.S.C. §1983 (Section 1983) claims (Count Ten) arising from the April 22, 2003. Ocean County was later dismissed from the case by order dated June 11, 2004, upon its motion, leaving the Township as the only named defendant in the case.
On August 10, 2004, defendant moved to dismiss the complaint, pursuant to Rule 4:6-2(e), for failure to state a claim upon which relief may be granted. By order dated November 8, 2004, the court denied the motion as to Counts Four (negligence), Five (gross negligence), Six (willful disregard), Seven (negligent compliance with the law) and Ten (violation of 42 U.S.C. § 1983) without prejudice, and granted the motion as to Counts One (libel), Two (slander), Three (defamation), Eight (vicarious liability) and Nine (breach of contract).*fn3 The order also directed plaintiffs to provide more specificity with regard to Count Ten. Defendant subsequently filed an answer and propounded interrogatories upon plaintiffs.
A year later, defendant moved for summary judgment. On January 10, 2006, prior to disposing of the motion, Judge Oles forwarded a letter to counsel in which he expressed "having a substantial amount of difficulty understanding the Plaintiff's case." He directed plaintiffs' counsel to Rule 4:46-2(b) and the requirement that genuinely disputed facts must be referenced by citation to the record through depositions or affidavits. Judge Oles also advised that he was unable to "discern" the nature of plaintiffs' claims brought pursuant to the TCA. As a result, he adjourned the motion and directed plaintiffs' counsel to "submit a detailed response to [his] letter." Plaintiffs' counsel submitted a supplemental response on January 17, 2006.
The motion was denied without prejudice, and accompanying the January 31, 2006 order was a letter in which Judge Oles set forth a statement of reasons:
I have received [plaintiffs' counsel's] letter of January 17, 2006 which includes additional documentations presented to the Court.
I must advise both attorneys that I am continuing to have difficulty with respect to the factual allegations involving this particular case.
I have reviewed the Statement of Facts that was attached to [defense counsel's] Brief. A substantial portion of the Statement of Facts merely is a recitation of what the allegations are in Plaintiff's Complaint. The balance of the Statement of Facts refers to police reports, search warrant affidavits and purported correspondence. There is no specific reference to any deposition taken of Morton Schneider or Barbara Schneider concerning their allegations.
With respect to [plaintiffs' counsel's] submissions to the Court, once again I am at [a] loss to understand the specifics of the Complaint. The Statement of Additional Facts or Counter-Statement that was presented to me does not, in fact, constitute facts. Again, they are mere allegations. There are no affidavits submitted to the Court and there is no reference to specific deposition testimony. Furthermore, I directed [plaintiffs' counsel] to specifically make reference to the New Jersey Tort Claims Act and indicate to me under what provision of the Act does he perceive there is liability. That has not been done. I am unable to set forth factual findings and correlate those facts to a legal conclusion. See, Greater Atlantic and Pacific Tea v. Checchio, 335 N.J. Super. 495 (App. Div. 2000).
Because of my observation, I am denying the Motion, without prejudice. See Hancock v. Bor. of Oaklyn, 347 N.J. Super. 350 (App. Div. 2002).
On February 14, 2006, defendant moved for reconsideration of the motion. Defendant essentially argued that plaintiffs' failure to satisfy the requirements set forth under Rule 4:46-2(b) was not a basis to deny summary judgment.
In a letter opinion dated March 17, 2006, the court granted reconsideration, vacated the January 31, 2006 order, and granted summary judgment. The court found that plaintiffs' §1983 claims were barred as "[p]laintiff has failed to establish a specific municipal policy that somehow affected the Plaintiff." Monell v. Dept of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed. 2d 611, 636 (1978). Additionally, the court concluded that plaintiffs' claim alleging false arrest presented no evidence as to who arrested Morton Schneider and that the express provisions of N.J.S.A. 59:5-4 precluded liability based upon the municipality's "failure to investigate or to provide security for the home." Wuethrich v. Delia, 155 N.J. Super. 324, 326 (App. Div.), certif. denied, 77 N.J. 486 (1978).
In considering plaintiffs' claim of negligent hiring and retention of law enforcement officers, the court recognized that in Denis v. City of Newark, 307 N.J. Super. 304 (1998), such a cause of action existed, but found that plaintiff failed to identify any officer who was negligently hired or retained. As to plaintiffs' claims of intentional misconduct on the part of law enforcement officers, the court concluded that the "municipality would not be liable for the employee's [intentional] acts" and that the plaintiffs' claims of gross negligence were not supported by facts from the record. Finally, as to plaintiffs' claim that defendant failed to follow its own regulation or state law, the court, ...