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Besser v. Hagedorn Psychiatric Hospital

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 21, 2007

NEAL BESSER, PLAINTIFF-APPELLANT,
v.
HAGEDORN PSYCHIATRIC HOSPITAL, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, L-100-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 5, 2007

Before Judges Weissbard and Gilroy.

Plaintiff Neal Besser appeals from an order of June 12, 2006, dismissing his complaint against Hagedorn Psychiatric Hospital, and an August 30, 2006 order denying his motion for reconsideration.

Plaintiff, a patient at defendant hospital, filed his complaint on February 5, 2006, seeking an order that would prohibit smoking in all outdoor areas of the hospital property.

He also sought compensatory and punitive damages. Smoking is prohibited inside the hospital and patients who smoke are permitted to smoke outside three times a day. Plaintiff asserted, however, that even outdoor smoking posed a serious health risk to the patients and staff at the hospital.

Shortly after filing his complaint, plaintiff sought emergent relief by order to show cause. His application was denied on April 13, 2006, and plaintiff sought reconsideration of that denial. In response, defendant moved to dismiss the complaint for failure to state a claim upon which relief could be granted R. 4:6-2(e), and for failure to comply with the notice provisions of the Tort Clams Act (TCA), N.J.S.A. 59:8-1 to -11.

On June 12, 2006, Judge Buchsbaum granted defendant's motion to dismiss on both of the asserted grounds. He also denied plaintiff's motion for reconsideration of the denial of plaintiff's application for a restraining order. Thereafter, plaintiff filed a Notice of Tort Claim concerning the matters set forth in his complaint. Plaintiff then moved for reconsideration of the June 12, 2006 dismissal, which was denied.

In his pro se brief on appeal, plaintiff presents the following eight arguments:

POINT I: THE JUDGE'S DENIAL OF MY MOTION TO RECONSIDER HIS DECISION OF 6/12/06 WAS WRONG.

POINT II: THE JUDGE'S DENIAL OF MY MOTION TO RECONSIDER MOTION FOR A RESTRAINING ORDER AGAINST HAGEDORN HOSPITAL TO IMMEDIATELY REDUCE AND ELIMINATE SMOKING ON 6/12/06 WAS WRONG, AND FAILED TO CONSIDER OR TO APPRECIATE THE SIGNIFICANCE OF PROBATIVE, COMPETENT EVIDENCE AS WELL AS NEW INFORMATION IN SUPPORT OF THE ORIGINAL MOTION.

POINT III: THE JUDGE'S DISMISSAL OF MY COMPLAINT OF 6/12/06 UPON THE STATE'S MOTION TO DISMISS WAS WRONG, AS WELL AS IRRATIONAL AND INCORRECT; YOU DIDN'T HAVE TO GLEAN FROM AN OBSCURE REFERENCE OR INFERENCE THAT I HAD AN IMPORTANT AND SUBSTANTIAL CLAIM AND THEREFORE A LEGITIMATE CAUSE OF ACTION UPON WHICH RELIEF COULD CERTAINLY HAVE BEEN GRANTED.

POINT IV: THE JUDGE'S DISMISSAL OF MY COMPLAINT UPON THE STATE'S MOTION WAS PALPABLY IRRATIONAL FOR NOT GRANTING MY REQUEST FOR A POSTPONEMENT LONG ENOUGH FOR HIM TO HAVE BEEN IN RECEIPT OF MY 26-PAGE REPLY BRIEF, IN WHICH I REPUDIATED THE STATE'S SIMPLISTIC ARGUMENT THAT THERE WAS SUPPOSEDLY NO LAWFUL BASIS FOR THE RELIEF I WAS SEEKING WHICH WAS TO PROHIBIT SMOKING.

POINT V: I STATED IN MY REPLY BRIEF, IN RESPONSE TO THE STATE'S MOTION TO DISMISS, THAT MY CASE SHOULD NOT BE DISMISSED, BUT BE ALLOWED TO PROCEED IN CONFORMITY WITH MY RIGHTS OF DUE PROCESS, AND SO AS TO GIVE ME THE OPPORTUNITY OF PROVING MY CASE AGAINST THE HOSPITAL FOR A PROHIBITION OF SMOKING WITH THE BENEFIT OF SUPPORTIVE TESTIMONY FROM NUMEROUS WITNESSES I COULD HAVE PROVIDED.

POINT VI: I CORRECTED DEFICIENCIES IN APPEASEMENT OF THE STATE'S AND COURT'S CONCERNS . . . BY WHICH THE JUDGE COULD OTHERWISE HAVE BEEN MORE DISPOSED TOWARDS GRANTING MY MOTION TO RECONSIDER HIS DECISION OF 6/12/06.

POINT VII: I SHOULD HAVE BEEN ENTITLED TO A CONTINUANCE LONG ENOUGH FOR THE PURPOSE TO SUBMIT AFFIDAVITS OR DEPOSITIONS AS WELL AS TO PRESENT THE TESTIMONY OF WITNESSES, AND ALSO PENDING THE RESULTS OF A HEALTH INSPECTION.

POINT VIII: I RESPECTFULLY REQUEST THE COURT'S REVERSAL OF THE TRIAL COURT'S DECISION, SO AS TO ALLOW MY CASE TO BE REINSTATED FOR THE PURPOSE OF GIVING ME THE OPPORTUNITY I BELIEVE I'M ENTITLED TO ACCORDING TO MY RIGHTS OF DUE PROCESS, OF ATTEMPTING TO PROVE MY CASE AT A FAIR HEARING OR TRIAL, AND TO OBTAIN THE RELIEF I AM SEEKING.

We have reviewed plaintiff's contentions in light of the record and applicable law, and find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons well and clearly stated by Judge Buchsbaum in his June 12, 2006, Memorandum of Decision and endorsed on the August 30, 2006 order denying reconsideration.

Affirmed.

20071121

© 1992-2007 VersusLaw Inc.



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