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Besser v. Hagedorn Psychiatric Hospital

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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