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Young v. Sebring Associates/Excelsior II

July 25, 2008

BRYANT YOUNG AND PAMELA PERKINS, PLAINTIFFS-APPELLANTS,
v.
SEBRING ASSOCIATES/THE EXCELSIOR II, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3259-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 15, 2008

Before Judges Parker and Gilroy.

Plaintiffs Bryant Young and Pamela Perkins appeal from the August 29, 2007 order that dismissed their complaint against defendant Sebring Associates/The Excelsior II, "for failure to state a claim upon which relief can be granted." R. 4:6-2(e). We affirm.

This is the third complaint filed jointly or individually by plaintiffs, arising out of an incident that occurred on May 3, 2002.*fn1 The facts alleged by plaintiffs in all three actions are, for all practical purposes, identical. The relevant facts, giving rise to plaintiffs' claims as gleaned from the present complaint, are as follows.

On May 3, 2002, the relationship of plaintiffs and defendant was that of tenant and landlord, respectively. Plaintiffs resided in Apartment 5E of an apartment building located in Hackensack (the Building), owned and/or managed by defendant. The Building is served by a concierge who, according to management's policy, is required to notify all tenants on their visitors entering the Building.

At approximately 9:30 p.m., approximately twenty plain clothed police officers entered the Building and proceeded to the concierge's desk. The police officers showed the concierge a picture of an individual they identified as Kevin Saxon, inquiring whether he was the "guy in Apartment 5E?" The concierge informed the police that Perkins resided in that apartment, after which one of the police officers yelled out "That's him," prompting the officers to run upstairs to plaintiffs' apartment, where Perkins was home alone. On hearing a knock on the apartment door, Perkins looked through its peephole and observed an elderly woman who asked to speak to her. Because Perkins had not received a telephone call from the concierge announcing a visitor, she assumed that the woman was a neighbor who may have been in distress.

On opening the door, the police overpowered Perkins, rushed in and arrested her. On Young's arrival a short time thereafter, he was arrested on a New York warrant. Following their arrests, Young and Perkins remained incarcerated in the Bergen County Jail for seven and ten days, respectively, before posting bail.

Plaintiffs' complaint alleges the following causes of action: 1) violation of their Fourth Amendment rights by the concierge granting the police access to their apartment and allowing the police to make warrantless arrests of plaintiffs (Count One); 2) violation of the covenant of quiet enjoyment by not announcing the police to Perkins when they entered the Building (Count Two); 3) violation of plaintiffs' rights of privacy by allowing the police into the Building (Count Three); 4) criminal trespass by allowing the police to trespass into plaintiffs' apartment (Count Four); 5) defamation and loss of quality of life (Count Five); 6) personal injury to Perkins (Count Six); and 7) economic damages of Perkins caused by loss of employment while she was unlawfully held in the Bergen County Jail (Count Seven).

On April 29, 2004, plaintiffs filed their first action in the United States District Court for the District of New Jersey against defendant and "Anthony/Scott Palmeri," defendant's owner, alleging violations of plaintiffs' civil rights, including a violation of their Fourth Amendment rights. On March 17, 2005, the District Court dismissed all Federal claims, determining that plaintiffs had failed to state a cause of action under 42 U.S.C.A. § 1983. However, the court declined to exercise supplemental jurisdiction over the remaining State claims and tolled the relevant limitation periods for those claims for forty-five days, to permit plaintiffs to re-file those claims in State court. On February 13, 2006, the Third Circuit Court of Appeals affirmed. Perkins v. Sebring Assocs. The Excelsior II, 169 Fed. Appx. 686 (3d Cir. 2006). On October 2, 2006, the Supreme Court denied certiorari. Perkins v. Sebring Assocs./The Excelsior II, ____ U.S. ____, 127 S.Ct. 310, 166 L.Ed. 2d 156 (2006).

Also, on April 29, 2004, plaintiff Young filed a complaint against the City of Hackensack and its police officers under Civil Action No. 04-CV-2011, alleging violation of his civil rights under the Constitutions of the United States and New Jersey, including a violation of the Fourth Amendment, based on assertions of false arrest and false imprisonment. On August 11, 2005, the District Court granted the defendants' motion for summary judgment, determining in part that "the uncontested evidence supports defendants' claim that the document is a genuine arrest warrant and that it provided probable cause for plaintiff's arrest. Therefore, summary judgment is granted in favor of defendants as to plaintiff's Fourth Amendment claim." Young v. City of Hackensack, 2005 W.L. 1924327 (D.N.J. 2005). On April 28, 2006, the Third Circuit of Appeals affirmed. Young v. City of Hackensack, 178 Fed. Appx. 169 (3d Cir. 2006).

On April 23, 2007, plaintiffs filed the present complaint.

Because the complaint alleged violations of plaintiffs' Fourth Amendment rights under the Federal Constitution, defendant removed the matter to the District Court. On defendant's motion to dismiss for failure to state a claim upon which relief could be granted, the District Court dismissed the Federal claims, noting that plaintiffs' claims of a violation of the Fourth Amendment had already been rejected by the court and affirmed by the Court of Appeals. Thus, the court dismissed the Fourth Amendment claims, together with any other constitutional claims asserted against any non-state actors, again declining to exercise supplemental jurisdiction over State law claims, and remanding the ...


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