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Senatore v. Borough of Westville

May 6, 2009

JOHN P. SENATORE, PLAINTIFF-APPELLANT,
v.
BOROUGH OF WESTVILLE AND STATE OF NEW JERSEY, DEPARTMENT OF THE TREASURY, DEFENDANT-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1500-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2009

Before Judges Reisner and Sapp-Peterson.

Plaintiff, John P. Senatore, is a former police officer with defendant, the Borough of Westville (Borough), who appeals from two trial court orders. The first order, dated April 12, 2006, granted summary judgment dismissing his complaint against Westville, while the second order, dated June 6, 2008, granted summary judgment dismissing his complaint against the State of New Jersey, Department of Treasury (State). We affirm.

Plaintiff was employed as a Borough police officer from 1970 to 1975. During that time, disciplinary charges were filed against him, which resulted in a six-month suspension from the force. In February 1976, he applied for an accidental disability retirement with the Division of Pensions (Division). The Board of Trustees, Police and Firemen's Retirement System of New Jersey (Board), considered his application but initially "tabled" any decision on the application because it required additional information. Specifically, the Board "requested of Mr. Senatore a history of his back problems, especially one suffered in another employ." It also requested:

We ask of the Borough a listing of the medical absences recorded upon the Police record and a clarification as to whether the witness, Doris Mae Holloway, Police Dispatcher, actually saw the fall of June 24, 1975 or heard the noise and observed the victim after the fall. We would appreciate your assistance in this most difficult determination.

In a letter dated June 22, 1976, the Division notified plaintiff that the Board had rejected his application because "[t]he Board could not recognize that an accident in the line of duty was the cause of a total and permanent disability." Plaintiff appealed the Board's determination and the matter proceeded to an administrative hearing, where a hearing officer upheld the Board's decision and recommended that plaintiff's application be denied. In a letter dated May 17, 1977, plaintiff was notified of the Board's final decision and of his right to appeal to the Appellate Division within forty-five days of the letter. Plaintiff did not exercise his appeal rights.

At the same time plaintiff sought an accidental disability retirement, he also applied for an ordinary disability retirement. The June 22 letter rejecting his accidental disability retirement application also advised plaintiff that no action would be taken on his ordinary disability retirement application until "it can be determined whether you have established the 5 year minimum credit for such benefit." Because of the six-month suspension, however, plaintiff did not satisfy the requisite five-year minimum credit period for an ordinary disability pension.

Four years later, through his attorney, plaintiff requested a supplemental rehearing on his accidental disability retirement application based upon medical records in the possession of the Borough that Senatore claimed were not provided to the Board at the time of the original hearing, "medical information which would suggest that only the injury sustained in June and subsequently in January of the following year was the cause of [plaintiff's] disability." In a letter to plaintiff's counsel dated April 28, 1982, the Board declined to re-open his accidental disability application. The Board advised:

The reason for the Board's determination is that Mr. Senatore had a full evident[ia]ry hearing on October 1, 1976 in which he had the opportunity to present any and all medical evidence to substantiate his disability application. Mr. Senatore, who was represented by counsel, did not present at this hearing any live medical testimony, although he did bring in substantial documentation of his medical condition. Further, Mr. Senatore was given the opportunity at that hearing to depose a Dr. Puff, but he did not avail himself of this opportunity.

You argue in your letter of November 6, [1981] that there is new medical evidence, a medical report from S. Thomas Camp, M.D., which would alter the result of the hearing and was not available to Mr. Senatore in March 1977. The Board disagrees with this assertion. It sees no reason why the introduction on [sic] one more medical record would alter the result in this case. Mr. Senatore was given the opportunity to present live medical evidence at the [1976] hearing. He did not avail himself of this opportunity. One more report is not a sufficient reason to reopen this matter.

The Board further holds that the failure of Mr. Senatore to appeal the May 17, 1977 final decision of this Board terminates this matter. For this reason, the Board will not exercise its discretion to reopen this matter.

If you disagree with this determination, further recourse would be to the Appel[l]ate Division of the Superior Court of the State of New Jersey. This appeal must ...


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