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Rooney v. Carlomagno

January 22, 2010

JOHN E. ROONEY, PLAINTIFF-RESPONDENT,
v.
ARTHUR CARLOMAGNO, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
BOROUGH OF NORTHVALE, THIRD-PARTY DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1258-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2009

Before Judges Grall, Messano and LeWinn.

Defendant Arthur Carlomagno appeals from the dismissal of his counterclaim against plaintiff John E. Rooney, and his third-party complaint against the Borough of Northvale (Northvale). Having considered the arguments raised in light of the record and applicable legal standards, we affirm.

Defendant is the owner of a lawnmower repair business in Northvale. In October and November, 2006, he had two verbal disputes with plaintiff, who, at the time, was the mayor of Northvale and a member of the State Assembly. These disputes centered on plaintiff's perceived condition of defendant's business property, and a campaign sign supporting plaintiff's opponent that defendant maintained on another property he owned in town.

After the first incident and shortly before Election Day, defendant verbally registered a complaint with the Northvale Police Department, contending that the municipal fire inspector threatened him and his mother regarding the condition of his property. No summons, however, was issued by the fire inspector. Defendant continued to maintain the political sign on his property without incident at least through Election Day.

On November 4, 2006, defendant filed a complaint for harassment, N.J.S.A. 2C:33-4, against plaintiff. Plaintiff's attorney directed a letter to defendant, characterizing the complaint as "abusive process and malicious prosecution." On February 2, 2007, the Northvale municipal court judge dismissed the harassment complaint after a hearing, concluding it lacked probable cause.

On February 20, 2007, plaintiff filed a complaint against defendant alleging intentional infliction of mental and emotional distress, malicious prosecution, and defamation. Defendant answered and counterclaimed, alleging harassment, defamation, intentional infliction of emotional distress, malicious prosecution, and violations of the Law Against Discrimination (the LAD) and the First, Fourth, and Fourteenth Amendments of the United States Constitution, as well as a claim on behalf of his mother. Defendant sought ten million dollars in damages. Defendant ultimately filed an amended counterclaim on February 19, 2008, and a third-party complaint against Northvale alleging, for the first time, that the municipality failed to respond to a request he made on January 10, 2007, pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.

A non-jury trial was conducted on July 28-30, 2008 before Judge Robert L. Polifroni. After consideration of plaintiff's motions in limine, the judge dismissed defendant's claims for intentional infliction of emotional distress, violation of the LAD, harassment, and the claim on behalf of his mother.*fn1 The judge also dismissed defendant's OPRA claim on motion.

After considering the testimony from both sides, on August 25, 2008, Judge Polifroni rendered his decision orally on the record, dismissing plaintiff's complaint and the balance of defendant's counterclaim. On September 8, 2008, Judge Polifroni entered an order formalizing his decision. After denial of his motion for reconsideration, defendant filed this appeal.*fn2

Defendant's pro se brief is difficult to decipher. Nonetheless, we are convinced that all of the arguments he now raises on appeal are without sufficient merit to warrant extensive discussion in this opinion. See R. 2:11-3(e)(1)(E). We add these brief comments.

Defendant argues that the judge erred in dismissing his third-party complaint under OPRA as time-barred. Defendant's OPRA request was denied on January 10, 2007; his third-party complaint challenging the denial was not filed until thirteen months later. A requester challenging the denial of an OPRA request must do so within forty-five days of the decision. Mason v. City of Hoboken, 196 N.J. 51, 69-70 (2008). Defendant has no independent claim "for an action in lieu of mandamus."

See id. at 69 (noting that OPRA claims are subsumed within actions in lieu of prerogative writs). Judge Polifroni properly dismissed ...


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