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Vasquez v. Addiego

April 23, 2010

AMY E. VASQUEZ, PLAINTIFF-APPELLANT,
v.
DAWN ADDIEGO, AUBREY FENTON, SEAN KENNEDY, MICHAEL WARNER AND CHARLES LAMBIASE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-7102-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 15, 2009

Before Judges Skillman and Simonelli.

Plaintiff Amy E. Vasquez appeals from the January 9, 2009 Law Division order granting summary judgment to defendants and dismissing her complaint with prejudice. We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff was a Democratic candidate for Burlington County Freeholder in 2005. Defendants Dawn Addiego and Aubrey Fenton were plaintiff's opponents, and defendants Sean Kennedy, Michael Warner and Charles Lambiase were officials of the Burlington County Republican Committee.

Plaintiff claims that defendants made false and defamatory statements in television and print campaign advertisements that she did not pay property taxes in Burlington County and had a warrant issued against her for failing to pay New York State income taxes. Some of the print advertisements included a copy of a tax warrant docketed by the New York State Department of Taxation and Finance against plaintiff on February 25, 1998, for failure to pay State income taxes.

On February 8, 1999, the Department of Taxation issued a Notice to Vacate Tax Warrant and Release Lien (the Notice), which indicated that "due to an inadvertence, the warrant was prematurely issued and filed." The Notice vacated and canceled the warrant, which was attached to the Notice, released any lien against plaintiff's real or personal property, and directed the Clerk of New York to "mark the official records accordingly."

On November 4, 2005, plaintiff filed a pro se complaint*fn1 against Addiego, Fenton, Kennedy and "John Does," alleging that they defamed her by publishing and distributing the false statements, and by negligently, carelessly and recklessly failing to ascertain that the warrant "was a clerical error and without factual support." Plaintiff also alleged that defendants knowingly or recklessly disregarded the truth about the warrant having been vacated.

Defendants filed a Rule 4:6-2(e) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. On February 17, 2006, Judge Colalillo granted the motion and dismissed the complaint without prejudice, finding that plaintiff, a public figure, made "bare conclusary assertions... that defendants knew or reasonably should have known that the statement was false with no other factual reference to lend support to the contention[,]" and failed to satisfy the "actual malice" standard to sustain a defamation claim.

Plaintiff filed a second pro se complaint on April 4, 2006, adding Warner and Lambiase as defendants, asserting more detailed allegations against each defendant, and raising a new allegation that defendants altered or negligently, carelessly and recklessly authorized the alteration of the Notice in order to falsely represent her to the public as a tax cheat who had a valid warrant issued against her for failing to pay State income taxes.

Defendants filed a Rule 4:6-2(e) motion to dismiss the second complaint. June 23, 2006, Judge Little granted the motion and dismissed the complaint without prejudice, finding that plaintiff failed to assert sufficient allegations of actual malice.

Plaintiff filed a third pro se complaint on October 19, 2006, asserting allegations similar to those in the second complaint and raising a new allegation that defendants received and reviewed the Notice with the attached warrant, and thus understood that plaintiff was not delinquent in paying taxes but nonetheless "published the erroneous warrant[.]" Plaintiff also alleged that defendants negligently, carelessly and recklessly disregarded that the Notice indicated that the warrant was "an error and without factual support."

Defendants filed a Rule 4:6-2(e) motion to dismiss the third complaint. Judge Kassel denied the motion, finding that because the Notice indicated that the warrant was attached, plaintiff had established a sufficient factual basis supporting her claim that defendants knew ...


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