On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. DC-2169-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Wefing and Grall.
Plaintiff Michael Lamont Blacknall filed a complaint in the Special Civil Part of the Law Division seeking judgment in the amount of $7500 against defendant Michael Simonetti, an officer of the Freehold Township Police Department, and defendant Branning Towing (Branning). The complaint includes two claims against Simonetti - that he "unlawfully seized [his] car" and that "[a]fter seizing [the] car he turned it over to defendant Branning without inventorying the contents of [his] car[,] resulting in the theft of [his] personal effects." It includes one claim against Branning - that the company "failed to secure and protect the contents of [his] car[,] which led to the theft of" his personal property - a laptop computer, a "DVD R/RW/RC Drive," a "Wi-Fi Network router/hub," three "wireless network cards," two "Pentium4 cpu's," a thirty-watt "power supply, and software."
Plaintiff appeals from an order granting defendants' motion for summary judgment and dismissing his complaint. We reverse and remand for further proceedings.
The following is a summary of the facts disclosed in the certifications and documents submitted in support of and opposition to the motions. Shortly after 10:00 a.m. on May 26, 2007, Officer Simonetti investigated a citizen complaint about the behavior of a man in a public park in Freehold Township. When Simonetti arrived, he found plaintiff in a state of partial undress and attempting to cover himself with a blanket. A glass pipe and thin piece of metal were on the ground near plaintiff's feet. Plaintiff acknowledged that they belonged to him. He was arrested and charged with luring, possession of a controlled dangerous substance, possession of drug paraphernalia, lewdness and harassment.
At the time of his arrest, plaintiff's car was legally parked in a lot in the public park and it was locked. Plaintiff, who lives a few blocks from the park and had his mobile phone with him, asked for permission to call a member of his family to arrange for one of them to retrieve his car; he also asked Simonetti to have dispatch call his home if plaintiff could not make the call himself. Although parking in this public area is permissible before dark, Simonetti denied both requests and, at 10:49 a.m., arranged for the car to be towed by Branning. In support of his motion for summary judgment, Simonetti certified that his actions in impounding the car were "[i]n accordance with local police procedures." He did not provide any additional evidence about the "procedures."
Simonetti filed a report explaining the seizure. "The vehicle was impounded due to no license[d] driver on the scene able to take possession of the vehicle and the vehicle being parked on state property." Although plaintiff was the registered owner and Simonetti was arresting him, he specified that plaintiff's car could be "released to the registered owner."
According to Kim Branning, plaintiff's car was towed to Branning's storage facility on May 26, 2007. While on Branning's lot, plaintiff's car was locked at all times and the keys were locked in Branning's office. Ms. Branning also stated that on October 3, 2007, plaintiff's father, "upon the authorization of his son," took plaintiff's personal belongings from the car and surrendered its title. Plaintiff did not dispute that his father had surrendered the title to plaintiff's car and retrieved his personal belongings from his car.*fn1
By letter dated October 29, 2007, Branning advised plaintiff that his car was towed to its storage facility on May 26, 2007 and still in its possession. The letter also warned plaintiff that it was illegal for him to abandon a vehicle and that he was being assessed a storage fee at the rate of $29 per day as of May 26, 2007.
Plaintiff was incarcerated when defendants filed their motions for summary judgment. Prior to the hearing on those motions, which were conducted on October 23, 2008, plaintiff wrote to the judge requesting an extension of time to file additional papers in opposition, an opportunity "to reply orally at the time the motion is heard," and a certification opposing defendants' motions although he did not have access to supporting materials that were at the county jail.*fn2
Cf. R. 6:4-7(a) (requiring submission to "the clerk's office"). Nothing in the record provided to us on appeal indicates that the judge addressed the requests prior to the October 23 hearing, but the transcript of the October 23, 2008 proceeding demonstrates that plaintiff was not offered an opportunity to testify or present witnesses.*fn3
Review of an order entered on a motion for summary judgment is de novo; this court must apply the same standard as the trial judge. See Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (applying the Brill standard to review a grant of summary judgment). The question is whether the factual materials presented on the motion "show that there is no genuine issue as ...