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Avagnano-Pirozzi v. Chinchar

August 12, 2010

CAROLINE AVAGNANO-PIROZZI, N/K/A CAROLINE GUARINO, PLAINTIFF-APPELLANT,
v.
BOROUGH OF PARAMUS POLICE OFFICER CHERYL CHINCHAR, A/K/A CHERYL ANN AVAGNANO, AND BOROUGH OF PARAMUS CHIEF OF POLICE FREDERICK J. CORRUBIA, DEFENDANTS-RESPONDENTS, AND BOROUGH OF PARAMUS POLICE DEPARTMENT AND BOROUGH OF PARAMUS, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8649-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 20, 2010

Before Judges Fuentes, Gilroy and Simonelli.

Plaintiff Caroline Avagnano-Pirozzi, now known as Caroline Guarino, appeals from the order of the Law Division dismissing her cause of action against defendants Paramus Police Officer Cheryl Chinchar, also known as Cheryl Avagnano, and Paramus Chief of Police Frederick Corrubia. Plaintiff's complaint against these defendants alleged violations of her constitutional rights, intentional infliction of emotional distress, and fraudulent concealment. We affirm the court's decision dismissing plaintiff's claims against Corrubia. We reverse, however, the decision dismissing the claims against Chinchar that are connected with the propriety of the stop of plaintiff's car.

I.

We make the following comments as a means of providing context to the facts we are about to recite. The record suggests that Chinchar and plaintiff were romantically involved with the same man, Paramus Police Officer Dean Avagnano. Plaintiff was married to Avagnano; Chinchar was also employed as a police officer with the Paramus Police Department and therefore had regular contact with Avagnano.

The incident that gave rise to this lawsuit occurred on October 15, 2002. On that day, Chinchar, while on a break from her police duty, stopped at her residence on Falmouth Avenue in Paramus to check on her son. While at home, Chinchar claims that she observed plaintiff drive down Falmouth Avenue, make an illegal u-turn, and speed away. Plaintiff contends that she was traveling on Falmouth Avenue because she was taking a shortcut to Bergen Community College, where she attended nursing school. She made the u-turn as a means of getting back on the right road after taking an incorrect turn.

Chinchar pulled over plaintiff's vehicle for suspected speeding and stalking. What transpired after this fateful decision can best be characterized as an emotionally charged encounter between these two women. Chinchar accused plaintiff of stalking her and her son. Chinchar also told plaintiff that she had "no business" being in the area where Chinchar resided.*fn1 Chinchar questioned plaintiff about her activities and asked to see her driver's license and vehicle registration.

The conversation quickly moved away from plaintiff's ostensible traffic violation and turned to personal matters between the two women and Avagnano, plaintiff's then-estranged husband. It appears that plaintiff suspected that Chinchar was having an affair with Avagnano; Chinchar, in turn, believed that plaintiff was harassing her because of the alleged affair.

As both the DVD and transcript show, Chinchar's demeanor quickly deteriorated. She launched into an emotional tirade, during which she accused plaintiff of calling her cell phone for the purpose of harassing her. Chinchar screamed these accusations at plaintiff, using profanity to accentuate her position. Plaintiff reported the incident to the Paramus Police Department later that evening. On October 25, 2002, the Paramus Police Department formally charged Chinchar with "Conduct Unbecoming An Officer"; she pled guilty and received a ninety-day suspension.

Plaintiff claimed that the incident left her emotionally and psychologically battered. She received psychological treatment from November 18, 2002, until June 25, 2005. On January 31, 2007, plaintiff's psychological expert provided a report in which he opined that she suffered from a moderate to severe case of post-traumatic stress disorder that he attributed to plaintiff's encounter with Chinchar.*fn2

II.

We first address the trial court's decision to dismiss plaintiff's claims against Chinchar. Plaintiff filed a 42 U.S.C.A. ยง 1983 suit against Chinchar, asserting that Chinchar violated her Fourth Amendment right to be free from unlawful seizures when she stopped plaintiff's vehicle without justification. As a threshold issue, Chinchar concedes that she was acting under the color of state law when she stopped plaintiff's car, thus satisfying the ...


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