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Edward Stoney v. Joseph P. Mcaleer and Aberdeen Township

December 21, 2010

EDWARD STONEY, PLAINTIFF-APPELLANT,
v.
JOSEPH P. MCALEER AND ABERDEEN TOWNSHIP, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, No. L-811-07.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 29, 2010

Decided Before Judges Wefing, Payne and Baxter.*fn1

The opinion of the court was delivered by WEFING, P.J.A.D.

In separate orders, the trial court granted summary judgment to defendants Joseph P. McAleer ("McAleer") and Aberdeen Township ("the Township"), finding that plaintiff's complaint was barred by the statute of limitations. The trial court also denied plaintiff's subsequent motion for reconsideration with respect to McAleer. Plaintiff has appealed from these orders. After reviewing the record in light of the contentions advanced on appeal, we affirm in part, reverse in part, and remand for further proceedings.

Both plaintiff and his wife have been declared disabled due to physical infirmities, and both have been active for many years in the field of equal rights for the disabled. At plaintiff's deposition in this matter, he named ten municipalities, including the Township, that he had sued, alleging a failure to comply with various provisions of the Americans with Disabilities Act of 1990 ("ADA"). 42 U.S.C.A. §§ 12101 to 12213. Not all of plaintiff's disputes with the Township have involved issues of access for the disabled. He has also been involved in litigation with the Township with regard to the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, as well as a dispute with the Township about his posting a political flyer on a telephone pole. Prior to the incidents underlying this litigation, he had been involved in four or five prior suits against the Township.

During the course of his involvement in public issues, plaintiff met and became friendly with McAleer, who was also active in public matters. In 2004, McAleer became the construction code official for the Township and, in an effort to assist him in that position, plaintiff would advise McAleer if he saw any properties that were not being maintained in accordance with the Township's code.

In 2004, plaintiff had had several meetings with officials of the Township about particular issues of disability access. Plaintiff was of the view that the Township was not moving with sufficient speed to correct the problems he had brought to its attention, and he was planning to file suit against the Township. Before any complaint was filed, plaintiff received three separate visits from McAleer, who advised plaintiff that he had two commercial vehicles on his property in violation of the Township's ordinance. McAleer also told him that he had debris on his property that had to be cleaned up. In addition, plaintiff said that McAleer also said that he had been instructed to issue summonses to plaintiff if plaintiff proceeded with his plans to sue the Township. Plaintiff insisted the trucks were not commercial vehicles, that the "debris" to which McAleer pointed was construction material being used on his garage, and that he fully intended to go ahead with the planned litigation. McAleer denied ever making such a statement to plaintiff.

On May 5, 2004, shortly after McAleer's last visit, plaintiff received two summonses--one for failing to maintain the exterior of his property in a clean, safe and sanitary condition, free from accumulations of rubbish and trash, in violation of § 301.1 of the Township's property maintenance code, and one for maintaining more than one commercial vehicle on his property, in violation of § 25:5-12.b.1 of the Township's land use ordinance. In July 2004, plaintiff's wife, Carmena Stoney, filed suit against the Township, alleging that its failure to provide appropriate access to the disabled was a violation of the ADA and New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, and plaintiff assisted her with this suit.

Plaintiff's trial on the two summonses he received from McAleer was held in the Township's municipal court nearly a year after they were issued. The municipal court judge found plaintiff guilty of the two ordinance violations. Plaintiff appealed to the Law Division, which reversed these convictions for failure of the municipal court judge to make adequate factual findings. The matters were remanded and transferred to a different municipal court for trial. Plaintiff was again convicted. Plaintiff appealed to the Law Division and was again found guilty. Plaintiff appealed to this court, and we affirmed. State v. Stoney, No. A-2538-08 (App. Div. Nov. 23, 2009).

In February 2007, prior to completion of the appellate process, plaintiff filed suit against McAleer and the Township, alleging that the prosecution against him in municipal court was being pursued in retaliation for his assistance to his wife in her suit against the Township; this, he contended, violated the LAD's prohibition against such retaliatory tactics, N.J.S.A. 10:5-12d, and the New Jersey Constitution's guarantee of free speech and the right to petition the government. N.J. Const. art I, ¶¶ 6, 18. In 2009, defendants filed separate motions for summary judgment, contending that plaintiff's suit was untimely because it was filed more than two years after the summonses in question had been issued. The trial court agreed and dismissed plaintiff's complaint. This appeal followed.

Plaintiff's argument on appeal, in essence, is that the issuance of these summonses and his prosecution in municipal court constituted a continuing wrong under the principles enunciated by the Supreme Court in Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999) (noting that "[w]hen an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases."). Starting from that premise, plaintiff initially contends that the statute of limitations did not start to run until completion of his municipal court trial, and because his complaint in this action was filed within two years of that date, it could not be considered barred by the statute of limitations.

Claims that are asserted under the LAD, as is plaintiff's, are subject to a two-year limitations period. Montells v. Haynes, 133 N.J. 282, 292 (1993). This rule is not inexorable, however; the continuing violation doctrine provides an alternate analysis. Our Supreme Court has recognized the applicability of the continuing violation doctrine to LAD claims. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1 (2002) (applying the continuing violation doctrine to a hostile work environment claim); Wilson, supra, (holding successor corporation could be liable for sexual harassment and discrimination experienced at predecessor corporation if the conduct continued at the successor); Alliance for Disabled in Action, Inc. v. Renaissance Enters., Inc., 371 N.J. Super. 409 (App. Div. 2004) aff'd o.b., 185 N.J. 339 (2005) (holding that statute of limitations on LAD claims with respect to failure to comply with New Jersey's Barrier Free Subcode, N.J.A.C. 5:23-7.1 to -7.31, did not start to run until completion of large residential condominium project). The underlying purpose of the continuing violation doctrine is "to permit a plaintiff to include acts 'whose character as ...


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