On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4419-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
Plaintiff Elizabeth Bishop*fn1 appeals from an October 2, 2009 order denying her summary judgment motion and granting summary judgment dismissing her legal malpractice complaint against defendants Nuzzi & Mason and Vincent J. Nuzzi. Defendants cross-appeal from an August 28, 2009 order denying their motion to take plaintiff's deposition. We affirm the August 28 order, reverse the October 2 order, and remand this case to the Law Division for further proceedings.
Because this appeal arises from a summary judgment decision, we have reviewed the record de novo to determine whether there are material facts in dispute and, if not, whether the undisputed facts viewed in the light most favorable to the non-moving party entitle the moving party to judgment as a matter of law. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010); Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005).
Plaintiff's malpractice suit was based on defendants' failure to timely file a pension appeal. Therefore, we begin by describing plaintiff's pension claim. In 2000, plaintiff, a former Paterson police officer, filed a claim for an accidental disability pension, based on psychological damage caused by sexual harassment she suffered in 1998. The Medical Review Board found that plaintiff had developed post-traumatic stress disorder as "a direct result" of the 1998 "harassment at work," and that she was totally and permanently disabled from performing her job.
However, in a September 25, 2001 decision, the Police and Firemen's Retirement System Board of Trustees (Board) ruled that the incidents were not "traumatic events" for purposes of the disability statute and her disability was not "the direct result" of the harassment. The Board awarded her an ordinary disability retirement, which provided lower benefits than an accidental disability retirement.
Plaintiff then had forty-five days to appeal the Board's decision. Had a timely appeal been filed, she would have been entitled to an evidentiary hearing before an independent administrative law judge (ALJ), who would have rendered an initial decision which the Board could adopt, modify or reject. Plaintiff retained defendants to filed the appeal for her, but they failed to do so.
Four years later, on October 26, 2005, defendants finally sent the Board a letter requesting a hearing to appeal the 2001 decision. The Board voted to deny the application as untimely on November 14, 2005. In a December 13, 2005 final determination, the Board also noted that ongoing sexual harassment was the kind of "ongoing act" that did not constitute a traumatic event, and sexual harassment was not a "great rush of force" which the Board found was required to prove a traumatic event justifying an accidental disability pension. Notably, the Board's 2005 decision resulted not from a plenary hearing, to which plaintiff would have been entitled if she had filed a timely appeal, but from the letter that defendants filed on her behalf.
Plaintiff appealed the Board's decision to this court. We affirmed on
the timeliness issue without addressing the merits of the claim. IMO
Elizabeth Bishop, No. A-2349-05 (App. Div. July 16, 2007).*fn2
Plaintiff then sued defendants for malpractice, claiming that
but for their negligence, she would have been awarded an accidental
There is no dispute on this record that defendants committed professional negligence by failing to file a timely appeal for plaintiff. However, in order to prevail on a malpractice claim, a plaintiff must prove that the negligence proximately caused the damages that she claims. See Jerista v. Murray, 185 N.J. 175, 190-91 (2005). In a legal malpractice case, the plaintiff must prove that but for defendant's negligence she would have won her case. Id. at 191. Generally, that requires a "suit within a suit," in which the plaintiff presents the case that she would have presented had she been able to pursue her claim, and the trier of fact must decide if she would have won that case. Ibid.
On the summary judgment motion in the malpractice case, plaintiff presented to the trial judge, through certifications and expert reports, the proofs that she would have presented to an ALJ had defendants timely filed her administrative appeal. Defendants did not rebut plaintiff's evidence that she was subjected to sexual harassment. Rather, their defense was that, under the law as it existed in 2001, her proofs would have been insufficient to entitle her to an accidental disability pension.
This was plaintiff's evidence. Bishop was hired by the Paterson Police Department in 1990. Beginning in the fall of 1993, her supervising sergeant, Richard Benevento, began to sexually harass Bishop by giving her unwanted gifts, making improper remarks, and inciting his girlfriend to make threatening phone calls to her. The harassment culminated in an incident in December 1993, in which Benevento, who outweighed Bishop by more than 100 pounds, physically restrained Bishop and fondled her inside a patrol car while they were both on duty.
Bishop suffered psychological injury due to the harassment, and she eventually sought professional help and reported her sergeant's conduct to the Police Department. After an administrative disciplinary hearing in March 1994, Benevento was found guilty of misconduct and harassment directed at four female police officers, including Bishop. As a result, he was demoted and ordered to refrain from contacting Bishop. The City also paid Bishop a monetary settlement.
After receiving additional mental health treatment for the 1993-94 incidents, Bishop was able to return to work in 1995 and performed her job successfully until 1998. In the summer of 1998, she was reassigned to work at the main desk of the Paterson Police Department, which required that she have regular contact with Benevento. During that summer, plaintiff experienced a second round of harassment at Benevento's hands, culminating in a physical assault on or about August 24, 1998.
In that incident, which occurred at work, Benevento approached plaintiff from behind and held her in a bear hug while repeatedly thrusting his pelvis into her buttocks and forcing the front of her body into the desk. Bishop was so upset by this incident that she reported it immediately to her captain, who had to escort her home because she was too distraught to drive. Although plaintiff reported the assault to Internal Affairs and returned to work, the harassment continued and she was forced to leave her job due to the psychological trauma of the attack.
The City of Paterson filed an involuntary application on Bishop's behalf for ordinary disability under the Police and Firemen's Retirement System (PFRS) on November 12, 2000. On November 28, 2000, Bishop herself applied for an accidental disability retirement effective December 1, 2000. In her application, she claimed that she was unable to continue working as a patrol officer ...