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Anthony Raspavolo v. New Jersey State Police and Trooper Stan Jessamine

July 20, 2011

ANTHONY RASPAVOLO, PLAINTIFF-APPELLANT,
v.
NEW JERSEY STATE POLICE AND TROOPER STAN JESSAMINE, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-20692-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 7, 2011

Before Judges Grall and LeWinn.

Plaintiff appeals from the January 22, 2010 order denying his motion to vacate the October 5, 2009 order dismissing his complaint pursuant to Rule 4:6-2(e). We reverse.

The pertinent facts are as follows. Plaintiff filed a complaint against defendants for abuse of process, malicious abuse of process, malicious prosecution and civil rights violations under 42 U.S.C.A. § 1983 and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2. When plaintiff attempted to file his complaint in Bergen County, the clerk directed him to file in Passaic County, which he did on April 13, 2009.

On July 8, 2009, defendants filed a motion to (1) vacate entry of a default previously entered, (2) change venue to Bergen County, and (3) dismiss the complaint. Defendants sought dismissal on the grounds of immunity, plaintiff's failure to file a timely notice of tort claim pursuant to N.J.S.A. 59:8-8, and the failure to state a claim under N.J.S.A. 10:6-2. Plaintiff filed opposition to that motion on July 21, 2009. On July 27, 2009, a judge entered an order vacating default, transferring venue to Bergen County and ordering defendants to refile their motion to dismiss in Bergen County.

On September 22, 2009, defendants filed their motion to dismiss in Bergen County. For reasons discussed below, plaintiff did not respond and, on October 5, 2009, a judge entered an order granting defendants' motion; the judge did not provide a statement of reasons for the order, noting only that it was "unopposed."

On October 27, 2009, plaintiff's counsel wrote to the Deputy Attorney General representing defendants, "confirm[ing] . . . that [his] office had not received a copy of the moving papers which apparently [led] to the entry of the" October 5 order. Counsel stated that he received a copy of the order on October 22; he requested a copy of the motion papers "as soon as possible" indicating that he would be filing a motion for reconsideration.

By letter of that same date, the Deputy Attorney General wrote to plaintiff's counsel, enclosing the motion papers, stating that he was "investigating whether anything happened in [his] office that resulted in [counsel's] failure to receive the[] documents[,]" and adding: "Under the circumstances and consistent with you[r] past courtesies to me in this case, I will not oppose your motion to reconsider so the matter may be argued on the merits."

On or about October 28, 2009, before receiving the Deputy Attorney General's response and enclosures, plaintiff moved for reconsideration. Plaintiff's counsel certified that it was "possible that [his] office could have received the moving papers and somehow misplaced same," but he saw "no evidence of that." He further asserted that "[i]f . . . [he] . . . [had] been aware of the motion to dismiss [he] would have filed opposition to same as [he] had done previously with the motion to dismiss that was filed in Passaic County." He appended a copy of his opposition filed in Passaic County as an exhibit to his certification.

On October 29, 2009, the Deputy Attorney General faxed to plaintiff's counsel proof of overnight delivery of defendants' moving papers on September 22, 2009. Plaintiff's counsel then filed a second motion for reconsideration on or about November 12, 2009, with a supporting brief and another certification by counsel. This time, counsel conceded that "it does appear that the papers were mailed to [his] office and apparently received by [him]." However, he again asserted that the papers were "somehow lost or misplaced" and his "first notice of same was when [he] received a copy of the [c]court's order . . . ." Counsel also addressed the merits of one of defendants' grounds for dismissal, namely the timeliness of the filing of the complaint.

Notwithstanding the Deputy Attorney General's statement in his October 27 letter that he would not oppose plaintiff's motion for reconsideration, defendants filed opposition on or about November 18, 2009. Defendants asserted grounds supporting their motion to dismiss the complaint; they did not address plaintiff's request to reconsider the order of October 5, so that "the motion [could] be argued on the merits."

The judge decided plaintiff's motions on the papers. The order of January 22, 2010 states that it was entered "for good cause . . . shown." However, the order includes no statement of reasons; nor does ...


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