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Michael Taffaro v. Colonial Bar and Scott

December 23, 2011

MICHAEL TAFFARO, PLAINTIFF-APPELLANT,
v.
COLONIAL BAR AND SCOTT J. BARTONE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-20332-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 1, 2011

Before Judges Simonelli and Hayden.

Plaintiff Michael Taffaro appeals from the October 12, 2010 order dismissing his Special Civil Part complaint against defendants Scott Bartone and Colonial Bar based on the statute of limitations. Having reviewed the record and the arguments on appeal, we affirm.

We derive the following facts from the record on appeal. For many years plaintiff was involved in a family dispute with his siblings, Vincent and Susan Taffaro. On July 13, 2003, in the Colonial Bar, where Bartone worked as a bartender, plaintiff and Vincent Taffaro had a disagreement, which led to the brothers filing criminal charges against each other. At the January 23, 2004 municipal court trial concerning those charges, Bartone appeared as a witness and testified that he had not seen the brothers fighting the night of the disagreement. Plaintiff was convicted of harassment; Vincent Taffaro was acquitted of the charges against him.

On January 22, 2010, plaintiff filed a one-count pro se complaint in the Special Civil Part, alleging that Bartone, during his testimony on January 23, 2004, had "committed multiple counts of felony perjury," causing plaintiff to be "wrongfully convicted" and "subsequently sued civilly." The complaint alleged that Bartone's actions were "wanton and malicious as he intentionally and purposely inflicted emotional stress upon plaintiff" causing him to suffer "mental and emotional torment" and "defamation." Plaintiff sought $15,000 as compensatory and punitive damages.

On June 2, 2010, plaintiff voluntarily dismissed his complaint without prejudice as he was not ready to proceed on the scheduled trial date. On June 30, 2010, plaintiff filed the instant two-count complaint, which in its first count repeated the allegations of the original complaint against Bartone. In the second count plaintiff added the Colonial Bar as a defendant and alleged, "I am suing the Colonial Bar and Scott Bartone for 'conspiracy to commit economic interference' and for violations of the 'Dram Shop Act under N.J.S.A. 2A:22A-1 et seq.' At all times herein Scott Bartone was an agent and employee of the Colonial Bar." The newly-filed complaint contained no additional factual allegations.

On September 27, 2010, defendants filed a motion to dismiss the complaint based on the statute of limitations. When plaintiff failed to file any opposing papers, the trial judge issued an order granting defendants' motion. Plaintiff filed a motion for reconsideration, arguing that no opposition had been filed because plaintiff's counsel believed he could respond to the motion on the return date. After oral argument, the trial judge denied the motion because plaintiff had not addressed the merits of defendants' motion to dismiss. This appeal followed.

Shortly after the appeal was filed, the trial judge, pursuant to Rule 2:5-1,*fn1 issued a supplementary opinion.

Pointing out that no civil remedy exists for "felony perjury," the judge reasoned that plaintiff's complaint could best be characterized as a civil complaint for defamation, which has a one-year statute of limitations. N.J.S.A. 2A:14-3. Thus, he held that the complaint should be dismissed because it was time-barred. Further, the trial judge held that dismissal was warranted because the complaint contained insufficient factual allegations to support plaintiff's claims.

On appeal, plaintiff raises the following contentions:

POINT I - IT WAS IMPROPER FOR [THE TRIAL JUDGE] TO FAIL TO GIVE A REASON TO PLAINTIFF AND HIS COUNSEL FOR REVERSING HIS DECISION OF APRIL 30, 2010.

POINT II - IT WAS IMPROPER FOR [THE TRIAL JUDGE] TO GO ON THE RECORD WITHOUT EVEN NOTIFYING PLAINTIFF OR HIS COUNSEL AND PRESENT HIS SUPPLEMENTARY FINDINGS OF FACT AND CONCLUSIONS OF LAW MORE THAN 2 ...


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