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Richard Rivera v. the Town of West New York

February 16, 2012

RICHARD RIVERA, PLAINTIFF-APPELLANT,
v.
THE TOWN OF WEST NEW YORK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3009-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 25, 2012

Before Judges Graves and Harris.

Plaintiff Richard Rivera appeals from a final judgment of the Law Division dismissing his complaint. He sought reinstatement as a police officer in defendant Town of West New York almost eight years after agreeing to settle a federal lawsuit, receiving $675,000 in settlement proceeds, and promising West New York that he [would] never reapply for reinstatement to employment with West New York Police Department and [would] never apply for or accept any other employment with the Town of West New York, exclusive of elected and appointed positions.

We affirm.

I.

Rivera was employed as a police officer in West New York from 1990 to 2002. In 1997, he commenced an action in the United States District Court for the District of New Jersey (the District Court) against West New York, its police department, and the Chief of Police (individually and in his official capacity). According to the complaint filed in the Law Division, the federal action alleged "that he was retaliated against in the terms and conditions of his employment and suspended for exposing widespread graft and corruption in the [West New York] Police Department." Because the parties did not include a copy of the federal pleadings in their appendices, except for a twelve-page "Settlement Agreement and Mutual General Release" (the settlement agreement), we are uncertain of Rivera's actual theories of liability and bases for federal jurisdiction.

Nonetheless, Rivera and the federal defendants resolved their dispute and memorialized the disposition in the settlement agreement. Both sides were represented by attorneys. The settlement agreement, in pertinent part, provided for the following: (1) West New York agreed to file "a petition for involuntary ordinary disability pension and may file a petition for accidental disability pension, or both, for Mr. Rivera with the New Jersey Police and Firemen's Retirement System (PFRS)"; (2) Rivera was permitted to file "simultaneous with any PFRS filing by [West New York] . . . a petition with the PFRS, on his own behalf, to obtain an accidental and ordinary disability pension"; (3) once an unappealed accidental or ordinary disability pension became effective, "Mr. Rivera shall retire from the West New York Police Department in accordance with the applicable PFRS rules and regulations," and West New York would pay Rivera $675,000; and (4) Rivera agreed that upon fulfillment of all of the terms of the settlement agreement "he [would] never reapply for reinstatement to employment with West New York Police Department and [would] never apply for or accept any other employment with the Town of West New York, exclusive of elected and appointed positions."

The settlement agreement was performed and fulfilled by the parties. Effective March 1, 2003, Rivera became entitled to ordinary, not accidental, disability retirement pursuant to N.J.S.A. 43:16A-6. The federal action was dismissed with prejudice and Rivera was paid $675,000. Rivera and his employer parted ways.

Almost six years later, believing that his disability had abated, Rivera sought reinstatement from the PFRS as a police officer in West New York pursuant to N.J.S.A. 43:16A-8(2); see also N.J.A.C. 4A:4-7.12.*fn1 On November 9, 2009, the PFRS -- aware of the settlement agreement, and after conducting what it called a "careful review of the medical documentation provided" -- determined the following:

[T]he Board voted to approve Mr. Rivera's request for reinstatement based solely on the medical report of the Independent Medical Examiner and the Medical Review Board that determined that Mr. Rivera is no longer totally and permanently disabled from the performance of his job duties. The Board made no determination regarding the settlement agreement and the legality of compliance as this is a matter between Mr. Rivera and the Town of West New York.

West New York did not appeal the PFRS determination but refused to reinstate Rivera. On May 28, 2010, Rivera commenced the instant action in the Law Division, Hudson Vicinage, seeking summary enforcement of the PFRS determination pursuant to the summary action protocol of Rule 4:67-6(a)(2).

West New York responded to the complaint by filing a Notice of Removal in the District Court. The District Judge, by way of a sua sponte motion, determined that there was no original or ancillary federal ...


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