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Lorenzo Oliver v. Yvonne Lee

April 25, 2012

LORENZO OLIVER, PLAINTIFF-APPELLANT,
v.
YVONNE LEE, LT. M. KADY, AND DEPARTMENT OF CORRECTIONS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6590-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2012

Before Judges A. A. Rodriguez and Fasciale.

Plaintiff Lorenzo Oliver, an inmate in the custody of the Department of Corrections (DOC), appeals from a November 7, 2008 order dismissing with prejudice his complaint against defendants DOC, Officer Yvonne Lee, and Lt. M. Kady pursuant to Rule 4:6-2(e). We vacated that order without prejudice, and remanded the case to accord the judge an opportunity to set forth his factual findings and legal conclusions, which he did in an October 21, 2010 written decision. We now affirm, but remand for issuance of a contemporary order.*fn1

The relevant facts of this case are set out in our first opinion. See Oliver v. Lee, No. A-2059-08 (App. Div. December 11, 2009) (slip op. at 1-4). We briefly summarize them here.

On October 14, 2007, plaintiff, an inmate, was washing dishes at East Jersey State Prison when he touched the buttocks of defendant Lee, a female DOC employee, who was standing behind him. The DOC charged plaintiff with sexual harassment and unauthorized physical contact,*fn2 and transferred him to a detention area in Northern State Prison (NSP). On November 5, 2007, after an investigation and hearing, the DOC dismissed the charges.*fn3

On August 12, 2008, plaintiff filed a complaint against defendants, alleging intentional infliction of emotional distress and false imprisonment. Defendants moved for summary judgment based on plaintiff's failure to file a notice of claim. Plaintiff then moved for an extension of time to respond to the summary judgment motion. On November 7, 2008, the judge issued an order denying plaintiff's motion for an extension and a separate order dismissing plaintiff's complaint with prejudice pursuant to Rule 4:6-2(e).*fn4

On the first appeal, we concluded that "[t]he record supplied to us [did] not contain any transcript, memorandum, or other writings setting forth the trial court's findings of fact and conclusions of law with respect to this entire matter." Id. at 4. We therefore "vacat[ed] the November 7, 2008[] orders without prejudice, and remand[ed] to afford the court the opportunity to set forth its findings of fact and conclusions of law with respect to the motions decided by it and to ascertain whether the plaintiff's motion for leave to file notice of a late claim was in fact timely received by the court and, if so, whether it had merit." Id. at 7.

On October 21, 2010, the judge issued a three-page written opinion. In relevant part, he stated:

The Court finds that Yvonne Lee and Lt. M. Kady are public employees of the [DOC], a public entity under N.J.S.A. 59:1-1. Plaintiff in this case has failed to file a notice of his claim within 90 days of the accrual of his claim pursuant to N.J.S.A. 59:8-8. Here[,] the date of accrual is November 5, 2007, the end date of confinement and cause of plaintiff's damages. The accrual date of November 5, 2007[] would require the Plaintiff to file a notice of claim to the [DOC] by February[] 5[,] 2008. Plaintiff failed to file a notice of claim by this date and Defendants were only given notice of the claim upon receiving the complaint on or around August 28, 2008. The Plaintiff in this case has also failed to file []either a "late notice of claim" []or any affidavits or support constituting extraordinary circumstances for his failure to file notice of his claim within the ninety day period under [] N.J.S.A. 59:8-9. The Court has no record in the Superior Court, Law Division's Automated Case Management System []or in the case file of the Plaintiff making such application to the Court for consideration.

Since the Plaintiff has failed to file a notice of claim within the ninety days required by N.J.S.A. 59:8-8 and has also failed to file application to the court for permission to file a late notice of claim under N.J.S.A. 59:8-9, Defendant's motion for Summary Judgment was granted on November 7, 2008.

Plaintiff's motion for an extension of time to answer for summary judgment was also denied on November 7, 2008. Plaintiff in this case filed a motion rather than an answer or an opposition to the motion for summary judgment. Plaintiff sought to delay the time of the motion for summary judgment by filing the motion to extend. The Court finds that the Plaintiff did indeed have adequate time to respond to the Summary ...


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