July 17, 2013
GIUSEPPE RIBAUDO, Plaintiff-Appellant,
CITY OF GARFIELD, GERALD WALLACE,  THOMAS DUCH, and NICHOLAS MELFI, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9814-10.
Giuseppe Ribaudo, appellant pro se.
O'Toole Fernandez Weiner Van Lieu, L.L.C., attorneys for respondents (Robert J. Gallop, of counsel and on the brief).
Before Judges Ashrafi and Guadagno.
Plaintiff Giuseppe Ribaudo appeals from the February 17, 2012 Law Division order granting summary judgment to defendants and dismissing plaintiff's complaint. Plaintiff also appeals from the April 27, 2012 order denying his motion for reconsideration. We affirm.
On August 30, 2005, defendant Gerald Wallace, a construction official with the City of Garfield, issued a "Notice of Violation" to plaintiff citing three conditions at a home he owned: (1) pool must be enclosed by fencing; (2) remove accumulated garbage/rubbish; and (3) exterior wall needs repair. The notice required that the violations be rectified within ten days and warned that "a municipal summons will be issued for each outstanding violation" if they were not.
In response, plaintiff removed the accumulated garbage but did not immediately repair the exterior wall or enclose the pool with a fence.
On October 20, 2005, Wallace served plaintiff with a summons alleging a failure to secure the pool and repair the deteriorated wall. Plaintiff appeared in municipal court on November 15, 2005. By then, plaintiff had enclosed the pool and agreed to Wallace's request that he install a lock on the gate. The municipal judge ordered plaintiff to repair the wall and gave him three months to complete the repairs.
On April 6, 2006, plaintiff again appeared in municipal court. Plaintiff had not completed the repairs due to recent surgery, but had purchased some of the materials needed. Defendant Nicholas Melfi, a Garfield building sub-code official, appeared and requested that plaintiff provide an engineer's report before undertaking repairs. The municipal judge ordered plaintiff to obtain the report within ten days. Plaintiff obtained an engineering report from the PMK Group (PMK) containing recommendations for the repair of the wall and provided it to Melfi. Melfi disagreed with some of the engineer's recommendations and met two of the PMK engineers at the site on May 30, 2006. After the meeting, Melfi requested construction plans for the repairs. As PMK was not able to provide construction plans, plaintiff retained another engineering firm, E2 Project Management L.L.C. (E2PM). Plaintiff disagreed with some of the recommendations of E2PM, including a reduction in the height of the wall.
On August 17, 2007, plaintiff informed Melfi that repairs to the exterior wall had been completed. Plaintiff noted that he did not change the elevation of the wall as recommended in the E2PM report.
On November 8, 2007, the municipal court held a trial. Melfi, Wallace and plaintiff testified. The municipal judge found that plaintiff failed to comply with the prior order to secure the pool as it was full of debris and "should be covered and cleaned." The judge was not satisfied as to the proofs regarding the wall violations without further engineering reports. Plaintiff was assessed $783 in fines and costs.
Plaintiff appealed to the Law Division and on March 25, 2008, plaintiff's conviction was vacated and the matter was remanded to the municipal court.
On September 16, 2008, Wallace inspected the repairs plaintiff had made and, on the following day, issued a "Notice of Violation and Order to Terminate" to plaintiff for violating N.J.A.C. 5:23-2.14(a) for making the repairs to the retaining wall without a required permit. Plaintiff was given one month to remedy the violation.
On October 13, 2010, plaintiff filed a complaint against the City of Garfield, Wallace, Melfi, and Thomas Duch, the City Manager, alleging negligence, harassment and intentional infliction of emotional distress.
On February 17, 2012, the Law Division heard oral argument on defendants' motion for summary judgment. The court found that plaintiff had not overcome the immunity provisions of the Tort Claims Act for public officials and dismissed his complaint.
On appeal, plaintiff claims the Law Division erred in granting summary judgment, as defendants' conduct fell under an exception to Title 59, and plaintiff's motion for reconsideration should have been granted because more detailed information was provided as to defendants' conduct.
The New Jersey Tort Claims Act provides immunity for public officials in certain circumstances. N.J.S.A. 59:3-2(a) provides, "[a] public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him[.]" N.J.S.A. 59:3-3 provides that "[a] public employee is not liable if he acts in good faith in the execution or enforcement of any law."
Plaintiff was notified in 2005 of three violations on property he owned. In his deposition, plaintiff acknowledged that he did not dispute any of the violations and agreed to perform the remediation. Plaintiff also admitted that the collapsed retaining wall posed not only cosmetic concerns, but safety concerns as well. Two of the violations were remedied promptly, but the repairs on the retaining wall were not completed for more than two years. City officials were required to file a complaint in the municipal court after plaintiff ignored the initial notice of violation. Numerous visits to plaintiff's property by City officials were necessary over the course of this proceeding. Plaintiff conceded that, had he hired a contractor to repair the wall, the work could have been completed within one week and would have cost between $1, 000 and $4, 000 "depending on the contractor."
Plaintiff argues that the conduct of the City officials falls into the public employee immunity exception contained in N.J.S.A. 59:3-14. We disagree. N.J.S.A. 59:3-14 provides:
a.Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
b.Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
Plaintiff has presented no evidence that defendants acted outside the scope of their public employment. All of defendants' actions were directed at compelling plaintiff's compliance with Garfield's ordinances. The record before us provides no basis for a determination that the actions of defendants should not be subject to N.J.S.A. 59:2-3(a) immunity.