NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-133-11.
Larry S. Loigman, attorney for appellant.
Respondent has not filed a brief.
Before Judges Fisher and Espinosa.
This case has its genesis in a prior matrimonial action commenced by defendant Diana M. Royle, against her husband, in which she apparently alleged plaintiff Lisa Griffin committed adultery with defendant's husband. Following the voluntary dismissal of the matrimonial action, plaintiff commenced this action, alleging defendant harassed her in a variety of ways and seeking damages for her emotional distress.
Following an unprofitable settlement conference, Judge Linda Grasso Jones considered defendant's motion for summary judgment, as well as plaintiff's cross-motion for her recusal because of her participation in settlement discussions. Judge Jones denied the recusal motion and granted summary judgment.
Plaintiff appeals, arguing that the judge erred in granting summary judgment and in denying recusal. We find no merit in these arguments.
The first of the complaint's two counts alleged that defendant harassed plaintiff through "annoying and insulting telephone communications, " by "following [her] when . . . driving, " and by making "abusive and threatening communications by screaming, shouting, and gesturing, and similar behavior"; she later asserted, in opposing defendant's summary judgment motion, that she was also harassed by the allegation of adultery contained in defendant's divorce complaint. As to this count, plaintiff asserted in her opposing affidavit that, although she "was very upset" by defendant's conduct and the adultery allegation in the matrimonial action, she "did not seek medical treatment."
Our courts have yet to determine whether conduct constituting the criminal offense of harassment, as defined by N.J.S.A. 2C:33-4, gives rise to a civil cause of action. Aly v. Garcia, 333 N.J.Super. 195, 203 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001). We again decline the invitation to decide that issue. It suffices to recognize, as Judge Jones held, that a civil claim of harassment would be subject to the same analysis given to an intentional infliction of emotional distress claim, see id. at 204, which requires evidence of a physical illness or serious psychological sequelae capable of being diagnosed by trained professionals, see Abouzaid v. Mansard Gardens Assocs., LLC, 207 N.J. 67, 78 n.4 (2011); Taylor v. Metzger, 152 N.J. 490, 515 (1998); Aly, supra, 333 N.J.Super. at 204. Plaintiff's mere claim that she was "very upset" by defendant's alleged conduct is insufficient as a matter of law to sustain such a cause of action. See Juzwiak v. Doe, 415 N.J.Super. 442, 452 (App. Div. 2010); Aly, supra, 333 N.J.Super. at 204. Consequently, the judge correctly granted summary judgment on this count.
The second and last count of plaintiff's complaint claimed defendant knowingly and falsely alleged in her matrimonial complaint that plaintiff had "committed adultery" with defendant's husband. Plaintiff asserted that defendant "maliciously and without probable cause misused, abused or perverted" the court's processes by incorporating that allegation in her matrimonial complaint. Although, as pleaded, this count would appear to be limited to a claim of malicious abuse of process, and was so analyzed by Judge Jones in granting summary judgment, plaintiff on appeal now seems to abandon that theory and argues, instead, that the claim sounds in defamation. To the extent plaintiff may still be arguing the former, we affirm substantially for the reasons set forth in Judge Jones's oral decision. In viewing the second count as a defamation claim, we conclude that a matrimonial plaintiff has immunity to utter an adultery allegation in a matrimonial complaint. See, e.g., Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 558 (1955) (holding "absolute privilege or immunity is . . . afforded in judicial proceedings where judges, attorneys, witnesses, parties and jurors are fully protected against defamation actions based on utterances made in the course of the judicial proceedings and having some relation thereto"). To be sure, an assertion of a party's infidelity in a civil pleading may not be immune in all circumstances, see Hawkins v. Harris, 141 N.J. 207, 219 (1995), but its relevance in a matrimonial action – and, thus, the proper cloaking of that allegation with immunity – is beyond doubt, see N.J.S.A. 2A:34-2(a). For these reasons, we affirm the summary judgment entered on the second count.
We also reject plaintiff's argument that Judge Jones should have recused herself from hearing the summary judgment motion because she had conducted a ...