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Rooster Bar LLC. v. Borough of Cliffside Park

Superior Court of New Jersey, Appellate Division

November 1, 2013

ROOSTER BAR LLC., d/b/a HENRY'S MARTINI LOUNGE, HOVSEP KEBABJIAN, GEORGE KEBABJIAN and HAROUT KEBABJIAN, Plaintiffs-Appellants,
v.
BOROUGH OF CLIFFSIDE PARK, BOROUGH OF CLIFFSIDE PARK POLICE DEPARTMENT and ELLIS HAROLDSON, Defendants-Respondents

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2013

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9776-10.

Richard S. Mazawey, attorney for appellants.

Law Office of William E. Staehle, attorneys for respondents (Stephen C. Cahir, on the brief).

Before Judges Reisner and Carroll.

PER CURIAM

Plaintiffs, Hovsep Kebabjian (Hovsep)[1], George Kebabjian (George), and Harout Kebabjian (Harout), appeal from the entry of summary judgment dismissing their complaint against defendants, Borough of Cliffside Park (Borough), Borough of Cliffside Park Police Department (CPPD), and Police Officer Ellis Haroldson (Haroldson). Because we agree that defendants were entitled to summary judgment as a matter of law, we affirm.

The facts and procedural history can be briefly summarized. On December 7, 2007, plaintiffs filed a tort claim notice pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Specifically, the claim form alleged that "Cliffside Park Police continually harassed claimants by stalking Henry's Martini Lounge, causing great economic harm to said business, including but not limited to a ticket given to the business on 9/15/07 for loud music, of which there was none."

On October 12, 2010, plaintiffs filed a complaint against defendants for damages, alleging intentional interference with economic advantage, harassment, and nuisance. In their complaint, plaintiffs represented that Hovsep and George were the owners of Rooster Bar LLC, d/b/a Henry's Martini Lounge (Henry's), a bar/lounge in the Borough, and that Hovsep was a manager there[2]. Henry's was also originally named as a plaintiff. The complaint alleged that beginning in 2007, members of the CPPD commenced a pattern of harassment and intimidation for the purpose of incapacitating plaintiffs' business. Specifically, plaintiffs claimed that the police issued the business baseless summonses, engaged in unjustified surveillance of the business, wrongly ordered the removal of patrons and/or stopped them after leaving the premises, and made unannounced and unauthorized visits to the establishment. Plaintiffs further contended that defendants' actions caused their business to close in June 2010, resulting in a loss in excess of $1 million.

On September 16, 2011, on defendants' motion, Judge Menelaos W. Toskos dismissed the complaint as to Henry's only, due to that entity's failure to comply with the pre-suit notification requirements of N.J.S.A. 59:8-8. Henry's has not appealed from that order. Summary judgment against the remaining plaintiffs was initially denied, without prejudice, pending the completion of discovery.

After discovery, defendants again moved for summary judgment[3], primarily on the basis that plaintiffs' complaint was time barred under N.J.S.A. 59:8-8. Plaintiffs opposed the motion, and argued that application of the continuous tort theory preserved all the various claims they asserted, dating back to 2007.

After considering these arguments, Judge Toskos granted defendants' motion for summary judgment and dismissed the complaint. In his oral opinion, the judge concluded that (1) plaintiffs' allegation that the Borough maliciously and intentionally denied Henry's application for a liquor license transfer was barred by the immunity conferred upon a public entity under N.J.S.A. 59:2-5; and (2) of the fourteen occurrences of alleged wrongful conduct cited by plaintiffs, only four fell within the two-year statute of limitations period, and none of those four standing alone was sufficient to trigger the continuing tort theory. Also, although apparently not critical to his ruling, Judge Toskos indicated that plaintiffs had no competent proofs with respect to their alleged damages. No expert economic report had been provided, and the business tax returns for 2006-2010 showed a loss each year.

On appeal, plaintiffs argue that (1) genuine issues of material fact exist which preclude summary judgment; (2) the trial court erred in failing to interpret and apply the continuing tort theory in such a manner as to remove plaintiffs' claims from the bar of the statute of limitations; and (3) defendants were not entitled to immunity under ...


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