SAM RUSSO VS. PLUMSTED TOWNSHIP(L-794-11, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 16, 2017
• Docket: A-1564-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1564-15T2

SAM RUSSO,

Plaintiff-Appellant,

v.

PLUMSTED TOWNSHIP, PLUMSTED TOWNSHIP POLICE DEPARTMENT, GLEN RICCARDI, and RONALD S. DANCER,

Defendants,

and

MICHAEL LYNCH,

Defendant-Respondent.

Argued April 5, 2017 – Decided May 16, 2017

Before Judges Alvarez, Manahan, and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-794-11.

John C. Eastlack, Jr., argued the cause for appellant (Weir & Partners LLP, attorneys; Mr. Eastlack and Lilia Londar, on the briefs).

Jared J. Monaco argued the cause for respondent (Gilmore & Monahan, P.A., attorneys; Mr. Monaco, of counsel and on the brief). PER CURIAM

Plaintiff Sam Russo appeals the Law Division's November 17,

2015 grant of summary judgment to defendant Michael Lynch

dismissing the amended complaint. Russo also appeals the denial

of his request for extension of the discovery end date. Having

reviewed the record and relevant law, we affirm for the reasons

stated by Judge Den Uyl, with some brief additional comments.

Russo alleged several causes of action against Lynch,

claiming that Lynch acted beyond his statutory authority while

serving as the Plumsted Township Public Safety Director in 2009.

Russo owns and operates a 100-acre farm adjoining a residential

development where Lynch resided during the relevant timeframe.

Russo's appendix includes a February 15, 2009 police report,

signed by a Patrolman Uricks. We reproduce it in full:

T/O AND 263 WERE REQUESTED BY DIRECTOR LYNCH TO RESPOND TO CANDACE COURT AND BOBBI'S TERRACE BECAUSE OF QUAD COMPLAINTS HE HAD BEEN RECEIVING. UNITS WENT OUT ON LOCATION AND FOLLOWED THE TOWNSHIP BUILDING INSPECTOR/CODE ENFORCEMENT OFFICER, AND DIRECTOR LYNCH TO THE RUSSO FARM. UPON ARRIVAL, T/O SAW 5 DIRT BIKES AND 1 QUAD ON TOP OF A LARGE MOUND OF DIRT, AND ONE DIRT BIKE THAT WAS JUMPING ANOTHER LARGE MOUND. OFFICERS SPOKE TO THE PROPERTY OWNER, WHO STATED THAT HE DID NOT BELIEVE THAT HE WAS IN VIOLATION OF THE TOWNSHIP NOISE ORDINANCE. T/O, 263, INSPECTOR RICCARDI, AND DIRECTOR LYNCH EXPLAINED THE ORDINANCE TO [] RUSSO, WHO STATED THAT HE WOULD SPEAK WITH [] RICCARDI IN THE BEGINNING OF THE NEXT WEEK []

2 A-1564-15T2 IN REFERENCE TO THIS INCIDENT. UNITS WENT DOOR TO DOOR IN THE AREA OF CANDACE COURT AND BOBBI'S TERRACE TO SPEAK WITH RESIDENTS, AND SEE IF THE[Y] HAVE ANY COMPLAINTS OR CONCERNS ABOUT THE NOISE. THE FOLLOWING STATED THEY WANTED TO COMPLAIN ABOUT THE VIOLATIONS THAT HAVE BEEN OCCURRING.

The report listed the names of five residents who wanted to lodge

noise complaints, with corresponding addresses and phone numbers.

On February 21, 2009, officers were again "dispatched to the

Russo farm for a noise complaint." That report, also authored by

Uricks, states:

THE SUSPECTS AND SAM RUSSO WERE WARNED THAT THEY WOULD BE ISSUED SUMMONSES IF OFFICERS RETURNED. T/O ARRIVED ON LOCATION AND SAW (3) DIRT BIKES JUMPING IN THE REAR OF THE PROPERTY. T/O AND 263 BEGAN TO WALK TO THE REAR OF THE PROPERTY, AND AT THAT TIME, THE BIKES RODE OFF TO AN UNKNOWN AREA. PATROLS SPOKE TO SAM RUSSO, WHO STATED THAT HE KNOWS THAT HE CAN RIDE HIS DIRT BIKES ON HIS PROPERTY, BECAUSE HE SPOKE TO HIS LAW[Y]ER. [] RUSSO WAS INFORMED LAST SUNDAY, OF OUR ORDERS TO TAKE ACTION IF WE WERE CALLED TO HIS PROPERTY AGAIN. [] RUSSO TOLD T/O AND 263 THE NAMES OF THE THREE INDIVIDUALS ON THE BIKES. THEY WILL BE ISSUED SUMMONSES LATER IN THE WEEK BY ORDER OF THE DIRECTOR.

A second report of the incident was filed by a Patrolman

England:

Patrol was contacted by OCR for a noise complaint in the area of the above location. When the individuals on the dirt bikes saw patrol, they took off into the woods and could not be found. This officer and also 264 spoke with the owner of the property Sam Russo who

3 A-1564-15T2 was advised the previous week not to have anyone ride even on his property until the matter was cleared. He related it was his property and that the dirt bikes that were being rid[d]en had new suppressed muffler systems which quieted the bikes. He also related to patrol that he had spoken with his lawyer who told him [] he was not in violation of any borough ordinances that he could ride on his property. [] Russo gave us the names of the riders and was told they would be receiving borough ordinance summonses as per the Director of this department.

An aerial surveillance of Russo's farm was conducted by the

Ocean County Sheriff's Department on March 17, 2009, because he

was suspected of illegal dumping on his property. The detective

who conducted the surveillance produced a report which did not

mention Lynch.

In answers to interrogatories and the certification he filed

in support of the motion for summary judgment, Lynch said he

accompanied two police officers and the town's zoning officer to

Russo's farm on February 15, 2009, to discuss noise complaints.

The zoning officer explained the noise ordinance to Russo, who

identified one of the bikers as a professional rider from Maryland.

After that meeting, Lynch thought that Russo agreed to stop the

operation of the dirt bikes on his property, as a result of which

no summonses were issued to him that day.

While meeting with residents in the community adjoining

Russo's farm, Lynch had difficulty hearing what was said over the

4 A-1564-15T2 noise from the dirt bikes even when indoors. Since the noise

complaints continued, and the Township noise ordinance "needed to

be enforced if it was being violated," Lynch told Township police

officers to respond. Lynch named five homeowners, in addition to

the five mentioned in the police reports, who had called police

with complaints regarding noise from the dirt bikes on Russo's

property.

Lynch had no other involvement with the matter and had no

involvement or knowledge regarding either Russo's property

assessment or dredge spoils allegedly dumped on Russo's property,

issues Russo raised in the complaint. Lynch claimed that the

aerial surveillance of Russo's property was initiated by a police

sergeant, and not at his suggestion. Lynch reiterated that he

never ordered the issuance of summonses for noise from the

operation of farm equipment, but that he did advise supervisors

in the police department that they were expected to respond to

complaints from residents and to take appropriate action to enforce

"any laws or ordinances being violated."

In his affidavit submitted in opposition to the motion for

summary judgment, Russo alleges that Lynch coordinated a

conspiracy designed to prevent him from conducting his farm

business and to deprive him of his constitutional rights. He

accused Lynch of causing summonses for noise violations to be

5 A-1564-15T2 issued against him, and asserted that he was exempt from the noise

ordinance because of his farming license. Russo also accused

Lynch of having instigated the warrantless aerial search of his

property. He sought compensation for his claimed loss of forty

percent of his farm income and damage to his personal health as a

result of Lynch's allegedly ultra vires actions.

In opposition to the motion for summary judgment, Russo

provided the police reports, the aerial surveillance report, and

two letters from his former attorney. Judge Den Uyl found that

the letters had no "evidentiary value[,]" and noted that the aerial

surveillance report does not mention Lynch. The judge referenced

other police reports not included in the record on the appeal, in

which neighbors complained that "[t]he dirt bikes would carry on

for several hours." The residents described the noise as so

overwhelming that they could not be heard while conversing inside

their own homes, had difficulty conducting phone conversations,

and wanted to pursue the matter so that the noise would stop. The

February 21 visit was instigated by a homeowner. The documents

provided by Russo in opposition to the motion indicated summonses

were only issued to the dirt bike riders and not to Russo himself.

Judge Den Uyl further stated:

[Russo's affidavit] contains nothing more than unsupported allegations that [] Lynch orchestrated a conspiracy to harm him and/or

6 A-1564-15T2 his business. [Russo] has not come forward with competent evidence to corroborate his theory from which a jury could reasonably infer wrongful and actionable conduct . . . . The affidavit is conjecture not competent evidence. There was ample time and opportunity for plaintiff to develop and substantiate his claim. This case was filed in 2011 and discovery was extended to July 1, 2015 so that plaintiff could engage in the discovery he had not previously sought. Interrogatories were not served until 2015. No depositions were ever taken.

Judge Den Uyl reviewed each and every allegation made in

Russo's amended complaint, beginning with his claims grounded on

42 U.S.C. § 1983, 1985, 1986, and 1988. While he agreed with

Russo that a director of public safety may not engage in police-

only activities, he dismissed those counts based on the complete

lack of evidence regarding any such conduct or any abuse of power.

He concluded that neither the police reports nor the aerial

surveillance report established that Lynch had, while acting under

color of state law, acted against Russo.

The judge similarly disposed of Russo's malicious prosecution

claim. After reviewing the necessary elements, he reiterated that

Russo failed to "come forward with competent evidence from which

a jury could reasonably infer that [] Lynch initiated a criminal

or civil proceeding against [Russo]."

The judge next reviewed the causes of action for negligence,

tortious interference with economic advantage, and negligent

7 A-1564-15T2 infliction of emotional distress. He opined that Russo did not

produce any evidence of conduct that would raise a material issue

of fact that should be presented to a jury.

Finally, the judge found Russo failed to demonstrate any

connection between Lynch and the aerial surveillance or the

issuance of ordinance violations against third parties for their

use of recreational dirt bikes. Accordingly, he dismissed the

complaint.

Russo's counsel was substituted after the discovery end date

of July 1, 2015. Russo's application for additional discovery was

denied August 7, 2015, also beyond the discovery end date.

Although Lynch's attorney consented to the taking of depositions

after July 1, he did not consent to a broader extension of

discovery. We describe the judge's analysis on this issue in the

relevant section of the opinion.

Now on appeal, Russo raises the following points for our

consideration:

I. Standard of Review.

II. The Trial Court Improperly Granted Summary Judgment Because Evidence of Record Established Genuine Issues of Material Facts.

A. The Court Erred in Dismissing Counts One and Two Of Petitioner's Amended Complaint.

8 A-1564-15T2 B. The Court Erred in Dismissing Counts Five and Six Of Petitioner's Amended Complaint.

C. The Court Erred in Dismissing Counts Eight and Nine Of Petitioner's Amended Complaint.

D. The Court Erred in Dismissing Counts Eleven, Twelve, And Thirteen of Petitioner's Amended Complaint.

III. The Trial Court Erred by Denying Petitioner's Motion to Extend Discovery.

A grant of summary judgment is reviewed on appeal "in

accordance with the same standard as the motion judge." Globe

Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v.

Bhagat, 217 N.J. 22, 38 (2014)). That standard compels summary

judgment "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact challenged and the moving party is entitled to

judgment or order as a matter of law." R. 4:46-2(c). Where "the

party opposing summary judgment points only to disputed issues of

fact that are 'of an insubstantial nature,' the proper disposition

is summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 529 (1995) (quoting Judson v. People's Bank & Trust Co.

of Westfield, 17 N.J. 67, 75 (1954)).

9 A-1564-15T2 We agree with Judge Den Uyl's conclusions regarding the state

of Russo's proofs. The police reports, aerial surveillance

reports, certifications, affidavits, and answers to

interrogatories, do not demonstrate any material issue of fact.

Viewing the proofs in the light most favorable to Russo, it does

not appear he has any evidence that Lynch acted unlawfully. It

is undisputed that Lynch participated in that first February 15,

2009 meeting with Russo, the zoning officer, and police——but Lynch

did not act after that, and the meeting resulted in no adverse

consequences to Russo. Lynch's advice to the officers to enforce

the law is not actionable.

Russo's reliance on Jordan v. Harvey, 381 N.J. Super. 112

(App. Div. 2005), is misplaced. In Jordan, a police safety

director "began participating in law enforcement activities,

including carrying a firearm, wearing a police uniform, and

personally apprehending suspects." Id. at 114. We held that a

public safety director's conduct is unlawful when it includes

action limited by statute to the role played by a police officer.

Id. at 115. Lynch's behavior did not cross that boundary.

N.J.S.A. 40A:14-118 permits a municipality to retain a

director of public safety to "act in all manners relating to police

function in the municipality." The police chief is directly

responsible to the director of public safety for the "efficiency

10 A-1564-15T2 and routine day-to-day operations" of the police force. Ibid.

Lynch's actions were consistent with that role. He personally

issued no complaints, nor did he direct that any be issued. The

investigatory report calling for aerial surveillance does not

mention him. Thus, Lynch appears to have acted well within the

boundaries of his statutorily defined role. When the evidence is

viewed in the light most favorable to Russo, it does not

demonstrate a genuine issue of material fact, and Lynch is entitled

to judgment as a matter of law.

Turning to Russo's second claim of error, on August 7, 2015,

the judge denied Russo's application to extend the discovery end

date. We review discovery orders deferentially, subject to an

abuse of discretion standard. State in Interest of A.B., 219 N.J.

542, 554 (2014). In denying the application, the court principally

relied upon the issuance of a February 9, 2014 case management

order, which established a July 1, 2015 discovery end date and set

a September 14 trial date. The court observed that the case was

four years old, "absolutely no discovery" had been undertaken

before the case management order, and that the motion itself was

filed by substituted counsel past the discovery end date. Russo's

substituted counsel entered the case after the discovery end date.

The court denied the motion in the absence of a "showing of

11 A-1564-15T2 exceptional circumstances and nothing even bordering on good

cause."

Lynch's attorney had consented to a deposition being taken

beyond the deposition end date but before the discovery end date.

No agreement existed as to a global extension of the discovery end

date, however. In light of the age of the case, and the fact

interrogatories were not served on Lynch until after the issuance

of the case management order, shortly before the discovery end

date in a case that had been pending for four years, no abuse of

discretion occurred.

Discovery is extended, once a trial date has been scheduled,

only upon a showing of "exceptional circumstances[.]" R. 4:24-

1(c). The substitution of new counsel does not constitute the

type of extraordinary circumstances envisioned by the rule. See

Rivers v. LSC P'Ship, 378 N.J. Super. 68, 79 (App. Div. 2005)

(quoting Huszar v. Greate Bay Hotel & Casino, 375 N.J. Super. 463,

473-74 (App. Div. 2005)) (holding that no extraordinary

circumstances are present where "delay rests squarely on

plaintiff's counsel[]"); Zadigan v. Cole, 369 N.J. Super. 123,

132, n.8 (App. Div. 2004) ("For purposes of a showing of

'exceptional circumstances,' there generally must be some showing

that the circumstances presented were clearly beyond the control

of the attorney and the litigant seeking an extension of time.").

12 A-1564-15T2 During the four years this matter was pending, the only

interrogatories that were served prior to May 2015 appear to be,

although the date of signature is not clear, interrogatories served

by Lynch upon Russo. In light of the unexplained delay, no

extension was warranted as no exceptional circumstances were

shown.

Affirmed.

13 A-1564-15T2