KIM OREFICE VS. TOWNSHIP OF LYNDHURST (L-4626-15, BERGEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4389-16T4
KIM OREFICE,
Plaintiff-Appellant,
v.
TOWNSHIP OF LYNDHURST,
TOWNSHIP OF LYNDHURST
POLICE DEPARTMENT, OFFICER
JOHN VALENTE, and CHIEF JAMES
O'CONNOR,
Defendants-Respondents.
_______________________________
Submitted October 11, 2018 - Decided October 22, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-4626-15.
Martin S. Fishman, attorney for appellant.
Pfund McDonnell, PC, attorneys for respondent
Township of Lyndhurst (David T. Pfund, of counsel;
Mary C. McDonnell, on the brief).
Botta Angeli, LLC, attorneys for respondents Township
of Lyndhurst Police Department, Officer John Valente
and Chief James O'Connor (Christopher C. Botta and
Natalia R. Angeli, on the brief).
PER CURIAM
Plaintiff Kim Orefice appeals from an order of summary judgment
dismissing her complaint for malicious prosecution and violation of her rights
under the New Jersey Constitution against defendants Township of Lyndhurst,
Township of Lyndhurst Police Department, Officer John Valente and Chief
James O'Connor on statute of limitations grounds. We affirm.
The essential facts are undisputed. Plaintiff was employed by Lyndhurst
as a parking enforcement officer, sometimes full-time and sometimes on a part-
time basis. She also served as a police matron on an as-needed basis, for which
she was paid separately. In 2011, the department's public safety officer
administrator came to believe plaintiff was submitting time card vouchers for
matron work while on the clock as a parking enforcement officer and being paid
when she was not present and working. Plaintiff denied any wrongdoing,
maintaining she accounted for all of her time in accordance with police
department policy.
Following her refusal to reimburse the Township for the alleged
overpayment, plaintiff was suspended without pay and charged with third-
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degree theft of wages of $746.79, later amended to $713.50. She was tried and
acquitted on March 22, 2013. Plaintiff thereafter filed a timely notice of tort
claim, but did not file her complaint until May 20, 2015, more than two years
after her acquittal. In January 2016, defendants filed an answer and fifty-six
affirmative defenses, among them that the complaint was barred by the
applicable statute of limitations.
The parties thereafter engaged in written discovery and, at defendants'
behest, participated in mediation before a privately retained mediator. No
depositions were noticed or taken. Several months after receiving plaintiff's
answers to interrogatories, wherein she disclosed the date of her acquittal,1
defendants moved for summary judgment on the basis of the statute of
limitations.
Relying on Thigpen v. City of E. Orange, 408 N.J. Super. 331, 343 (App.
Div. 2009), in which we held malicious prosecution claims are subject to the
requirements of the Tort Claims Act, Judge Thurber concluded plaintiff's
malicious prosecution claim was barred by the Act's two-year statute of
limitations. She further held that plaintiff's state constitutional claims under the
1
The date of plaintiff's acquittal was not referenced in either the tort claims
notice or the complaint. Plaintiff acknowledged that point but maintained the
date was a public record, easily discoverable.
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New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c), were likewise barred by its
two-year statute of limitations. See Lapolla v. Cty. of Union, 449 N.J. Super.
288, 298 (App. Div. 2017). Finally, Judge Thurber rejected plaintiff's claim that
defendants should be equitably estopped from asserting the statute of limitations
by not raising it earlier. Although acknowledging that defendants engaged in
discovery for many months after asserting the statute as an affirmative defense,
the judge found plaintiff's reliance on White v. Karlsson, 354 N.J. Super. 284,
286, 290 (App. Div. 2002) misplaced, as defendants had not affirmatively
represented that they did not intend to rely on the statute, participated in
mandatory arbitration under R. 4:21A without raising the defense, or delayed
asserting it until a week before the scheduled trial date as the defendant had done
in that case.
Plaintiff appeals. Implicitly conceding her complaint was time-barred,
plaintiff argues only that defendants should be estopped from asserting the
statute of limitations and that Judge Thurber's reasons for declining to apply the
doctrine do not justify her ruling. She also argues in a claim not raised to the
trial court that the "affirmative defenses set forth in the defendants' answer
violate court rule and give rise to an inference that they were not intended to be
pursued."
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Our review of the record convinces us that none of these arguments is of
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The circumstances of this case do not approach those in which our courts have
stripped defendants of the right to rely on the statute of limitations by their
conduct in litigation. See, e.g., Zaccardi v. Becker, 88 N.J. 245, 256-60 (1982);
Williams v. Bell Tel. Lab., Inc., 132 N.J. 109, 118-20 (1993); White, 354 N.J.
Super. at 290. Although participating in consensual mediation in an attempt to
settle the case, the parties had not engaged in other than written discovery and
no trial date had been set. Moreover, plaintiff does not dispute that the motion
was made only months after she first revealed the date of her acquittal in an
answer to interrogatories, having not included it in her tort claims notice or her
complaint.
Although we certainly do not endorse the inclusion of unnecessary or
unsupported affirmative defenses in a responsive pleading, plaintiff's failure to
raise this issue to the trial court leaves the record too undeveloped to allow us
to address it for the first time on appeal. See Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973).
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Accordingly, we affirm the entry of summary judgment dismissing
plaintiff's complaint, essentially for the reasons expressed by Judge Thu rber in
her opinion delivered from the bench on May 3, 2017.
Affirmed.
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