SAM RUSSO VS. PLUMSTED TOWNSHIP(L-794-11, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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 []
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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
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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
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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
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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
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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
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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.
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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)).
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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
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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
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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.").
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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.
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