SALVATORE J. MORETTI VS. BOROUGH OF PARAMUS (DC-105530-18, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1162-18T1
SALVATORE J. MORETTI,
Plaintiff-Appellant,
v.
BOROUGH OF PARAMUS,
Defendant-Respondent.
__________________________
Argued telephonically March 23, 2020 –
Decided July 15, 2020
Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. DC-105530-18.
Salvatore J. Moretti, appellant, argued the cause pro se.
R. Scott Fahrney argued the cause for respondent
(Kaufman, Semeraro & Leibman, LLP attorneys; R.
Scott Fahrney, on the brief).
PER CURIAM
Plaintiff Salvatore J. Moretti appeals from the Law Division's order
granting, without prejudice, defendant Borough of Paramus's motion to dismiss
his complaint. Plaintiff's complaint alleged a shade tree fell on and damaged his
car in the amount of $6000. Plaintiff claimed the alleged damages prevented
him from working and defendant negligently caused his damages. The motion
judge granted defendant's Rule 4:6-2 motion to dismiss for failure to state a
claim upon which relief can be granted after concluding there was no proof that
plaintiff complied with the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, or
if he did, that the complaint was timely. 1
On appeal, plaintiff argues:
POINT I
THE BOROUGH OF PARAMUS CANNOT RELY
UPON THE NEW JERSEY TORT CLAIMS ACT 90
DAY NOTICE PROVISION, WHICH DOES NOT
APPLY TO THE FACTS OF THIS CASE.
POINT II
THE BOROUGH OF PARAMUS CREATED THE
SHADE TREE COMMISSION, AUTHORIZING THE
1
Plaintiff's complaint alleged the cause of action accrued on May 16, 2018.
Pursuant to the 90-day notice requirement, N.J.S.A. 59:8-8, plaintiff should have
filed a notice of tort claim by August 14, 2018. Plaintiff should have then waited
six months from the date that notice of the claim was received to file suit. Ibid.
Expiration of the six months occurred on February 14, 2019. Plaintiff filed his
complaint on June 6, 2018.
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AUTHORITY TO LEVY FINES, AND THUS
[FINANCIAL] RESPONSIBILITY IS A BOROUGH
DUTY.
POINT III
THE TORT CLAIMS ACT NOTICE REQUIREMENT
DOES NOT APPLY IN THE CASE AT BAR, SINCE
THE NETWORK OF NUMEROUS INTERRELATED
LEGAL ACTIONS SHOW AN INVERSE
CONDEMNATION OF MORETTI'S REAL ESTATE.
We are unpersuaded by these contentions. Applying our "plenary standard
of review from a trial court's decision to grant a motion to dismiss pursuant to
Rule 4:6-2(e)," under which we "owe no deference to the trial court's
conclusions," Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J.
Super. 103, 114 (App. Div. 2011), we affirm substantially for the reasons
expressed by the motion judge. We add only the following brief comments.
When reviewing a trial court's grant of a motion to dismiss under Rule
4:6-2(e), the test to determine the adequacy of the pleading is whether the facts
as presented in the complaint suggest a cause of action. See Printing Mart-
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989); Velantzas v.
Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). Plaintiff's complaint did not
suggest, as he argues, a constitutional issue of inverse condemnation, barring
application of the TCA's notice requirements.
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An inverse condemnation involves the taking of real property by the
government, see Klumpp v. Borough of Avalon, 202 N.J. 390, 406 (2010), not
damage to a car. The TCA, therefore, applied. See Greenway Dev. Co. v.
Borough of Paramus, 163 N.J. 546, 557 (2000) (holding that the TCA does not
apply to inverse condemnation claims).
Finally, to the extent plaintiff argues that the TCA did not apply because
the municipal shade tree commission caused the damage to his car, he did not
join that entity and his claim is barred by N.J.S.A. 40:64-14. The statute
provides:
Nothing in this chapter contained shall be construed to
make any shade tree commission . . . responsible
for . . . an injury to any property or highway tree or
shrub. Liability for any such . . . injury shall be
governed by [N.J.S.A. 59:4-10] and any other relevant
provisions of the [TCA].
See also Petrocelli v. Sayreville Shade Tree Comm'n, 297 N.J. Super. 544, 547-
48 (App. Div. 1997) (declining to consider whether immunity under N.J.S.A.
40:64-14 extends to the entity which established the shade tree commission).
To the extent we have not specifically addressed any of plaintiff's
remaining arguments, we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1162-18T1
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