K.S. VS. RYAN VERRECCHIO (L-2394-16, MONMOUTH COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1669-16T1
K.S.1,
Plaintiff-Appellant,
v.
RYAN VERRECCHIO, CHERI
L. CANNON, ESQ., MATHEW
TULLY, ESQ., and TULLY
RINCKEY, PLLC,
Defendants,
and
MONMOUTH COUNTY
PROSECUTOR'S OFFICE,
Defendant-Respondent.
_______________________________
Submitted March 21, 2018 – Decided May 17, 2019
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-2394-16.
1
Pursuant to Rule 1:38-3(f)(5) we use initials to protect plaintiff's identity.
Carluccio, Leone, Dimon, Doyle & Sacks, LLC,
attorneys for appellant (Edward J. Dimon, of counsel;
Marguerite Kneisser, on the brief).
GluckWalrath LLP, attorneys for respondent (Andrew
Bayer, of counsel and on the brief; Michael C.
Bachmann, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Plaintiff K.S. appeals from the order entered by the Law Division
dismissing the civil action he filed against defendant Monmouth County
Prosecutor's Office (MCPO) seeking compensatory and punitive damages for
the wrongful release of his expunged criminal records. The trial court granted
MCPO's motion to dismiss plaintiff's cause of action based on his failure to file
a notice of claim within ninety days of its accrual, as required under N.J.S.A.
59:8-8(a) of the Tort Claims Act, (TCA), N.J.S.A. 59:1-1 to 12-3.2
Plaintiff argues the court erred in dismissing his complaint against the
MCPO in its entirety because claims based on violations of the expungement
statute, N.J.S.A. 2C:52-1 to -32.1, the Identity Theft Statute of the Consumer
Fraud Act (CFA), N.J.S.A. 56:8-164, and damages related to the enforcement of
2
Although the other parties plaintiff named as defendants are not affected by
this order, under Rule 2:2-3(a)(3), an order granting or denying a motion to
extend the time to file a notice of tort claim pursuant to N.J.S.A. 59:8 -9 is
deemed a final judgment subject to appeal as of right.
A-1669-16T1
2
a court order under Rule 1:10-3 do not fall under the purview of the TCA. With
respect to his common law tort claims, plaintiff argues the trial court erred in
denying his motion to file a late notice of claim because: (1) he filed a motion
seeking this relief within one year of the accrual of the claim; and (2) there were
extraordinary circumstances under N.J.S.A. 59:8-9 to warrant the relaxation of
the ninety-day deadline in N.J.S.A. 59:8-8(a).
The MCPO argues the trial court correctly dismissed plaintiff's common
law tort claims because he did not file a notice of claim within ninety days of
their accrual as required by N.J.S.A. 59:8-8 and did not present any evidence of
extraordinary circumstances to warrant the relaxation of this statutory deadline.
With respect to plaintiff's remaining statutory claims, defendant argues the
Legislature did not create a private cause of action to recover civil damages
under the expungement statute, and plaintiff did not plead an Identity Theft
claim under the CFA.
After reviewing the record before us, we agree with the position advanced
by the MCPO and affirm. Because the trial court dismissed plaintiff's cause of
action as a matter of law under Rule 4:6-2(e) relying, in part, on materials
outside the four corners of the pleadings, we will review this factual record
under the summary judgment standards codified in Rule 4:46-2(c), and
A-1669-16T1
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explained by the Court in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
540 (1995). However, our review of the trial court's decision is de novo. Globe
Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).
I
At all times relevant to this case, plaintiff was the Chief of Investigations
Internal Affairs Officer and Lead Supervisory Detective at Joint Base McGuire-
Dix-Lakehurst Police Department. In 1996, plaintiff was employed with the
Monmouth County Tactical Narcotics Task Force. On March 21, 1996, plaintiff
was arrested and charged with official misconduct after a woman alleged he used
his position to coerce her to have sex with him. The State dismissed the charges
after plaintiff was admitted into the Pretrial Intervention Program. See N.J.S.A.
2C:43-12; R. 3:28. According to plaintiff, on January 11, 2001, the court
entered an order granting his petition to expunge the record related to this
charge.3
In December 2014, in his role as Chief of Investigations Internal Affairs
officer, plaintiff conducted an internal administrative investigation of Patrolman
3
Pursuant to N.J.S.A. 2C:52-11, such an order directs "the clerk of the court
and all relevant criminal justice and law enforcement agencies to expunge
records of said disposition including evidence of arrest, detention, conviction
and proceedings related thereto."
A-1669-16T1
4
Ryan Verrecchio regarding allegations of sexual harassment and unsafe/misuse
of a firearm. According to plaintiff, the allegations against Verrecchio were
sustained and he was disciplined accordingly. On November 2, 2015,
Verrecchio submitted a request to the MCPO under the Open Public Records
Act (OPRA), N.J.S.A. 47:1A-1 to -13, for copies of "[a]ny and [a]ll records, to
include Internal Affairs and or Criminal Investigation records pertaining to
[K.S.] of Howell[,] NJ, who was indicted while working as a Police Officer in
Avon[,] New Jersey in 1995/1996 for Official Misconduct[.]"
On November 10, 2015, the MCPO custodian of government records 4
"partially denied" Verrecchio's request in a form response that stated: "The
records requested by you are not being provided because the document or
documents are not public records as provided by law, as noted below [.]" The
form thereafter lists thirty categories that purportedly correlate to a statutory
basis to deny access under OPRA. The custodian placed a check-mark next to
the categories denoted: "criminal investigatory records" and "pension and
personnel records." However, the MCPO released a copy of a 1996 criminal
complaint charging plaintiff with second degree official misconduct, N.J.S.A.
4
"'Custodian of a government record' means . . . the officer officially designated
by formal action of that agency’s director . . . ." N.J.S.A. 47:1A-1.1.
A-1669-16T1
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2C:30-2(a). This document also included plaintiff's complete social security
number.5
Plaintiff alleges that Verrecchio disseminated the information contained
in the 1996 criminal complaint to individuals employed with the Joint Base
McGuire-Dix-Lakehurst Police Department. Verrecchio's attorneys' Cannon
and Tully (who are also named as defendants in this action) distributed the
information contained in the 1996 criminal complaint to several news
organizations and conducted interviews with news organizations regarding those
charges.
II
We will first address the part of the trial court's decision that is based on
the TCA notice of claim. Count IX of plaintiff's verified complaint specifically
names the MCPO as a defendant and incorporates by reference all of the factual
allegations reflected in the previous 105 paragraphs. The legal theories of
liability in Counts I through VIII of the complaint are all based on the following
common law torts: Count I Defamation; Count II Invasion of Privacy-False
Light; Count III Invasion of Privacy-Intrusion on Seclusion; Count IV Invasion
5
N.J.S.A. 47:1A-1.1 expressly excludes from the definition of "government
record," and thus from public disclosure, "that portion of any document which
discloses the social security number. . . ."
A-1669-16T1
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of Privacy-Publicity of Private Matters; Count V Intentional Infliction of
Emotional Distress; and Count VI Intentional Interference with Prospective
Economic Advantage.6
Count IX specifically names the MCPO. Paragraph 112 states: "As a
direct and proximate result of Defendant's conduct, [K.S.] has been impaired in
his ability to earn a living and has sustained and will continue to sustain loss of
income in amounts that will be established at trial." The clear implication of
these allegations is to provide a legal basis to seek compensatory and punitive
damages against the MCPO, based on the common law torts in Counts I through
VI.
Pursuant to the TCA, "[n]o action shall be brought against a public entity
. . . under this act unless the claim upon which it is based shall have been
presented" to the appropriate public entity in a written notice. N.J.S.A. 59:8-3.
The written notice must include specific information, such as a general
description of the injury, damage or loss incurred, and the amount claimed.
N.J.S.A. 59:8-4. The notice must also be signed by the claimant or a person on
his behalf, N.J.S.A. 59:8-5, and filed with the public entity within ninety days
of the accrual of the claim, N.J.S.A. 59:8-8. "If notice is not timely served in
6
The complaint does not include a Count VII.
A-1669-16T1
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accordance with the statute, '[t]he claimant shall be forever barred from
recovering against a public entity.'" Jones v. Morey's Pier, Inc., 230 N.J. 142,
154 (2017) (quoting N.J.S.A. 59:8-8). However, the "'harshness' of the ninety-
day requirement is alleviated by the statutory provision that allows the late filing
of a notice of a claim under limited circumstances" in the trial judge's discretion,
if, within one year of the accrual of the tort claim, the claimant shows
extraordinary circumstances for failing to file a timely notice of claim. D.D. v.
Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013); N.J.S.A. 59:8-8;
N.J.S.A. 59:8-9. The Supreme Court recently reaffirmed "that an attorney's
inattention to a file, or even ignorance of the law, [does not equate] with
extraordinary circumstances for tort claims purposes." O'Donnell v. New Jersey
Tpk. Auth., 236 N.J. 335, 350 (2019) (quoting D.D., 213 N.J. at 156).
Here, all of the tort claims plaintiff asserted against the MCPO accrued on
November 10, 2015, when the MCPO custodian of government records under
OPRA released plaintiff's expunged records. Under N.J.S.A. 59:8-8, plaintiff
had ninety days, or until February 8, 2016, to file a tort claim notice. It is
undisputable that plaintiff filed this complaint against the MCPO on March 15,
2016 and an amended complaint on April 8, 2016. Plaintiff never filed the notice
required under N.J.S.A. 59:8-8.
A-1669-16T1
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Plaintiff has argued he is not legally required to file such notice because
his claim against the MCPO under the expungement statute does not fall within
the TCA. Plaintiff also argues that the notice provisions of the TCA are
inapplicable here because the release of the expunged records involved only a
ministerial function by the MCPO custodian of government records. According
to plaintiff, the TCA does not provide immunity to public entities for a failure
to carry out ministerial duties. Plaintiff also argues that the notice provision of
the TCA is not applicable to his claim for injunctive relief to enforce a court
order.
These arguments lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). All of the common law claims listed in Counts I
through VI are indisputably subject to the TCA. Furthermore, plaintiff's claims
predicated on the expungement statute are not legally cognizable. The
expungement statute does not contain a provision that enables an individual
aggrieved by the unauthorized disclosure of expunged records to file a private
cause of action to recover civil damages from the public entity that failed to
preserve the confidentiality of expunged records. The only enforcement
mechanism the Legislature provided is in N.J.S.A. 2C:52-30, which states:
Except as otherwise provided in this chapter, any
person who reveals to another the existence of an arrest,
A-1669-16T1
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conviction or related legal proceeding with knowledge
that the records and information pertaining thereto have
been expunged or sealed is a disorderly person.
Notwithstanding the provisions of [N.J.S.A.] 2C:43-
3[7], the maximum fine which can be imposed for
violation of this section is $200.00.
Finally, the record shows plaintiff's complaint does not contain a claim
under the Identity Theft Statute in the CFA. See N.J.S.A. 56:8-161 to -166.1.
Affirmed.
7
N.J.S.A. 2C:43-3(d) authorizes the court to impose a maximum fine of $500
as part of a sentence for a person convicted of a disorderly persons offense.
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