Opinion
DOCKET NO. A-4328-12T1
07-01-2014
PAULA FABRIS and DANILO LIOY, Plaintiffs-Appellants, v. TRAFFIC SHOES, BOROUGH OF PARAMUS, POLICE OFFICER JACK CACAMIS, POLICE DETECTIVE CRAIG MCELLEN, BANK OF AMERICA and VIOLET SMITH, A FICTITIOUS NAME, Defendants-Respondents, and GAETANO CANZANO, POLICE SERGEANT JOE SMITH (FICTITIOUS NAME) and GARDEN STATE PLAZA, Defendants.
Thomas L. Curcio, attorney for appellants. Lamb Kretzer, L.L.C., attorneys for respondent Traffic Shoes (Robert D. Kretzer, on the brief). Giblin & Giblin, attorneys for respondents Borough of Paramus, Police Officer Jack Cacamis and Police Detective Craig McEllen (Brian T. Giblin, on the brief). Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys for respondents Bank of America and Violet Smith (Robert C. Neff, Jr., of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Koblitz and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6450-11.
Thomas L. Curcio, attorney for appellants.
Lamb Kretzer, L.L.C., attorneys for respondent Traffic Shoes (Robert D. Kretzer, on the brief).
Giblin & Giblin, attorneys for respondents Borough of Paramus, Police Officer Jack Cacamis and Police Detective Craig McEllen (Brian T. Giblin, on the brief).
Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys for respondents Bank of America and Violet Smith (Robert C. Neff, Jr., of counsel and on the brief). PER CURIAM
Plaintiff Paula Fabris appeals from two December 7, 2012 orders dismissing her claims of false arrest and imprisonment, malicious prosecution, and negligence against defendants Traffic Shoes, as well as Bank of America and Violet (the bank defendants) at the summary judgment stage, before plaintiff's request for further discovery was considered. She also appeals from a March 8, 2013 order dismissing all but count four against the Borough of Paramus, Paramus Police Officer Jack Cacamis and Paramus Police Detective Craig McEllen (the municipal defendants). Plaintiff was arrested and incarcerated for hours for buying shoes with a counterfeit $100 bill that was ultimately deemed authentic. We affirm the 2013 order because, as stated by the motion judge, plaintiff did not allege sufficient damages to survive the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Because the motion judge mistakenly concluded discovery had ended, overlooking plaintiff's timely motion to extend discovery, we reverse the 2012 orders and remand for further proceedings.
In our opinion, we refer solely to Paula Fabris as the plaintiff, although we recognize her husband, plaintiff Danilo Lioy, filed a derivative claim for loss of consortium.
We refer to the teller as Violet as her last name is unknown.
The one remaining count against the municipal defendants was settled, and a stipulation of dismissal filed on June 28, 2013. The orders dismissing Garden State Plaza and Gaetano Canzano have not been appealed and are therefore not before us.
Plaintiff and her husband, residents of Argentina, were visiting relatives in New Jersey in the fall of 2010. On September 4, 2010, plaintiff, accompanied by her sister and their three children, used a $100 bill to purchase two pairs of shoes for $35 at Traffic Shoes in the Westfield Garden State Plaza, in Paramus. The $100 bill passed the traditional marker test for authenticity at the register, but the cashier brought the bill to the manager's attention due to its peculiar appearance. Canzano, the store manager, also determined the $100 bill appeared and felt odd - it was aesthetically akin to older bills, but seemed to have come right off the presses - and, on the advice of his district manager, he took the bill to Bank of America where he asked teller Violet whether it was counterfeit. Canzano claims that Violet confirmed the bill was fake and instructed Canzano to alert mall security, who in turn contacted the police.
Officer Cacamis arrived at Traffic Shoes, inspected the $100 bill, and subsequently arrested plaintiff in front of her sister and the children. The police then transported plaintiff to the police station and confined her for hours. She was unable to communicate due to her poor knowledge of the English language. Plaintiff alleges that the municipal court judge directed that she be released because the police had plaintiff's passport in hand, but the police did not do so.
Detective McEllen then contacted the United States Secret Service about the bill. Secret Service Special Agent Sean Glynn informed Detective McEllen that, in light of plaintiff's recent arrival from Argentina, he would respond to the police department and confirm whether the bill was counterfeit because a high volume of quality, counterfeit United States currency was being manufactured in South America. In the interim, plaintiff was charged with obtaining merchandise using an instrument obtained through a criminal enterprise, N.J.S.A. 2C:21-25(b). Canzano, believing that "in order to get the merchandise back, we would have to file a complaint," signed a complaint. The police report reveals that the police were under the impression the bill had failed the marker test, although Canzano claims he told the police that the bill had passed the test.
It appears that plaintiff was originally charged under N.J.S.A. 2C:21-25(a).
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Hours later, Agent Glynn arrived from Philadelphia and deemed the bill genuine. Plaintiff was then released, and the criminal complaint against her dismissed. According to a psychiatrist's clinical history summary, she now suffers from post-traumatic stress disorder.
Summary judgment is appropriate only if no genuine issues of material fact exist in light of all pleadings, depositions, answers to interrogatories and admissions to file, in conjunction with any affidavits. R. 4:46-2(c). Without making credibility determinations, courts are to consider the evidence "in the light most favorable to the non-moving party" to determine whether that evidence would be "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Only where there exists "a single, unavoidable resolution of the alleged disputed issue of fact [should the issue] be considered insufficient to constitute a 'genuine' issue of material fact for" summary judgment purposes. Ibid.; see also Suarez v. Eastern Intern. College, 42 8 N.J. Super. 10, 27 (App. Div. 2012). Thus, the non-movant party's mere identification of a disputed fact of an insubstantial nature will not defeat a motion for summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).
We are governed by that same standard. W.J.A. v. D.A., 210 N.J. 229, 237 (2012).
The motion judge's statements of reasons accompanying the December 7, 2012 orders mistakenly indicate that the discovery end date had expired and no motion to extend discovery was filed prior to the judge's summary judgment disposition. All parties agree that plaintiff submitted a motion to extend discovery, necessitated by the addition of the bank defendants, that was consented to by all defendants and carried by the judge to December 7, 2012. At the conclusion of the motion argument on December 7, 2012, the judge, in response to plaintiff's request, said that the motion to extend discovery would be addressed in the forthcoming order. In the statements of reasons attached to the orders, however, the judge stated that no such motion was pending before the court. Thus, at the time the judge granted summary judgment to Traffic Shoes and the bank defendants, discovery was not complete. We therefore reverse the grant of summary judgment to these defendants on that basis.
We also note that the alleged circumstances suggest only one feasible cause of action against these defendants: malicious prosecution. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400-03 (2009). They may not be held liable to plaintiff for any damages she sustained resulting from the filing of the criminal complaint and the arrest and detention unless plaintiff is able to establish all the factors necessary to support a malicious prosecution cause of action. See, Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003); Lind v. Schmid, 67 N.J. 255, 262 (1975) (listing the elements of malicious prosecution).
We affirm the March 8, 2013 order granting partial summary judgment to the municipal defendants, substantially for the cogent reasons expressed in the written attachment to the order. Plaintiff was unable to meet the verbal threshold requirement of the Tort Claims Act. Because pain and suffering damages may only be recovered against public entities for "permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600[]," N.J.S.A. 59:9-2(d) bars plaintiff's recovery from the municipal defendants for non-economic losses. See DelaCruz v. Borough of Hillsdale, 183 N.J. 149, 168 (2005) (holding that "false arrest/false imprisonment claims against public entities and employees must nevertheless meet the verbal threshold of the Tort Claims Act"). Plaintiff's treating doctor did not indicate she suffered from a permanent condition.
The motion judge allowed plaintiff to proceed against the municipal defendants on economic damages only, which were alleged only in count four, alleging the municipal defendants "false[ly] arrest[ed]" plaintiff "without basis or probable cause."
Affirmed in part and reversed in part and remanded to the trial court for further proceedings. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION