ESTATE OF SAULO DEL ROSARIO et al v. PATERSON POLICE DEPARTMENT et al
OPINION. Signed by Judge William J. Martini on 3/20/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ESTATE OF SAULO DEL ROSARIO, Deceased, by
its Administrators Ad Prosequendum, CARMEN
GONZALEZ (a/k/a CARMEN DOLORES
PAYERO GONZALEZ) and YUNIOR J. REYES
GONZALEZ (a/k/a YUNIOR J. REYES);
CARMEN GONZALEZ, Individually; YUNIOR J.
REYES GONZALEZ, Individually; STEVEN
JAVIER DEL ROSARIO, a minor by his
Guardians, CARMEN GONZALES AND YUNIOR
J. REYES GONZALES; ELVIO DEL ROSARIO;
DIOMEDES DEL ROSARIO, Individually;
DIOSMENDY DEL ROSARIO, YANIRIS DEL
ROSARIO, by their Guardian, DIOMEDES DEL
ROSARIO; LEIDY DEL ROSARIO; HONEY DEL
ROSARIO; MARTHA DEL ROSARIO;
CARMELINA DEL ROSARIO, EMELY DEL
ROSARIO, MISAEL DEL ROSARIO, and
MIGUEL DEL ROSARIO by their Guardian,
MARTA DEL ROSARIO,
PATERSON POLICE DEPARTMENT, CITY OF
PATERSON, PATERSON POLICE OFFICER
MARJ KUSH, PATERSON POLICE OFFICER
ANGEL SANDOVAL, PATERSON POLICE
OFFICER ANTHONY PETRAZZUOLO,
PATERSON POLICE SERGEANT TROY
BAILEY, PATERSON POLICE OFFICER
ROBERT CHALLICE, PATERSON POLICE
OFFICER GIUSEPPE CIARLA, SUPERVISORY
OFFICALS I-X (names presently unknown),
OFFICERS I-X (names presently unknown),
ENTITIES I-X (names presently unknown),
Civ. No. 14-5167
In August 2014, the Estate of Saulo Del Rosario and individual family
members brought this action under 42 U.S.C. § 1983 against the Paterson Police
Department and several individual Paterson police officers (“Defendants”). On
November 3, 2016, the Court denied in part and granted in part Defendants’ motion
to dismiss the Amended Complaint (the “Complaint”) pursuant to Federal Rule of
Civil Procedure 12(c). ECF No. 77. Defendants now move pursuant to Local 7.1(i)
for reconsideration as to Count Nine of the Complaint, Plaintiffs’ claim for
negligent infliction of emotion distress. For the following reasons, the motion is
On September 1, 2012, Saulo Del Rosario was killed in a confrontation with
police in his home in Paterson, New Jersey. A number of family members, including
Saulo’s six nieces and nephews, were present at the home when Saulo was shot and
killed. The family members also witnessed officers remove Saulo’s body from the
Plaintiffs filed their twelve-count Complaint on June 16, 2015. ECF No. 35.
Count Nine, the subject of this motion, alleged negligent infliction of emotional
distress (“NIED”). This tort enables bystanders—those who witness a victim’s death
or grievous injury— to recover for extreme emotional harm, if they share an
“intimate, familial” relationship with the victim. Portee v. Jaffee, 417 A.2d 521, 527
(N.J. 1980). Defendants interpret “intimate, familial” relationships to include only
parental and fraternal relationships, and to exclude a victim’s nieces and nephews.
See ECF No. 63. Defendants thus moved to dismiss Count Nine as it pertained to
Saulo’s six nieces and nephews, Diosmendy, Yaniris, Carmelina, Emely, Misael, and
Miguel Del Rosario. Id. On November 3, 2016, the Court denied this part of the
Defendants’ motion to dismiss, finding that New Jersey case law does not
categorically bar nieces and nephews from stating a claim for NIED. Defendants
now ask the Court to reconsider its decision pursuant to Local Rule 7.1(i).
A motion for reconsideration may be granted only if: (1) there has been an
intervening change in the controlling law; (2) evidence not available when the Court
issued the subject order has become available; or (3) it is necessary to correct a clear
error of law or fact to prevent manifest injustice. Max’s Seafood Café by Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v.
CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Reconsideration
under 7.1 is appropriate if a court “overlooks” controlling law. See In re Lord Abbett
Mut. Funds Fee Litig., 417 F. Supp. 2d 624, 627 (D.N.J. 2005) (“When a matter was
considered by the Court, it was not “overlooked.”). A motion for reconsideration
should not be treated as an appeal of a prior decision. United States v. Compaction
Sys. Corp., 88 F. Supp. 2d 339, 345–46 (D.N.J. 1999) (“Disagreement with [a
court’s] analysis . . . fails to establish a basis for reconsideration.”).
To state a claim for NIED, a plaintiff must show, inter alia, that the victim
and plaintiff shared “a marital or intimate, familial relationship.” Portee v. Jaffee,
417 A.2d 521, 528 (1980). In this case, the Court found that Saulo’s nieces and
nephews, four of whom lived with Saulo in the house where the shooting took
place, adequately pleaded a prima facie case of NIED. ECF No. 77. In doing so, the
Court rejected Defendant’s assertion that nieces and nephews are categorically
excluded from the pool of NIED plaintiffs. Defendants’ motion for reconsideration
argues that the Court’s interpretation of “intimate, familial relationship” was a
“clear error of law.” The motion for reconsideration is DENIED.
Although no court has addressed whether a niece or nephew may satisfy
NIED’s intimate-or-familial-relationship requirement, the New Jersey Supreme
Court has explicitly directed courts not to rely on “hastily–drawn ‘bright line
distinctions’” to determine whether an “intimate, familial relationship” exists.
Dunphy, 642, A.2d at 208, citing People Express Airlines, Inc. v. Consolidated Rail
Corp., 494 A.2d 107 (1985). Instead, courts must evaluate whether a particular
relationship bares “the presence of deep, intimate, familial ties between the plaintiff
and the physically injured person that makes the harm to emotional tranquility so
serious and compelling.” Dunphy, 642 A.2d at 374, quoting Portee, 417 A.2d at
526-27. Dunphy articulated a “flexible” standard that considers a number of factors,
including “the duration of the relationship, the degree of mutual dependence . . . the
extent and quality of shared experience . . . [and] their emotional reliance on each
other.” Id. at 112.
In light of the Dunphy standard, the Court found that Plaintiffs adequately
pleaded the presence of “intimate, familial ties.”1 No cases cited by Defendants
undercut this holding. If Defendants disagree with the Court’s holding, they are free
to appeal. United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J.
1999) (“Mere disagreement with a court's decision normally should be raised
through the appellate process and is inappropriate on a motion for reargument.”).
To be clear, the Court did not hold that nieces and nephews “presumptively qualif[y]” for
NIED standing. Goncalvez for Goncalvez v. Patuto, 458 A.2d 146, 151 (N.J. App. Div.
1983). The Court simply declined to hold that nieces and nephews are categorically barred
from seeking relief.
For the reasons stated above, Defendants’ motion for reconsideration under
Local Rule 7.1(i) is DENIED.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
March 20, 2017
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