FERNANDEZ et al v. CITY OF JERSEY CITY et al
OPINION. Signed by Judge Kevin McNulty on 11/6/2017. (JB, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CARLOS FERNANDES and JEAN
Civ. No. 2:16-cv-07789-KM-JBC
CITY OF JERSEY CITY, STEVEN M.
FULOP, ANTHONY B. LEWIS, JOHN
AND JANE DOES (1-20), and ABC
KEVIN MCNULTY, U.S.D.J.:
Plaintiffs Carlos Fernandes and Jean Neimiller brought this action
against the City of Jersey City, Steven M. Fulop, and Anthony B. Lewis. The
original complaint alleged that the plaintiffs obtained a construction permit
and began remodeling work on their home, but the City halted the work, saying
that plaintiffs had not obtained a required permit from the Historic
Preservation Committee. Since siding had already been removed from the
home, it suffered weather damage in the ensuing months. When Fernandes
complained about the situation, City officials alleged defamed and falsely
Defendants moved to dismiss the original complaint. I dismissed
plaintiffs’ defamation and negligence claims; the rest of the complaint survived.
Plaintiffs then filed an amended complaint, which reasserts the defamation
claim and reformulates their tort claim under New Jersey state law. Now before
the court is defendants’ motion to dismiss those two amended claims. (ECF no.
A. Plaintiffs’ Interrupted Remodeling Efforts
Plaintiffs Carlos Fernandes and Jean Neimiller are a married couple who
own and reside at a home (the “Property”) located in the West Bergen—East
Lincoln Park Historic District neighborhood of Jersey City, New Jersey. (1AC
1, 16). Fernandes has worked as an artist, design professional, and stylist.
13). Since moving to Jersey City many years ago, he has maintained
many of his New York City clients and developed new ones. (1AC
works with clients from the first floor of the Property, providing hair styling,
makeup, and design consultations. (1AC
The three named defendants are the City of Jersey City (“Jersey City” or
the “City”), Steven M. Fulop, the Mayor of Jersey City, and Anthony B. Lewis, a
sergeant in the Jersey City Police Department. (1AC
On or around July 20, 2015, Power Home Remodeling Group, Inc.
(“Power HRG”), a remodeling contractor, applied to the Building Department for
a permit to remove wood siding and install vinyl siding on plaintiffs’ Property.
19). On August 1, 2015, pursuant to a Jersey City Ordinance, plaintiffs’
neighborhood became a newly designated historic district. (1AC
For purposes of this motion to dismiss, the allegations of the First Amended
Complaint are taken as true. Citations to certain record items are abbreviated as
Complaint (ECF No. 1)
First Amended Complaint (ECF No. 20)
Def. Br. = Defendants’ Memorandum of Law in Support of Defendants’ Motion
to Dismiss Counts IV and V of Plaintiffs’ First Amended Complaint (ECF No. 23)
P1. Br. = Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to
Dismiss Counts IV and V of Plaintiffs’ First Amended Complaint Pursuant to Fed. R.
Civ. P. 12(b)(6) (ECF No. 24)
Feb. 8 Letter
Plaintiffs’ February 8, 2016 Letter to Corporation Counsel (ECF
March 25 Letter
(ECF NO. 24-1)
Plaintiffs’ March 25, 2016 Letter to Corporation Counsel
On August 8, 2015, the Building Department approved the Construction
Permit Application. (1AC
20). On August 25, 2015, Power HRG began work
on the Property, work which included removal of the existing wood siding. (1AC
On August 29, 2015, officials from the Building Department and the
Historic Preservation Commission (“HPC”) came to the Property and demanded
that plaintiffs and Power HRG stop working. (1AC
24). These officials stated
that Power HRG lacked authorization for the work. (1AC
25). Jersey City
police officers also arrived at the Property and, unprovoked, threatened to
arrest Fernandes. (1AC
26). The officials gave no explanation for their
demands at the time. (1AC
Several days later, on September 3, 2015, the Building Department
issued a formal “Stop Work Order.” (1AC
27). That Order cited plaintiffs’
failure to obtain the HPC’s approval before renovating the Property. (1AC
Power HRG stopped its work, leaving three quarters of the Property without
28). Because the Building Department also prohibited the
plaintiffs from covering their home by other means, the walls remained
Pernandes went to City Hall to determine what had happened, but
“Jersey City refused to provide any answers to the Plaintiffs and refused to
acknowledge that the Building Department gave Power HRG a permit to begin
the renovations.” (1AC
30). On or about October 16, 2015, plaintiffs’ counsel
contacted Jeremey Farrell, corporation counsel for the City of Jersey City, who
suggested that plaintiffs’ counsel contact attorneys for the Planning Board and
the HPC. (1AC
31). Plaintiffs contacted both attorneys via email, urgently
requesting authorization to move forward with construction or at least to allow
them to cover their home before the forthcoming winter. (1AC
On October 19, 2015, James LaBianca, assistant corporation counsel
responsible for the HPC, responded to plaintiffs’ counsel’s email and offered to
meet with them. (1AC
34). On or about October 23, 2015, while they were
still trying to arrange a meeting, LaBianca wrote to plaintiffs’ counsel, stating,
“HP[C] has no objection to your client installing temporary but sufficient, longlasting preservation measures to protect the property, including the installation
of Tyvek or some other proper board material.” (1AC
36). On October 27,
2015, plaintiffs’ counsel responded, seeking clarification on what preservation
methods were authorized and again requesting a meeting. (1AC
never responded to the October 27, 2015 correspondence. (1AC
In November 2015, plaintiffs took measures to protect the Property from
the winter weather, which included covering the Property with plastic tarp.
39). “Despite these efforts, the Property suffered substantial damage,
including but not limited to water damage throughout the Property.” (1AC
40). At that point, plaintiffs decided to take no further action until warmer
weather arrived so that the Property could dry out and they could assess the
B. Alleged Disparate Treatment
Plaintiffs allege that other property owners on their street have made
alterations to their properties without obtaining permits or HPC authorization.
42). These alterations have included disfavored alterations, such as
vinyl siding, and also alterations that are strictly prohibited, such as metal
frame windows. (1AC
42). One couple on their street were allowed to alter
their property without HPC approval, allegedly because they “were married by
Mayor Fulop and
were significant supports of Mayor Fulop’s campaign.”
C. The Plaintiffs’ Attendance at Public Meetings
In or around January 2016, plaintiffs began attending City Council
meetings and public meetings organized by Mayor Fulop. (1AC
Fernandes spoke at these meetings about the condition of his Property and
“the intimidation and disrespectful treatment he and his wife suffered at the
hands or the defendants. (1AC
45). After one meeting, City Council President
Rolando Lavarro “accosted Mr. Fernandes and demanded Mr. Fernandes meet
with him the next day.” (1AC
46). On January 29, 2015, Fernandes and his
attorney met with Mr. Lavarro, who promised to assist the plaintiffs but never
did so. (1AC
During a February 3, 2016 public meeting, although Fernandes “was not
causing any disturbance,” police department officers in plain clothes “forcibly
grabbed [him] by the arms, lifted him from his feet and illegally ejected [him]
from the public meeting at the behest of Mayor Fulop.” (1AC ¶jj 48-50).
Plaintiffs’ counsel then sent a February 8, 2016 letter to Jeremey Farrell.
¶ 51). In that letter, plaintiffs’ counsel included an Open Public Record
Act (“OPRA”) request for the names of the officers who had removed Fernandes
from the meeting and an explanation for the removal. (1AC
stated that Fernandes had been physically injured
suffered emotional injury. (1AC
¶ 51). The letter
and that both plaintiffs had
¶ 51). Additionally, the letter stated:
Mayor Fulop made several untrue statements to the
audience in attendance when asked why he had Mr.
Fernandes removed. First, it is untrue that my client
attended “every single one of these meetings”; as
Mayor Fulop stated. It is untrue that my client made a
“disruption for twenty to thirty minutes” or “five to ten
minutes” at any meeting. The City never “cited for
violations” his property. To date, Mr. Fernandes has
not received any notice of any violations against his,
his wife or their property. The Mayor should recant
these slanderous. [sic}
Mr. Fernandes has every right to attend any and every
public meeting held by Mayor Fulop and he will
continue do so. There is no basis in law or in fact to
deny him his right to attend these meetings.
Obviously, this situation is extremely distressing to my
clients. Not only has the City ignored their attempts to
resolve this issue amicably, now it seems the City has
an agenda to assassinate the character of Mr.
Fernandes and prohibit him from exercising his rights
as a citizen of Jersey City. The City has gone to the
length of physically assaulting my client to achieve
this agenda. Such behavior is unacceptable.
¶ 51); (Feb. 8 Letter). The letter requested a meeting with Farrell, but
Plaintiffs’ counsel did not receive any response. (1AC
Plaintiffs eventually received a Use of Force Report, but it provided
inadequate information. (1AC
53-55). This prompted plaintiffs’ counsel, by a
letter dated March 25, 2016, to demand that the City Clerk provide a more
adequate response. (1AC
55). The March 25, 2016 letter also raised
grievances about Mayor Fulop’s alleged behavior toward Fernandes during a
March 14, 2016 public meeting. (1AC
55-56). This letter stated:
On March 14, 2016, I attended a public meeting in
Ward F at the Bethune Center with Carlos Fernandes.
There, my client asked the Mayor a question, to which
the Mayor again answered that my client is a
disgruntled person because his property had been
cited for numerous violations by the City, and that the
matter is currently the subject of litigation. Again, to
date, Mr. Fernandes has not received any notice of any
violations against him, his wife or their property. The
Mayor knows his statements are untrue. The Mayor
must be aware of the true circumstances in this
matter because after he made the untrue statements
at the February 3, 2016 meeting in Ward A I wrote to
you informing you that his statements were untrue.
The Mayor’s behavior toward my client is
unacceptable. Instead of seriously addressing
legitimate issues my client has with the City’s handling
of abruptly halting construction at his home after the
City issued a valid permit for the same construction
(and the City’s refusal to allow my client to go forward
with construction resulting in significant damage to
his property), the Mayor is waging a smear campaign
against my client in an attempt to minimize his claims
against the City.
56); (March 25 Letter). There has been no response to this
57). Plaintiffs claim that Fernandes did not attend all
the public safety meetings and did not cause a disruption. (1AC
The February 3, 2016 and March 14, 2016 incidents were videotaped
and broadcast on the internet. (1AC
59). Mayor Fulop was allegedly aware he
was being videotaped when he made his statements and ordered the police to
remove Fernandes. (1AC
59). Fernandes alleges that these incidents caused
him to lose clients and have diminished his business substantially. (1AC
D. The Tort Claim Notice and Complaint
On or around November 25, 2015—after the work had been shut down
and the Property had sustained damage, but before the plaintiffs began
attending public meetings—plaintiffs filed a Tort Claim Notice (“TCN”). (lAO
43). On or about April 18, 2016, plaintiffs’ counsel received a response to the
TCN from Jersey City, which disclaimed liability. (1AC
On September 22, 2016, the plaintiffs filed a civil complaint in the
Superior Court of New Jersey, Law Division, Hudson County. (ECF No. 1). The
defendants removed the action to this Court on October 24, 2016. (Id.). The
original complaint contained six counts—four under 42 U.S.C.
1983 and two
under state tort law:
Count 1: Violation of the plaintiffs’ right to Equal Protection under
the Fourteenth Amendment, pursuant to 42 U.S.C.
(“Section 1983”) (Compl.
56-66) (against the City);
Count 2: Violation of the plaintiffs’ right to procedural due process
under the Fourteenth Amendment, pursuant to Section 1983 (id.
67-76) (against the City);
Count 3: Violation of the plaintiffs’ First Amendment rights,
pursuant to Section 1983 (Compl.
77-82) (against the City,
Mayor Ftz lop in his individual capacity, and Anthony B. Lewis in his
individual and official capacities)
Count 4: Unlawful seizure and false arrest, in violation of the
Fourth Amendment, pursuant to Section 1983. (Id.
(same parties as Count 3)
Count 5: Defamation by slander. (Compl.
92-98) (against Mayor
Fuiop in his individual capacity)
Count 6: Negligence. (Id.
99-104) (against the City)
On November 7, 2016, defendants moved to dismiss the complaint. (ECF
No. 6). On June 27, 2017, I dismissed Counts 2, 5, and 6. Femandes v. City of
Jersey City, No. 16-7789, 2017 WL 2799698 (D.N.J. July 27, 2017). Count 5
was dismissed because the plaintiffs had not stated facts suggesting that they
had suffered an economic or pecuniary loss. Id. at 18.
On August 16, 2017, plaintiffs filed the First Amended Complaint, which
contains five counts:
Count 1: Violation of the plaintiffs’ right to Equal Protection under
the Fourteenth Amendment, pursuant Section 1983. (1AC
(against the City);
Count 2: Violation of the Plaintiffs’ First Amendment rights, pursuant
to Section 1983. (1AC
74-79) (against the City, Mayor Fulop in his
individual capacity, and Anthony B. Lewis in his individual and official
Count 3: Unlawful seizure, in violation of the Fourth Amendment,
pursuant to Section 1983. (1AC
80-88) (same parties as Count 2)
Count 4: Defamation by slander. (1AC ¶31 89-95) (against Mayor
Count 5: Unauthorized activities of the Building Department, N.J.
40:55D-111. (1AC ¶31 96-104) (against the City)
Counts 1 through 3 correspond to Counts 1, 2, and 4 of the original complaint.
(Count 3 of the original complaint has been dropped.) Counts 4 and 5 are
amended versions of the original complaint’s Counts 5 and 6.
On August 16, 2017, Defendants moved to dismiss Counts 4 and 5 of the
First Amended Complaint. (Def. Br.).
LEGAL STANDARD ON MOTION TO DISMISS
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if it fails to state a claim upon which relief can be granted. The defendant,
as the moving party, bears the burden of showing that no claim has been
stated. Animal Sci. Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469
n.9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in
the complaint are accepted as true and all reasonable inferences are drawn in
favor of the plaintiff. New Jersey Carpenters & the Trs. Thereof a Tishman
Constr. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell AtI. Corp. a Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also West Run Student Hous. Assocs., LLC
Huntington Nat’l Bank,
712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
While “[t]he plausibility standard is not akin to a ‘probability requirement’
asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
A. Count 4: Defamation by Slander
Defendants claim that the plaintiffs’ common law defamation claim
should be dismissed for failure to file a Tort Claim Notice (“TCN”). Under the
New Jersey Tort Claims Act, when asserting a tort claim against a public entity,
“The claimant shall be forever barred from recovering against a public entity or
public employee if
[t]he claimant failed to file the claim with the public entity
within 90 days of accrual of the claim except as otherwise provided in [the next
section2]....” N.J. Stat.
59:8-8. The next section provides an exception to the
Section 59:8-9 provides, in full,
A claimant who fails to file notice of his claim within 90 days as provided
in section 59:8-8 of this act, may, in the discretion of a judge of the
ninety-day notice rule. It permits a claimant to appeal to a judge of the
Superior Court to file a late claim because of “sufficient reasons constituting
extraordinary circumstances.” N.J. Stat.
The New Jersey Torts Claims Act constitutes a limited waiver of the
State’s sovereign immunity. This waiver is narrowly construed. See D.D. u.
Unit’. of Med. & Dentistry of New Jersey, 61 A.3d 906, 908 (N.J. 2013). The
guiding principle is that “immunity from tort liability is the general rule and
liability is the exception.” Id. When adopting this waiver, the New Jersey
legislature directed that parties suing public entities “must comply with strict
requirements for notifying and suing those entities.” Feinberg u. State Dep’t of
Enuti. &ot., 644 A.2d 593, 596-97 (N.J. 1994). As the Supreme Court of New
Jersey has explained, “[t]he Legislature’s waiver of sovereign immunity remains
a limited one and we are not free to expand that waiver beyond its statutorilyestablished boundaries. Nor can we permit sympathy for a particular plaintiff
to obscure the statutory standard to the point of obliterating it.” D.D., 61 A.3d
Plaintiffs acknowledge that they did not file a TCN within ninety days of
the alleged defamation. (P1. Br. 4). Plaintiffs argue, however, that their claim
should be permitted because (1) they should be permitted to file a late claim
under Section 59:8-9 and (2) they substantially complied with the TCN by
Superior Court, be permitted to file such notice at any time within one
year after the accrual of his claim provided that the public entity or the
public employee has not been substantially prejudiced thereby.
Application to the court for permission to file a late notice of claim shall
be made upon motion supported by affidavits based upon personal
knowledge of the affiant showing sufficient reasons constituting
extraordinary circumstances for his failure to file notice of claim within
the period of time prescribed by section 59:8-8 of this act or to file a
motion seeking leave to file a late notice of claim within a reasonable time
thereafter; provided that in no event may any suit against a public entity
or a public employee arising under this act be filed later than two years
from the time of the accrual of the claim.
sending two letters to corporation counsel. (Id. at 4-5). New Jersey courts have
recognized substantial compliance as an excuse for failing to meet the ninetyday deadline. See, e.g., Abel v. City of Ati. City, 549 A.2d 894 (N.J. Super. Ct.
App. Div. 1988); Dambro v. Union
Park Comm’n, 327 A.2d 466 (N.J. Super.
Ct. Law Div. 1974).
1. Extraordinary Circumstances
Plaintiffs will not be permitted to file a late claim under section 59:8-9
because there are not “extraordinary circumstances” justifying the lack of
TCN. The “extraordinary circumstances” language was not in the original act.
Amedio, 751 A.2d 1047, 1050-5 1 (N.J. 2000). It was added by
amendment in 1994 to “raise the bar for the filing of late notice from a ‘fairly
permissive standard’ to a ‘more demanding’ one.” Id. Express findings about
the presence of extraordinary circumstances must be made to justify an
untimely claim against a public entity. Leidy v. Cty. of Ocean, 942 A.2d 112,
116 (N.J. Super. Cit. App. Div. 2008) (citing Allen v. Krause, 703 A.2d 993 (N.J.
Super. Ct. App. Div. 1997)).
New Jersey courts have applied a demanding “extraordinary
circumstances” test. In Beauchamp, a plaintiff sought to file a claim after the
ninety-day deadline once she learned that her injuries were permanent. 751
A.2d at 1051. The Supreme Court of New Jersey denied her request to file a
late notice because she could have asserted her claim earlier, even though she
did not then recognize the full severity of her injuries. Id. In Leidy v. County of
Ocean, a motorcyclist was injured near the border between Ocean County and
Monmouth County. 942 A.2d at 114. He submitted appropriate and timely
notices to several public entities—but not Monmouth County, the public entity
I assume arguendo that this Court is authorized to exercise the discretion to
excuse late filing that is committed to a judge of the Superior Court.” See N.J. Stat.
Ann. 59:8-9, quoted in n.2, supra. (The plaintiff, of course, did not choose this federal
forum; the case arrived here via the defendants’ notice of removal.) Even assuming
that I possess such discretion, for the reasons express in this section 1 find that the
plaintiffs have not submitted facts sufficient to meet the “extraordinary
that actually maintained the property. Id. 115. The Appellate Division found
that this mistake did not constitute extraordinary circumstances. Id. at 1181g. In Blank u. City of Elizabeth, a claimant who did not speak English was not
permitted to file an untimely claim because he could have identified the
Elizabeth Water Department as the owner of the offending utility valve on
which he tripped. 742 A.2d 540 (N.J. 1999).
The circumstances in which courts have permitted plaintiffs to file
untimely claims against public entities are limited. Courts have found
extraordinary circumstances when a plaintiff was in an induced coma and was
not even expected to survive, Maher v. Cty. of Mercer, 894 A.2d 100 (N.J. Super
Ct. App. Div. 2006); when a state university clinical professor’s status as a
public employee was obscured by his apparent status as a private physician,
Zarghami, 731 A.2d 14, 24 (N.J. 1999); or when the original public
entity defendants thwarted plaintiffs efforts to ascertain the identity of the
public entities responsible. Feinberg z’. State Dep’t of Envtl. Prot., 644 A.2d 593,
597 (N.J. 1994).
Plaintiffs have not presented facts showing any extraordinary
circumstances that would allow this court to excuse the ninety-day deadline.
Plaintiffs knew the identity of the alleged tortfeasor and knew of his actions. No
extenuating circumstances are identified. Thus, plaintiffs will not be excused
from the TCN requirement under section 59:8-9.
2. Substantial Compliance
Second, plaintiffs will not be excused from the TCN requirement for their
alleged “substantial compliance.” As noted above, the legislature requires that
parties suing public entities “must comply with strict requirements for
notifying and suing those entities.” Feinberg, 644 A.2d at 596. Under NJ Stat.
59:8-4, a TCN must include:
a. The name and post office address of the claimant;
b. The post-office address to which the person presenting the claim
desires notices to be sent;
c. The date, place and other circumstances of the occurrence or
transaction which gave rise to the claim asserted;
d. A general description of the injury, damage or loss incurred so
far as it may be known at the time of presentation of the claim;
e. The name or names of the public entity, employee or employees
causing the injury, damage or loss, if known; and
f. The amount claimed as of the date of presentation of the claim,
including the estimated amount of any prospective injury,
damage, or loss, insofar as it may be known at the time of the
presentation of the claim, together with the basis of computation
of the amount claimed.
Plaintiffs argue that they should be excused from filing the TCN, alleging
that they “substantially complied” with the statute by sending two letters to the
City’s corporation counsel. (P1. Br. 4). These letters were filed on February 8,
2016 and March 25, 2016—within the ninety-day deadline. (Feb. 8 Letter);
(March 25 Letter).
The question, then, is whether these letters constituted substantial
compliance with the TCN requirement. New Jersey courts have permitted
plaintiffs who have not submitted TCNs to sue public entities where a defective
notice has in fact supplied all or substantially all of the required information:
Substantial compliance, however, is based on the notion that
substantially all of the required information has been given to
those to whom the notice should be given and that it has been
given in a form which should alert the recipient to the fact that a
claim is being asserted against the sovereign. To put it another
way, substantial compliance means that the notice has been given
in a way, which though technically defective, substantially satisfies
the purposes for which notices of claims are required.
Lameiro z’. W New York Rd. of Ed., 347 A.2d 377, 379 (N.J. Super. Ct, Law Div.
1975). Substantial compliance is assessed in relation to the four purposes of
the notice requirement:
(1) to allow the public entity at least six months for administrative
review with the opportunity to settle meritorious claims prior to
the bringing of suit;
(2) to provide the public entity with prompt notification of a claim
in order to adequately investigate the facts and prepare a
(3) to afford the public entity a chance to correct the conditions or
practices which gave rise to the claim; and
(4) to inform the State in advance as to the indebtedness or liability
that it may be expected to meet.
Beauchamp, 751 A.2d at 1052-53 (internal quotation marks omitted) (internal
citations omitted) (line breaks added). Thus technical notice defects will not
defeat a valid claim where the notice “substantially satisfies the purpose for
which the notices of claims are required.” Lebron a Sanchez, 970 A.2d 399,
404-06 (N.J. Super. Ct. App. Div. 2009).
In Lebron a Sanchez, a New Jersey court found that a plaintiff
“substantially complied” with the TCN requirements by submitting an
appropriate letter to the defendants. 970 A.2d 399 (N.J. Super. Ct. App. Div.
2009). The letter included plaintiffs name and address, provided the name and
address of her then-attorney, and stated:
On or about March 8, 1995, claimant Dinesha Mobley was leaving
school on her way home, when she attempted to go across the
street, claimant was struck by a[n] automobile at or near the 3000
block of River Road. In the city and county of Camden, there was
no crossing guard at the time of the accident.
Id. at 402. The letter also stated that plaintiff suffered a broken ankle, swollen
face, and various other injuries, for which she sought $1,000,000 in damages.
Id. The Appellate Division found that this letter substantially complied with the
enumerated TCN requirements in section 59:8-4 and satisfied the purposes of
the notice requirement. Id. at 408-09.
Similarly, in Ewing v. Cumberland County, a plaintiffs counsel sent
notice to Cumberland County that included plaintiffs name; counsel’s address;
the date of the incident; an allegation that Cumberland correctional officers
were involved; a request for preservation of surveillance tapes; and a statement
that plaintiff suffered “severe and permanent injuries” as a result of the
incident. 152 F. Supp. 3d. 269, 297 (DN.J. 2015). The court found that
plaintiff had substantially complied with the TCN requirements.4
A third case, Dambro v. Union County Park Commissioner, really rested on an
estoppel rationale. There, a plaintiff substantially complied with the TCN requirement
when he misidentified the public entity responsible because he had been misinformed
In the end, Lebron and Ewing found substantial compliance because the
plaintiffs substantially complied with each of the elements listed in section
59:5-4. Courts are not so willing to find substantial compliance with the TCN
requirement, however, where required elements are missing. For example, in
Ingram v. Township of Deptford, a plaintiff filed in municipal court a complaint
of excessive force against the township and police department. 911 F. Supp. 2d
289 (D.N.J. 2012). Plaintiff subsequently argued that she substantially
complied with the TCN requirements by filing this complaint. Id. at 294-96.
However, the court found that the complaint did not substantially comply
because it did not seek an amount of damages and did not indicate that it was
seeking damages. Id.; see also Platt v. Gonzalez, No. 9-6 136, 2011 WL 2413264
(D.N.J. June 9, 2011) (filing an “Internal Affairs Complaint” with the police
department does not substantially comply with notice of a civil tort claim where
there is no mention of damages).
Here, the plaintiffs’ February 8 and March 25 letters do not substantially
comply with the notice requirements in section 59:8-4. In their letters,
Plaintiffs claim that the Mayor “made several untrue statements” at a public
meeting and asked the Mayor to “recant these slanderous [sic].” (Feb. 8 Letter).
Fairly read, these letters constitute a protest and a demand for retraction. They
do not state an actual or threatened legal claim against the Mayor or the City.
Like the plaintiff in Ingram, the plaintiffs here do not state that they are
seeking damages, or state that they have suffered damages as a result of the
by the town’s tax assessor. 327 A.2d 466, 468 (N.J. Super. Ct. Law Div. 1974). The
plaintiff sent a letter to the tax assessor describing an accident and requesting
information about the owner of the property where the accident occurred. Id. The tax
assessor incorrectly identified the Union County Park Commission as the owner,
whereas the Borough of Watchung was the actual owner. Id. That plaintiff was
permitted to file a late claim because his failure was based on the tax assessor’s error.
Id. at 470. “The law should not permit a municipality to insulate itself from possible
tort liability by the mistake or inadvertence of its employee[sl.” Id. The court found
that the plaintiff had substantially complied with the both the substance and goals of
the TCN’s notice requirements.
alleged defamation. In short, these letters do not constitute notice of a claim of
defamation against the Mayor.
For this and other reasons these letters do not discharge the four
purposes of a notice of claim. They do not provide “substantially all of the
to those to whom the notice should be given
[w]ould alert the recipient to the fact that a claim is being asserted against the
sovereign.” Lamiero, 347 A.2d at 379. Defendants’ motion to dismiss Count 4 is
B. Count 5: Unauthorized Activities of the Building Department
Count 5 is a reformulation of a claim from the original complaint. In the
original complaint, plaintiffs claimed that Jersey City acted negligently by
issuing a permit for construction and then ordering plaintiffs to stop once the
siding was removed from their home. (Compl.
103). That original claim was
dismissed based on a New Jersey statute, N.J. Stat.
59:2-5, which immunizes
municipal entities from suit when they issue permits within their authority.
That statute provides as follows:
A public entity is not liable for an injury caused by the issuance,
denial, suspension or revocation of, or by the failure or refusal to
issue, deny, suspend or revoke, any permit, license, certificate,
approval, order, or similar authorization where the public entity or
public employee is authorized by law to determine whether or not
such authorization should be issued, denied, suspended or revoked.
Id. (emphasis added).
This time, the plaintiffs allege that the Building Department was not
acting in a manner authorized by law. Count 5 alleges that the Building
Department exceeded the bounds of its authority by issuing the permit. (P1. Br.
5-7). According to plaintiffs, only the Historic Preservation Commission held
this authority. (Id.). Thus, the argument runs, the Building Department
exceeded its legal authority and loses the protection of the statute.
According to their amended complaint, plaintiffs filed an application with
the Building Department on July 20, 2015. (1AC
19). On August 1, 2015,
plaintiffs’ neighborhood became a newly designated historic district. (1AC
17). Therefore, starting on August 1, 2015, Jersey City Municipal Ordinance
345-30 governed the issuance of permits in plaintiffs’ neighborhood. Ordinance
345-30 provides as follows:
No permit shall be issued or amended nor shall any construction,
alteration, minor alteration, ordinary maintenance and repair or
demolition be started on a landmark building nor on any sign,
building, structure, object, site or landscape feature within a
designated historic district, whether or not a construction permit is
required, prior to a filing of an application for review by the
Historic Preservation Commission or the issuance of either a
Certificate of Appropriateness or a Certificate of No Effect.
Jersey City, N.J., Mun. Code
§ 345-30. Nevertheless, on August 8, 2015, the
Building Department approved the Construction Permit Application. (1AC
The allegation, then, is that the Building Department lost the authority
to issue a permit for plaintiffs after August 1. That allegation is sufficient to
get past a motion to dismiss based on the Building Department’s immunity.
This statute, recall, immunizes departments from suits, but only “where the
public entity or public employee is authorized by law to determine whether or not
such authorization should be issued, denied, suspended or revoked.” N.J. Stat.
§ 59:2-5. Since (it is alleged) the Building Department was not authorized by
law to issue this permit when it issued the permit, it would not enjoy
immunity. Cf Twp. of Stafford u. Stafford Twp. Zoning Rd. of Adjustment, 711
A.2d 282 (N.J. 1998) (finding that a Zoning Board exceeded its authority in
hearing petitioner’s application and certi1’ing his use when the petitioner did
not comply with notice requirements).
In their reply brief, defendants argue that the Building Department is
also immunized under another New Jersey statute, N.J. Stat.
§ 59:3-2. This
statute covers the discretionary activities of public employees and provides, in
The parties do not brief the issue of whether the date of application, the date of
issuance, or some other date controls.
relevant part, that “[a] public employee is not liable for an injury resulting from
the exercise of judgment or discretion vested in him.” N.J. Stat.
§ 59:3-2. There
are two problems with argument: First, this statute provides immunity for
public employees, whereas plaintiffs sue a public entity. Second, this statute
provides immunity when the public employee causes an injury “resulting from
the exercise of judgment or discretion vested in hint” Id. (emphasis added).
Since (it is alleged) the Building Department was not authorized to issue this
permit as of the date of issuance, it was not vested with this discretion.
Assuming (as 1 must), the truth of the facts as alleged by the plaintiffs,
the defendants’ motion to dismiss Count 5 on immunity grounds must be
For the foregoing reasons, defendants’ motion to dismiss is granted in
part and denied in part. Count 4 is dismissed without prejudice. The motion to
dismiss Count 5 is denied.
An appropriate order accompanies this opinion.
Dated: November 6, 2017
ICE N MCNULTY
United States District Ju
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