KHAN et al v. CITY OF BAYONNE et al

Filing 51

OPINION. Signed by Judge Claire C. Cecchi on 6/30/2021. (jl, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MAHAMED KHAN and AZMA KHAN,

Civil Action No. 18-05825

Plaintiffs,
OPINION
v.
CITY OF BAYONNE and STATE OF NEW
JERSEY,
Defendants.
CECCHI, District Judge.
This matter comes before the Court on the motion for summary judgment (the “Motion”)
(ECF No. 26) of Defendant City of Bayonne (“Defendant”). The Motion seeks judgment in favor
of Defendant on all counts of the Complaint (ECF No. 1) (“Compl.”) filed by pro se Plaintiffs
Mahamed Khan (“Mahamed”) and Azma Khan (“Azma”) (collectively, “Plaintiffs”). The Court
has considered the submissions made in support of and in opposition to the Motion. See ECF Nos.
27, 30, 31. The Motion is decided without oral argument pursuant to Federal Rule of Civil
Procedure 78. 1 For the reasons set forth below, Defendant’s Motion is granted.
I.

BACKGROUND
This case arises from an alleged unconstitutional taking that resulted from the emergency

demolition of Plaintiffs’ property (the “Property”) in 2016. See ECF No. 26-2 (“Def. SMF”). 2

1

The Court considers any new arguments not presented by the parties to be waived. See Brenner
v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991) (“It
is well established that failure to raise an issue in the district court constitutes a waiver of the
argument.”).
2

Preliminarily, the Court notes that Plaintiffs failed to respond to Defendant’s statement of
material facts as is required by Local Rule 56.1(a). Thus, any fact in Defendant’s statement which
1

Plaintiffs allege that Defendant’s failure to properly maintain a sewer drainage system caused
regular flooding on the Property, which apparently resulted in “damage and destruction to the
Plaintiff[s’] dwelling.” Compl. at 3-5. Among other assertions, Plaintiffs contend that the
“[f]looding of the Property, citations, and subsequent intentional demolition all constitute
protected takings of property.” Id. at 6.
Plaintiffs maintain that sometime in or after July 2014 or July 2015, 3 Defendant began
issuing citations to Plaintiffs because they refused to provide a refund to Dan Hall (“Hall”), the
City Inspector of Defendant, for a carpet he purchased at Plaintiffs’ carpet store. Id. at 3.
Nevertheless, the record reflects that Plaintiffs received citations as early as 2011, prior to the
alleged incident with Hall. Def. SMF ¶ 5 (citing ECF No. 26-5, Ex. B, Interr. Resp. ¶¶ 6-8); see
also ECF No. 26-7, Ex. I, Constr. Code Citations. As to the claim that the citations were in
retaliation for denying Hall a refund, Mahamed has conceded that “[t]here is no evidence in this

is adequately supported by the record is deemed admitted. Fed. R. Civ. P. 56(e) (“If a party fails
to properly support an assertion of fact or fails to properly address another party’s assertion of fact
as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion
. . . .”); Maultsby v. Rih Acquisitions NJ, L.L.C., No. 09-4376, 2011 U.S. Dist. LEXIS 148267, at
*1 n.1 (D.N.J. Dec. 27, 2011) (“For those statements of facts for which plaintiff did not properly
deny with a citation to the record, and for which the Court finds supported in the record, the Court
deems them admitted.”) (internal citations omitted). Plaintiffs did, however, submit a collection
of affirmations with their opposition brief. See ECF Nos. 30-1, 30-2, 30-3, 30-4. Given that
Plaintiffs are pro se, the Court reviewed the affirmations, but found that they largely consist of
conclusory statements, many of which contradict Plaintiffs’ own deposition testimony. See, e.g.,
ECF No. 30-1, Khan Aff. ¶¶ 30, 36, 41-43. As such, they are insufficient to establish genuine
issues of material fact as to any of the points herein. See Jiminez v. All Am. Rathskeller, Inc., 503
F.3d 247, 251 (3d Cir. 2007) (“[A] party may not create a material issue of fact to defeat summary
judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a
plausible explanation for the conflict.”) (internal citations omitted). As Plaintiffs have failed to
respond to Defendant’s assertions of fact, the Court may grant summary judgment if, based on the
motion, supporting materials, and the facts considered undisputed, it finds that Defendant is
entitled to judgment as a matter of law. See Humphrey v. PennyMac Holdings, L.L.C., No. 153622, 2017 U.S. Dist. LEXIS 117116, at *1 n.3 (D.N.J. July 26, 2017) (internal citations omitted).
3

The Court notes that Plaintiffs have alleged two different dates, as reflected above, in their
Complaint and interrogatory responses. See Compl. at 3; ECF No. 26-5, Ex. B, Interr. Resp. ¶¶ 68. The Court will consider both dates.
2

case.” Def. SMF ¶ 61 (quoting ECF No. 26-5, Ex. C, M. Khan Dep. Tr. at 125:4-13).
Plaintiffs assert that they then challenged these citations in state court. Id. ¶ 6. Plaintiffs
contend that at a hearing on February 19, 2013 (the “February 2013 Hearing”), the Honorable
Frank Carpenter stated on the record that the “tickets clearly look[] like discrimination,” and
“dismissed . . . all charges.” Id. (quoting Compl. at 4); see also id. ¶ 48 (quoting ECF No. 26-5,
Ex. C, M. Khan Dep. Tr. at 50:18-23). Defendant, however, maintains that “far from calling the
tickets ‘discriminatory’ or stating any of the other fictions alleged by Plaintiffs, Judge Carpenter
made it clear that Azma was wise to plead guilty.” Id. ¶ 52. After reviewing the transcript, the
Court notes that there is nothing in the record to suggest that Judge Carpenter found the citations
to be discriminatory, that Plaintiffs were being harassed, or that he “threw out all charges.” Id. ¶¶
48-56. In fact, it appears that an arrangement was worked out with Azma—since she was the
record owner of the Property 4—whereby Azma pleaded guilty to certain citations, agreed to pay a
$1,000 fine, and the remaining citations were dismissed. Id. ¶¶ 3, 49-54 (citing ECF No. 26-7, Ex.
J, Feb. 2013 Hear. Tr. at 4:16-23, 6:13-16). Plaintiffs have not produced any evidence indicating
that they were subject to discriminatory conduct based on their religion, race, or national origin.
Id. ¶¶ 57-60.
With respect to the flooding, although Plaintiffs initially alleged in their Complaint that the
flooding came from outside of the Property, that allegation is not supported by the record, and
indeed Mahamed testified at his deposition that the flooding resulted from a broken pipe under the

4

The Court notes that in a supplemental letter (ECF No. 45), Defendant refers to a different owner
of the Property than Plaintiffs and references a settlement agreement between the current owner of
the Property and Defendant. ECF No. 45 at 3 n.4. This potential change in ownership appears to
have occurred in 2017 and does not affect the Court’s analysis of Plaintiffs’ claims as Plaintiffs
have identified the relevant period as October 5, 2011, to April 1, 2016. See ECF No. 45-5 at 2;
ECF No. 26-6, Ex. E, DOJ Tort Claims Notice at 2.
3

Property. 5 Id. ¶ 16. Additionally, in their interrogatory responses, Plaintiffs stated that the
flooding occurred due to a “storm drain pip[e] broken under my property . . . which had cause[d]
flooding over seven feet[] dozens of times.” Id. ¶ 17 (emphasis added). Plaintiffs testified that
they have no documentation demonstrating that the pipes under the Property are owned and
serviced by Defendant, and they further stated that they never repaired the broken pipe under the
Property. Id. ¶¶ 18-19. Defendant affirmatively maintains that it “neither owns nor controls the
storm drains located directly below the Property,” and as such, it argues that “it cannot be liable
for any damages caused by flooding allegedly emanating from the leaking pipe under the
Property.” ECF No. 27 at 24-25.
As a result of the citations issued to Plaintiffs, Defendant retained engineer Paul Del
Rosario (“Rosario”) of CME Associates to inspect the Property. Def. SMF ¶ 20. On March 8,
2016, Rosario inspected the Property, and afterwards, opined that “the structure must be
demolished immediately in order to abate an unsafe condition to avoid damage or injury to persons
or property.” Id. ¶¶ 21-22. Additionally, around May 17, 2013, Plaintiffs hired Kawalek +
Kawalek Architects (“K+K”) to inspect the Property. Id. ¶ 23. K+K also opined, almost three
years before Rosario, that “the [Property] is unhabitable, and the best course of action would be to
demolish it.” Id. ¶¶ 24-25 (quoting ECF No. 26-6, Ex. G, K+K Report at 1). On March 9, 2016,
Defendant issued a demolition notice (the “Demolition Notice”) to Azma, which Plaintiffs
admitted they received, advising her that the Property was an “imminent hazard” pursuant to
N.J.S.A. § 52:27D-132 and N.J.A.C. § 5:23-2.32 because it risks collapse, the “foundation on the
right side is sinking and compromised,” the Property “poses a risk to the welfare of the public,”
and that it “MUST be addressed immediately.” Def. SMF ¶¶ 26, 29 (quoting ECF No. 26-7, Ex.

5

While Plaintiffs identified only one instance of alleged flooding that emanated from outside the
Property, they conceded that the pipe was promptly fixed by Defendant. Def. SMF ¶ 15 (citing
ECF No. 26-5, Ex. C, M. Khan Dep. Tr. at 63:20-25).
4

H, Demo. Notice at 2). The Demolition Notice also provided instructions on how to contest
Defendant’s demolition determination by requesting a stay “to a court of competent jurisdiction
within 24 hours,” which Plaintiffs apparently chose not to do. Id. ¶ 28 (citing ECF No. 26-7, Ex.
H, Demo. Notice at 1). Azma admitted that the “house is dangerous and need[s] to be demolished,”
but she disagreed with the process Defendant utilized before demolition. Id. ¶ 30. However, when
asked whether additional processes were required prior to demolition, Azma could not articulate
any. Id. ¶ 31.
The demolition was performed by Control Industries, Inc. (“Control”), and though it was
originally scheduled for March 11, 2016, the demolition was invoiced on April 6, 2016. Id. ¶¶ 27,
34. Thus, the demolition occurred at some point within that timeframe. See id. A breakdown of
all the outstanding construction code citations and demolition fines were produced to Plaintiffs by
Defendant through discovery. Id. ¶ 34. In sum, the total amount owed by Plaintiffs to Defendant
was roughly $187,000 as of the filing of the Motion. Id. ¶¶ 35-36.
There were also proceedings instituted in Bayonne Municipal Court concerning all of the
construction code citations that are at issue in the immediate dispute. Id. ¶¶ 38, 46. According to
the latest update from the parties, those proceedings may be moot given Defendant’s settlement
with the current owner of the Property, which appears to have resolved the outstanding citations. 6
See ECF No. 45.
Plaintiffs admit that they failed to serve a tort claims notice on Defendant for the conduct
alleged in the Complaint. Def. SMF ¶ 12. However, they did attempt to file one with the United
States Department of Justice for the same alleged conduct, but that was denied because federal

6

The Court notes Defendant’s assertion that the referenced settlement may have rendered
Plaintiffs’ request for Defendant to cease collection efforts moot. See ECF No. 45 at 3 n.4 (“In
light of this settlement, Defendant dismissed all pending Municipal Court actions related to the
property and can no longer seek payment from Plaintiffs, necessarily mooting any demand that
Defendant be enjoined from seeking payment from Plaintiffs for the demolition.”).
5

employees were not involved. Id. ¶¶ 13-14 (citing ECF No. 26-6, Ex. E, DOJ Tort Claims Notice).
Plaintiffs also failed to produce many documents requested in discovery (e.g., expert reports,
medical records related to the emotional distress claims, documents evidencing damages), never
performed an appraisal of the Property, and confirmed that they will not utilize any medical records
in this case. 7 Id. ¶¶ 64-72.
II.

PROCEDURAL HISTORY
The Complaint in this action was filed on April 10, 2018. See Compl. Plaintiffs assert four

claims in the Complaint: 1) a taking pursuant to 42 U.S.C. § 1983 (“§ 1983”); 2) intentional
infliction of emotional distress; 3) extortion; and 4) trespass to land, chattel and conversion. See
Compl. Defendant filed an Answer on October 2, 2018. ECF No. 10. Defendant filed its present
Motion for summary judgment on November 20, 2019, seeking judgment in its favor as to all
counts of the Complaint. ECF No. 26.
III.

LEGAL STANDARD
Summary judgment is appropriate if the “depositions, documents, electronically stored

information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other
materials” demonstrate that there is no genuine issue as to any material fact, and, construing all
facts and inferences in a light most favorable to the non-moving party, “the moving party is entitled
to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); see also
Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986); Fed. R. Civ. P. 56(c).

7

All discovery in this matter was closed in November 2019, Plaintiffs did not submit any expert
reports at that time, and have not tried to since. See ECF No. 15. Additionally, even if the
affirmations submitted by Plaintiffs were not conclusory, Plaintiffs have presented no evidence to
establish that these individuals are qualified to opine on issues like the cause of the flooding. See,
e.g., ECF No. 30-3, Dawood Aff. ¶ 9. The lack of expert reports, especially with matters as
complex as sewer drainage systems, is potentially fatal to Plaintiffs’ claims as well. See McMunn
v. Babcock & Wilcox Power Generation Grp., Inc., 869 F.3d 246, 267 (3d Cir. 2017) (“Expert
evidence is generally required when an issue is beyond the ken of a lay jury.”).
6

The moving party has the initial burden of proving the absence of a genuine issue of
material fact. See Celotex, 477 U.S. at 323. Once the moving party meets this burden, the nonmoving party has the burden of identifying specific facts to show that, to the contrary, a genuine
issue of material fact exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986). In order to meet its burden, the nonmoving party must “go beyond the
pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and
admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”
Celotex, 477 U.S. at 324; see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990) (stating
that “[t]he object of [Rule 56(e)] is not to replace conclusory allegations of the complaint . . . with
conclusory allegations of an affidavit”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (“To raise a
genuine issue of material fact . . . [the opponent must] exceed[] the ‘mere scintilla’ threshold.”).
An issue is “genuine” if it is supported by evidence such that a reasonable jury could return
a verdict in the nonmoving party’s favor. Anderson, 477 U.S. at 248. A fact is “material” if, under
the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In
considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party’s
evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
IV.

DISCUSSION
Defendant offers numerous reasons as to why its Motion should be granted. See ECF No.

27. The Court agrees with most. For the sake of completeness, the Court will address both the
procedural and substantive reasons for its decision to grant Defendant’s Motion in its entirety.
A. Procedural Defects
7

i.

Statute of Limitations

Defendant argues that all of Plaintiffs’ claims are subject to a two-year limitations period.
ECF No. 27 at 15-16. Since all alleged actionable conduct occurred more than two years before
Plaintiffs commenced this action on April 10, 2018, Defendant argues that all counts are
completely barred. Id. at 16-18. Plaintiffs appear to argue that pursuant to the continuing wrong
doctrine, the limitations period should be extended due to Defendant’s alleged repeated demands
for Plaintiffs to pay costs associated with the construction code citations and demolition. ECF No.
30 at 3-6. They alternatively contend that the statute of limitations should be equitably tolled. Id.
at 4. The Court finds all Plaintiffs’ claims to be time-barred.
N.J.S.A. § 59:8-8(b) provides a two-year limitations period for state law claims dealing
with personal injury and property damage. Thus, the claims of intentional infliction of emotional
distress, extortion, and trespass/conversion (i.e., Counts II-IV) will be subject to this time-bar if
two years “have elapsed since the accrual of the claim.” Id. 8 As for the § 1983 claim (i.e., Count
I), “[i]n determining the length of the statute of limitations for a claim arising under § 1983, courts
must apply the limitations period applicable to personal-injury torts in the State in which the cause
of action arose.” Williams v. Borough of Highland Park, 707 F. App’x 72, 75 (3d Cir. 2017)
(quoting Estate of Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 859 (3d Cir. 2014)).
Therefore, the two-year limitations period of N.J.S.A. § 59:8-8 also applies to Plaintiffs’ § 1983
claim. Accordingly, all of Plaintiffs’ claims are subject to the two-year statute of limitations.
After a review of the record, the Court finds that the latest possible date the claims could
have accrued is April 6, 2016—the date when Control invoiced the costs for the demolition. See
ECF No. 26-7, Ex. I, Control Invoice. All other potential accrual dates (e.g., notice of the

8

Extortion (i.e., Count III), is not a legally cognizable civil claim in New Jersey, as will be
discussed later in this Opinion.
8

construction code citations, the February 2013 Hearing, the date Plaintiffs received the demolition
notice, and the actual demolition) occurred prior to April 6, 2016. Additionally, in their failed tort
claims notice filed with the DOJ, Plaintiffs conceded that the period of the alleged conduct ranged
from October 5, 2011, to April 1, 2016. ECF No. 26-6, Ex. E, DOJ Tort Claims Notice at 2. Thus,
it is undisputed that all the alleged wrongful conduct occurred more than two years prior to the
filing of the Complaint on April 10, 2018, and as such, all claims must be time-barred.
Plaintiffs’ argument that the continuing wrong doctrine is applicable here is without merit.
ECF No. 30 at 4. “To allege a continuing violation, the plaintiff must show that all acts which
constitute the claim are part of the same unlawful . . . practice and that at least one act falls within
the applicable limitations period.” Williams, 707 F. App’x at 76 (emphasis added) (quoting
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165-66 (3d Cir. 2013)). Plaintiffs’ argument
misses the distinction highlighted by the Third Circuit in Williams between “continual unlawful
acts” and “continual ill effects from an original violation.” Id. (denying application of the
continuing wrong doctrine where a municipality’s subsequent request for payment stemmed from
an initial violation that was never remedied by plaintiffs). Defendant’s previous legal requests to
be paid monies owed for the construction code citations and to be reimbursed for the demolition
costs, pursuant to N.J.A.C. § 5:23-2.32, 9 are not “unlawful acts,” and cannot be a proper basis for
the continuing wrong doctrine. See Williams, 707 F. App’x at 76.
Equitable tolling is also not applicable here, as Plaintiffs have not sufficiently demonstrated
that they “diligently pursued [their] rights,” or that “extraordinary circumstances” stood in the way
of the timely filing of their Complaint. See D.J.S.-W v. United States, 962 F.3d 745, 752 (3d Cir.

9

The applicable authority states that “[c]osts incurred in the performance of emergency work shall
be paid from the treasury of the jurisdiction on certificate of the construction official; and the legal
authority of the jurisdiction shall institute appropriate action against the owner of the premises for
the recovery of such costs.” N.J.A.C. § 5:23-2.32(b)(5) (emphasis added).
9

2020) (citing Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750, 755-56
(2016)). Plaintiffs maintain in their opposition brief, without factual support, that they were told
by Defendant that they could not file a claim. ECF No. 30 at 6. Defendant asserts that “Plaintiffs
have not set forth a single fact” that would require the application of equitable tolling. ECF No.
31 at 9. Plaintiffs’ allegation, without any evidentiary support, is not enough to necessitate
equitable tolling, and thus, the claims are time-barred. 10
ii.

Failed Tort Claims Notice

Defendant argues that Plaintiffs’ failure to file a tort claims notice before instituting this
action is an uncurable defect that also serves as a complete bar to Counts II-IV. ECF No. 27 at 1819. Plaintiffs request that the Court order the Defendant to allow a late tort claims notice. ECF
No. 30 at 6. The Court agrees with Defendant; Plaintiffs’ failure to properly file a tort claims
notice serves as an additional procedural bar with regards to Counts II-IV.
N.J.S.A. § 59:8-8 provides that notice for “a claim relating to a cause of action for death or
for injury or damage to person or to property shall be presented . . . not later than the 90th day after
accrual of the cause of action.” Therefore, giving Plaintiffs the benefit of the doubt with an accrual
date of April 6, 2016, as established above, the tort claims notice must have been filed with

10

Lastly, Plaintiffs may not amend their Complaint to include an invasion of privacy claim.
Pursuant to the Pre-Trial Scheduling Order, the deadline to file a motion to amend pleadings was
March 18, 2019. See ECF No. 15. Therefore, the request to amend is not timely. Even if the
request was timely, the allegations proffered regarding the invasion of privacy claim do not rise
above the speculative level. See ECF No. 30 at 4-5. Plaintiffs assert that Mahamed’s likeness was
used in a recent newspaper article, “which was done to publicly humiliate him and has caused him
to suffer severe financial setbacks in his carpet business.” Id. at 4-5. The allegations assume that
Defendant either owned or is otherwise connected to the newspaper that allegedly used Mahamed’s
likeness. See id. Defendant argues that “there is no basis to assume” that it should be liable for
the “conduct of private businesses.” ECF No. 31 at 11. Moreover, Plaintiffs have not appeared to
identify a specific newspaper article at issue, although Defendant attaches a 2019 article
concerning Mahamed that is entirely unrelated to this action. ECF No. 31-1, Ex. N, Oct. 8, 2019
Article from Mycentraljersey.com. Accordingly, Plaintiffs have not shown that they should be
granted leave to amend their Complaint.
10

Defendant by July 6, 2016. However, Plaintiffs conceded that they did not serve a tort claims
notice on Defendant at all. ECF No. 26-5, Ex. C, M. Khan Dep. Tr. at 148:15-22. Even assuming
Plaintiffs’ tort claims notice that was served on the DOJ was adequate, it was filed on January 18,
2018, approximately a year and a half past the statutory deadline. See ECF No. 26-6, Ex. E, DOJ
Tort Claims Notice at 1. Further, pursuant to statutory law, courts may only extend the deadline
to file a tort claims notice for a period “not exceeding one year following accrual of the cause of
action.” Noble v. City of Camden, 112 F. Supp. 3d 208, 234 (D.N.J. 2015) (citing N.J.S.A. § 59:89). “[I]n no event may any suit against a public entity . . . arising under this act be filed later than
two years from the time of the accrual of the claim.” N.J.S.A. § 59:8-9 (emphasis added). Here,
Defendant is a public entity, and as mentioned previously, this lawsuit was filed more than two
years after the accrual of the claim. See N.J.S.A. § 59:1-3 (“‘Public entity’ includes the State, and
any county, municipality, district, public authority, public agency, and any other political
subdivision or public body in the state.”). Thus, failure to properly file a tort claims notice serves
as an additional procedural bar to Plaintiffs’ state tort claims (i.e., Counts II-IV). 11
B. Substantive Defects
i.

§ 1983 (Count I)

Plaintiffs’ § 1983 claim asserts that the flooding and demolition of the Property constitute
takings in violation of the Constitution. Compl. at 7. This assertion lacks merit.
“A prima facie case under § 1983 requires a plaintiff to demonstrate: (1) a person deprived
him of a federal right; and (2) the person who deprived him of that right acted under color of state

11

The Court acknowledges Defendant’s federalism argument regarding the pending Bayonne
Municipal Court proceedings. ECF No. 27 at 20-23. Defendant also contends that Mahamed lacks
standing to assert these claims because it was Azma, not Mahamed, who was the record owner of
the Property during the relevant time period. Id. at 40-41. The Court need not reach these
arguments given the numerous other bases for dismissal discussed in this Opinion.
11

or territorial law.” Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Gomez
v. Toledo, 446 U.S. 635, 640 (1980)). However, “[w]hen a suit against a municipality is based on
§ 1983, the municipality can only be liable when the alleged constitutional transgression
implements or executes a policy, regulation or decision officially adopted by the governing body
or informally adopted by custom.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)
(citing Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978)). Thus, although a
municipality cannot be held liable under a theory of vicarious liability, it can be held responsible
“when the injury inflicted is permitted under its adopted policy or custom.” Id. (citing Monell,
436 U.S. at 694).
As to the flooding aspect of the claim, Plaintiffs offer no evidence demonstrating that
Defendant had a duty to fix the pipe that they acknowledged was located under their property.12
See ECF No. 26-5, Ex. B, Pl. Interr. Resp. ¶ 13. Instead, all they offer are conclusory allegations
like the “system is inadequate and clearly outdated which caused the flooding.” ECF No. 30 at 6.
Moreover, municipalities in New Jersey routinely refuse to service water pipes located beneath
privately owned property. See, e.g., Kip’s Ridge Condo. Ass’n v. Twp. of Montclair, No. A-491007T3, 2009 N.J. Super. Unpub. LEXIS 1832, at *6-11 (N.J. Super. Ct. App. Div. July 15, 2009);
Minuskin v. Borough of Fair Lawn & Fair Lawn Sewer Dep’t, No. A-4596-01T5, 2003 N.J. Super.
Unpub. LEXIS 4, at *2 (N.J. Super. Ct. App. Div. Apr. 25, 2003) (reiterating the sewer department
policy which stated that “[i]f the problem exists between the home and the edge of the curb or
roadway, it is the homeowners[’] responsibility to repair”); see also N.J.S.A. §§ 59:4-1(-)2
(establishing that a public entity is only liable for injury caused by a condition on “public

12

As discussed previously, while Plaintiffs initially asserted in their Complaint that the allegedly
faulty pipe was “in front of and abutting” the Property, they have failed to substantiate that
allegation. Compl. at 3. Moreover, through discovery, Plaintiffs have repeatedly conceded that
the pipe is located under the Property, not in front. See ECF No. 26-5, Ex. B, Interr. Resp. ¶ 13;
see also ECF No. 26-5, Ex. C, M. Khan Dep. Tr. at 64:1-17.
12

property,” which is defined as any “real or personal property owned or controlled by the public
entity”). Since Plaintiffs have not shown that Defendant owned or controlled the pipe under the
Property, and Defendant affirmatively asserts that it did not, it therefore did not have a duty to fix
the pipe, and thus, the failure to do so could not amount to a violation of Plaintiffs’ federal rights.
Plaintiffs’ claim based on the demolition of the dwelling fares no better. N.J.A.C. § 5:232.32(b) explicitly authorizes Defendant to conduct an emergency demolition of a property when,
in the opinion of experts, “there is actual and immediate danger of failure or collapse of a building
or structure or any part thereof which would endanger life,” and permits Defendant to shift those
costs to the owner of the demolished property. Twenty-four hours after the demolition notice is
served on the record owner of the property, “demolition may proceed unless stayed by order of the
Superior Court.” Id. The Third Circuit has found that in the case of an emergency demolition
where a building’s “structural instability created an exigent circumstance that warranted immediate
and decisive action,” N.J.A.C. § 5:23-2.32 does not require a pre-deprivation hearing because of
the “necessity of quick action.” Munoz v. City of Union City, 481 F. App’x 754, 758 (3d Cir.
2012). Further, the demolition of a dangerous property cannot alone amount to a taking when a
plaintiff retained ownership of the property after the demolition and can still put the property to
“any number of beneficial uses.” Id. at 759 (“[Plaintiff’s] continuing possessory interest in the
property prevents him from establishing a Takings Clause violation.”).
Here, Plaintiffs were given notice that emergency demolition was required on their
Property because, among other reasons, it “pose[d] a risk to the welfare of the public.” ECF No.
26-7, Ex. H, Demo. Notice at 2. The notice also explained how to seek a stay, which Plaintiffs
chose not to do. See id. Plaintiffs failed to demonstrate that any additional process was required,
and they still retained ownership of the site after demolition. See ECF No. 26-5, Ex. C, M. Khan
Dep. Tr. at 12:24-13:14 (indicating that Azma was the record owner of the Property after the
13

demolition); ECF No. 26-6, Ex. D, A. Kahn Dep. Tr. at 8:15-22 (same). Accordingly, the
demolition was done in accordance with the law, and there is no evidence to suggest that the
demolition was part of some policy or custom of Defendant that resulted in a violation of Plaintiffs’
constitutional rights. The Motion is granted as to Count I.
ii.

Intentional Infliction of Emotional Distress (Count II)

Plaintiffs’ intentional infliction of emotional distress claim is based on Defendant’s alleged
“series of harassments” targeting Plaintiffs’ “nationality and race,” as well as the alleged
“imposition of baseless tickets.” Compl. at 8. The IIED claim is barred by statute.
Pursuant to N.J.S.A. § 59:2-10, “[a] public entity is not liable for the acts or omissions of
a public employee constituting a crime, actual fraud, actual malice, or willful misconduct.” “Thus,
there can be no vicarious liability by a public entity for intentional torts committed by its
employees; that is, with respect to such intentional torts, the theory of respondeat superior does
not apply.” Conte v. Goodwin, No. 19-8333, 2021 U.S. Dist. LEXIS 8618, at *26 (D.N.J. Jan 15,
2021) (quoting Hoag v. Brown, 397 N.J. Super. 34, 54 (N.J. Super. Ct. App. Div. 2007)); see also
Ward v. Barnes, 545 F. Supp. 2d 400, 420-21 (D.N.J. 2008) (holding that there is no legal basis
under N.J.S.A. § 59:2-10 for permitting respondeat superior liability to public entities on the
theories of battery and intentional infliction of emotional distress). Here, Defendant is a public
entity and intentional infliction of emotional distress is an intentional tort. Because Defendant
cannot be held vicariously liable for intentional infliction of emotional distress, the Motion must
be granted with respect to Count II.
iii.

Extortion (Count III)

Plaintiffs next argue that the act of “demanding a refund and money for the cost of
demolition” by Defendant was extortion. Compl. at 9. However, since extortion is not a legally
cognizable civil claim in New Jersey, the Motion is granted with respect to Count III. See Triple
14

T Constr., L.L.C. v. Twp. of W. Milford, No. 14-2522, 2014 U.S. Dist. LEXIS 80691, at *22 (D.N.J.
June 11, 2014) (“We also agree with the District Court that [plaintiff] has not stated a cognizable
claim for attempted blackmail or extortion. The District Court correctly concluded that these
causes of action are criminal, rather than civil[.]” (quoting Rader v. ING Groep NV, 497 F. App’x
171, 175 (3d Cir. 2012))).
iv.

Trespass to Land, Chattel and Conversion (Count IV)

Lastly, Plaintiffs contend that the “willful and malicious” “taking of [their] real and
personal property constituted acts of [t]respass to land, trespass to chattel, and conversion.”
Compl. at 10-11. Like Plaintiffs’ intentional infliction of emotional distress claim, this claim is
also barred by N.J.S.A. § 59:2-10.
As mentioned above, N.J.S.A. § 59:2-10 prohibits suits against public entities for
intentional torts committed by its employees. The torts of trespass to land, trespass to chattel, and
conversion are intentional torts. See, e.g., Ross v. Lowitz, 222 N.J. 494, 510 (N.J. 2015) (“A
defendant is liable in trespass for an intentional[] entry onto another’s land, regardless of harm.”)
(internal citations and quotation marks omitted); LaPlace v Briere, 404 N.J. Super. 585, 595 (N.J.
Super. Ct. App. Div. 2009) (“Conversion is an intentional tort in that the defendant must have
intended to exercise a dominion or control over the goods which is in fact inconsistent with the
plaintiff’s rights.”) (internal citations and quotation marks omitted); Kachirayan v. U.S. Bank,
N.A., No. L-00960-16, 2018 N.J. Super. Unpub. Lexis 3903, at *50 (N.J. Super. Ct. Law Div. June
15, 2018) (“Trespass is, of course, an intentional tort.”). The City of Bayonne, a public entity, is
the only Defendant in this case. 13 See Compl. Since Defendant is immune against this type of

13

The State of New Jersey is also included in the Complaint, but of course, it too is a public entity.
See N.J.S.A. § 59:1-3. Regardless, it appears that the State of New Jersey was never served in this
matter. The Court issued a call for dismissal pursuant to Federal Rule of Civil Procedure 4(m) on
September 11, 2018. See ECF No. 7. Plaintiffs failed to provide proof of service as to the State
of New Jersey and thus, all claims against it are dismissed.
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claim, the Motion is granted with respect to Count IV.
V.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for summary judgment is GRANTED in

its entirety and the Complaint is dismissed with prejudice. An appropriate Order accompanies this
Opinion.
DATED: June 30, 2021

CLAIRE C. CECCHI, U.S.D.J.

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