SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T1 ROCCO DUARDO, Plaintiff

- Appellant,

v. CITY OF HACKENSACK, HACKENSACK POLICE DEPARTMENT, OFFICE OF THE BERGEN COUNTY PROSECUTOR'S OFFICE, GURBIR S. GREWAL, in his official capacity as Bergen County Prosecutor, and TED M. EHRENBURG, in his official capacity as City Manager for the City of Hackensack, Defendants

- Respondents.
Argued July 9, 2019

– Decided August 5, 2019 Before Judges Hoffman and Currier. On appeal from the Superior Court of New Jersey, Law Divisio n, Bergen County, Docket No. L

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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- 17T1 Charles J. Sciarra argued the cause for appellant (Sciarra & Catrambone, LLC, attorneys; Charles J. Sciar ra, of counsel and on the brief ; Frank C. Cioffi, on the brief ). Raymond R. Wiss argued the cause for respondents City of Hackensack, Hackensack Police Department , and Ted M. Ehrenburg (Wiss & Bouregy, PC, attorneys; Raymond R. Wiss, of counsel and on the brief; Thomas K. Bouregy, Jr. and Timothy J. Wiss, on the brief). Thomas B. Hanrahan argued the cause for respondents Bergen County Prosecutor's Office and Gurbir S. Grewal (Hanrahan Pack, LLC, attorneys; David Pack , of counsel and on the brief; Thomas B. Hanrahan and Kathy A. Kennedy, on the brief).
PER CURIAM Plaintiff Rocco Duardo appeals from a March 26, 2018 order , denying him injunctive relief and dismissing his verified complaint, and the July 23, 2018
order , denying reconsiderat i on. Because we find plaintiff's counsel 's certification was insufficient to support Rule 1:4

- 7's verification requirement , the complain t was procedurally flawed, requiring its dismissal. We affirm. Plaintiff is a patrolman in the Hackensack Police Department (HPD). In December 2016, he and five other officers engaged in a warrantless search of an apartment. The report submitted by Detective Mark Gutierrez stated that the officers originally arrived at the area to "check for narcotic activity." After the3 A

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officers w e re on the scene, Gutierrez stated an unknow n resident informe d them "he believed there was a n un attended child" in a specific apartment. When no one responded to the officers' knock on t he apartment's door, they discovered it "was left [u]nsecured." Gutierrez reported the officers entered the apartment, checked it , and left. After HPD received an anonymous letter claiming Gutierrez's report of the December 2016 search was "full of lies," HPD's internal affairs department initiated an investigation into the search. Surveillance footage from a camera inside the building showed the six officers entering the apartment after tampering with the door's lock. HPD informed defendant the Bergen C ounty Prosecutor's Office (BCPO) of the officers ' unlawful entry into the apartment. The BCPO thereafter began a criminal investigation into the events. In May 2017 , defendant City of Hackensack (City) issued plaintiff a Preliminary Notice of Disciplinary Action (P N DA), suspending plaintiff from HPD, without pay, "effective immediately" because of the warrantless search.
HPD also sought to terminate plaintiff from his employment for violating multiple New Jersey statutes , regulations, and HPD rules.4 A

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Following a Loudermill 1 hearing , pl aintiff's suspension was upheld but the City was instructed to return plaintiff to paid status. The he aring officer found the Internal Affairs Captain and City Manager to be "very credible." After reviewing HPD's internal affairs investigation report, the BCPO determined the facts did not support the filing of criminal charges against plaintiff. The BCPO referred the matter back to "HPD to conduct an administrative internal affairs investigat ion in accordance with the Attorney General's Guidelines." The next day, defendant Gurbir Grewal, the Bergen County Prosecutor, wrote to HPD stating: "While we informed you on July 19, 2017

. . . that our review of those allegations and available evidence did not support the filing of criminal charges against [plaintiff] at this time, we believe that [his] conduct
undermines

. . . [his] credibility as [a] law enforcement witness[]." As a result of the officers' conduct, the BCPO determined it had to dismi ss eight cases pertaining to sixteen different criminal defendants. Grewal stated further: "Based on the holdings in Brady v. Maryland , 373 U.S. 83 (1963), Giglio v.

1 Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532 (1985) (holding that a public employee has a property right in his or her continued employment that cannot be taken away without due process).5 A

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United States , 405 U.S. 150 (1972), and their progeny, any decisions concerning the future testimony of any of the [s]ubject [o]fficers will be made on a case

- by

case basis

. "
I n August 2017, plaintiff filed a complaint, verified by his counsel, and an order to show cause, seeking to enjoin defendants from pursuing administrative charges against him , and from designating him as a Brady officer. The City filed a second P N DA on September 1, 2017 , suspending the officers with pay. The P N DA again sought to terminate plai nt iff from the HPD , and charged him with failing to follow HPD rules an d regulations, pursuant to
N.J.S.A. 40A:14

- 147, and for "[ i ] ncompetency, inefficiency, [ inability ] or failure to perform duties " under N.J.A.C. 4A:2

- 2.3(a)(1), (3), (12). In response, plaintiff filed a second amended verified complaint incorporating the s econd
P N DA. The complaint included an amended verification and certification from plaintiff's counsel. Defendants opposed the order to show cause and moved for dismissal of the verified complaints. In a March 26, 2018 order and accompanying written statement of rea s ons, the trial judge found plaintiff's failure to verify the alleged facts in his com p laint to demonstrate his personal knowledge of the allegations was a "fatal procedural6 A

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deficiency," requiring dismissal of the complaint. The judge also found plaintiff
f ailed to meet the Crowe 2 standards for in junctive relief. Lastly, the judge advised that plaintiff had failed to pursue the appropriate administrative remedies regarding the PDNAs afforded to him under the Civil Service Act,
N.J.S.A. 11A:1

- 1 to

- 12.6. Plaintiff moved for reconsideration , and leave to file a third verified amended complaint. In a July 23, 2018 order and written statement of reasons , the trial judge denied the motio ns, finding plaintiff had not met the standard for reconsideration under R ule 4:4 9

- 2 and he had failed to cure the complaint 's deficiencies to allo w its amendment. On appeal, plaintiff argues: 1) his counsel could verify the complaint because the allegatio ns are supported by facts in a business record ( Gutierrez's report); 2) the BCPO's decision to designate plaintiff as a Brady officer should be reviewed for an abuse of discretion; 3) the BCPO abused its discretion in designating plaintiff as a Brady offic er; and 4) he demonstrated a right to injunctive relief.

2 Crowe v. De Gioia , 90 N.J. 126 (1982).7 A

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In a summary acti o n brought under Rule 4:67

- 2, the complaint must be verified by affidavit pursuant to Rule 1:6

- 6. Similar to the verification requirement under Rule 1:4

- 7, Rule 1:6

- 6 prescribes the affidavit must be "made on personal knowledge, setting fo r th only fa c ts which are admissible in e v idence to which the affi a nt is competent to testify." Multiple paragraphs of plaintiff's complaint refer to statem ents made in Gutierrez's report. Plaint iff has not presented any certifications or affidavits verifying his allegations. Instead, his counsel's certification verified that the contents of Gutierrez's report were "true and accurate to the best of [his] knowledge." Under Rule 1:4

- 7 , "[v] erification requires that the pleading party allege facts that are based on personal knowledge and that such allegations be of facts admissible as evidence to which the affiant is competent to testify." Hodges v. Sasil Corp. , 189 N.J. 210, 233 n. 2 (2007) (first citing R. 1:4

- 7; then citing Monmouth Cty

. Div. of Soc. Servs. v. P.A.Q. , 317 N.J. Super. 187, 193

- 94 (App. Div. 1998)). We have previously held that an attorney is generally not an individual possessing personal knowledge o f rele v ant facts. See Go nzalez v. Ideal Tile Importing Co. , 371 N.J. Super. 349, 358 (App. Div. 2004) ("Even an attorney's sworn statement will have no bearing on a summary judgment motion when the8 A

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attorney has no personal knowledge of the facts asserted."). Here, c ounsel does

n ot assert, and could not assert , he possess ed personal knowledge of the facts in Gutierrez's report. We are unpersuaded by p laintiff 's argument, raise d for the first time on appeal, that his counsel can testify to the facts in Gutierrez's report because they
are admissible under the business record s hearsay exception

. See N.J.R.E. 803 (c)(6)

. In light of the circumstances surrounding the creatio n of Gutierrez's investigative report, its admissibility as a business record is unlikely. Rule 803 (c)(6) pr ohibits the admissibility of a statement in a writing or record if "the
sources of inf ormation or the method, purpose or circumstances of preparation indicate that it is not trustworthy." The circumstances leading to plaintiff's disciplinary actions , and his lawsuit , arise out of the events depicted in Gutierrez's report , which have been found to be false in several administrative proceedings

. Even if the report was admissible, it does not solve plain t iff's verification
issue. Counsel still lacks the requisite personal knowledge to verify the complaint. He cannot show he was present during the challenged search nor that he helped Gutierrez prepare the report

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The procedural deficits of the verification are a fatal flaw, renderi ng it a

" nullity. " P.A.Q. , 317 N.J. Super. at 194. In the absence of a verification, the trial court lacked jurisdiction to consider the complaint , and therefore p roperly dismissed it

. Because we conclude the trial judge did not err in dismissing the

co m p l aint for plaintiff's failure to verify its allegati o ns, we need not address the remaining arguments. We also discern no abuse of discretion in the denial of plaintiff's motion for reconsideration. Affirmed.