RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0061-21

MICHAEL J. WEST,

Plaintiff-Appellant,

v.

TOWN OF SECAUCUS and

MICHAEL J. GONNELLI, 

Individually and in his 

Official Capacity as Mayor

of Secaucus, 

Defendants-Respondents.

__________________________

Submitted May 3, 2022 – Decided June 24, 2022

Before Judges DeAlmeida and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-3634-20.

Michael J. West, appellant pro se.

Piro, Zinna, Cifelli, Paris & Genitempo, LLC, attorneys 

for respondents (Kristen Jones, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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. 1:36-3.
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In this appeal, we consider the trial court's dismissal of two counts of 

plaintiff's complaint with prejudice for failure to meet the relevant statutes of 

limitations, and dismissal of the malicious prosecution count without prejudice 

pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief may be 

granted. 

Plaintiff alleges he lacked the requisite mental capacity to timely file his 

complaint but later regained capacity, and the time period for filing the 

complaint should be tolled during the time he allegedly lacked capacity. He also 

claims his constitutional due process rights entitled him to an evidentiary 

hearing regarding his alleged incapacity before dismissal of his pleading. Based 

upon our review of the record and applicable law, we are satisfied there is 

sufficient evidence in the record to support dismissal of all three counts of 

plaintiff's complaint. Accordingly, we affirm for the reasons set forth by Judge 

Kimberly Espinales-Maloney in her thorough statement of reasons rendered on 

August 6, 2021. We add the following comments.

This action arises from the alleged malicious prosecution of plaintiff by 

defendants. Plaintiff concedes he wrote and posted a note on public property 

that read "the mayor is out of control with his draconian rules & somebody must 

cap his ass," referring to the Mayor of Secaucus. Plaintiff was charged with 
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making terroristic threats. The matter was downgraded and transferred to 

municipal court in Essex County, where plaintiff was found guilty of harassment

pursuant to N.J.S.A. 2C:33-4(a) after trial. He appealed, seeking a trial before 

the Law Division. Instead of conducting a de novo trial, the judge questioned 

plaintiff sua sponte and concluded plaintiff was guilty of harassment because he 

knew what "cap his ass" meant at the time he wrote the note. Plaintiff appealed. 

We reversed on January 3, 2020, concluding the Law Division did not adhere to 

Rule 3:23-8(a)(2) because it did not afford plaintiff a de novo trial on the 

substantive issues. State v. West, No. A-5412-15 (App. Div. Jan. 3, 2020). We 

also found the State did not satisfy its burden of proof because neither of the 

two witnesses who testified -- plaintiff and the mayor -- established what "cap 

his ass" meant. Ibid.

Plaintiff did not file a tort claim notice within ninety days of our decision. 

However, plaintiff's motion for leave to file a late notice of claim was granted 

on December 30, 2020. 

Plaintiff filed the complaint five months later, on May 28, 2021,

1

for acts 

he alleges occurred on September 25, 2014. Defendants moved, pursuant to 

Rule 4:6-2(e) to dismiss count one, false light invasion of privacy and 

1

 There was no explanation provided for the five-month delay in the record.
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defamation (libel, slander, false light invasion), and count two, negligent 

infliction of emotional distress, for failure to meet the requisite statutes of 

limitations. Defendants also moved to dismiss count three, malicious 

prosecution, for failure to state a claim upon which relief may be granted

because they claim they had probable cause to prosecute plaintiff. Plaintiff 

opposed the motion to dismiss and filed a cross-motion for an evidentiary 

hearing. The trial court dismissed counts one and two with prejudice and count 

three without prejudice. It also denied an evidentiary hearing.

When considering a motion to dismiss pursuant to Rule 4:6-2(e) for failure

to state a claim, the court’s inquiry is limited to an examination of the "legal

sufficiency of the facts alleged on the face of the complaint." Printing MartMorristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).2

In that regard, the

court is not concerned with a plaintiff’s ability to prove the allegation. Ibid.

Instead, courts must "[search] the complaint in depth and with liberality to

ascertain whether the fundament of a cause of action may be gleaned even from

an obscure statement of claim . . . ." Ibid. (quoting Di Cristofaro v. Laurel Grove

Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). In addition, courts

2 We review the trial court's findings de novo. See Royster v. N.J. State Police, 

227 N.J. 482, 493 (2017). 
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must accept as true the facts alleged in the complaint and construe all reasonable

inferences of fact in favor of plaintiff. Craig v. Suburban Cablevision, Inc., 140

N.J. 623, 625-26 (1995). A motion to dismiss "may not be denied based on the

possibility that discovery may establish the requisite claim; rather, the legal

requisites for plaintiffs’ claim must be apparent from the complaint itself." 

Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App. Div.

2003) (citing Camden Cnty. Energy Recovery Assocs., L.P. v. N.J. Dep’t of

Env't. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff’d, 170 N.J. 246

(2001)).

Statutes of limitations are created by the legislature and serve the laudable 

goal that "eventual repose creates desirable security and stability in human 

affairs." Galligan v. Westfield Centre Serv., Inc., 82 N.J. 188, 191-92 (1980). 

Such statutes induce litigants to pursue claims diligently so answering parties 

may have a fair opportunity to defend. Id. at 192. Claims of false light invasion 

of privacy or defamation are subject to a one-year statute of limitations. See

N.J.S.A. 2A:14-3; Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108, 122-

23 (App. Div. 2009). Plaintiff did not file his claim until June of 2021, more 

than five years after the accrual date. There is a two-year statute of limitations 

for negligent infliction of emotional distress. See N.J.S.A. 2A:14-2; Fraser v. 
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Bovino, 317 N.J. Super. 23, 34 (App. Div. 1976). Plaintiff filed his claim more 

than four years after the accrual date. 

Plaintiff claims he suffered a traumatic brain injury as an infant that 

affects his cognitive abilities. His claim he was mentally incapacitated from 

September 25, 2014, the date of the incident, through September 25, 2016, when 

he began taking an over-the-counter medication that cured him, is not supported 

by the record. It is not sufficient to demonstrate mere treatment for a mental 

condition in order to toll a statute of limitations. Pursuant to N.J.S.A. 2A:14-

21, plaintiff must demonstrate "such a condition of mental derangement as 

actually prevents the sufferer from understanding his legal rights or instituting 

legal action." See Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 113 (1965). 

The aim of the statute is to relieve a person from a strict time restriction who 

"actually lacks the ability and capacity . . . to pursue his lawful rights." Sobin 

v. M. Frish & Sons, 108 N.J. Super. 99, 104 (App. Div. 1969). 

Since 2014, plaintiff successfully filed an appeal of his municipal 

conviction, an appeal of the Law Division order, a motion to file a notice of late 

claim, and an unrelated order to show cause regarding an Open Public Records 

Act request in Mercer County in early 2019, two years before he filed this 

complaint. Plaintiff had the capacity to pursue his legal rights. Neither the 
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municipal court where he was tried on July 27, 2016, nor the Law Division, 

where he appeared, found evidence of incompetency. He did not properly raise 

the issue before either court. Plaintiff failed to show any adjudication of 

incapacity pursuant to N.J.S.A. 2A:14-21 or a return to capacity. His motion for 

an evidentiary hearing on temporary mental incapacity is not supported by fact 

or law and the trial court correctly denied it.

Plaintiff also cannot demonstrate the elements of a claim for malicious 

prosecution, which requires a showing that 1) the criminal action was instituted 

by the defendant against the plaintiff; 2) it was actuated by malice; 3) there was 

an absence of probable cause; and 4) it terminated favorably to the plaintiff. 

Lind v. Schmid, 67 N.J. 255, 262 (1975). Affording plaintiff all reasonable 

inferences, the sum of all malicious prosecution allegations made in plaintiff's 

complaint are: "Malicious Prosecution Tort of Intentional Dignitary [sic] The 

injuries are DAMAGE from humiliation, human dignity, loss of medication, 

mental anguish, and arrest/detention to release on bail." Plaintiff does not 

address lack of probable cause. Because plaintiff concedes he wrote the sign 

and hung it on public property, there was sufficient probable cause to charge 

him. Plaintiff's failure to address, at minimum, probable cause is fatal to his
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claim and the trial court correctly dismissed the malicious prosecution count 

without prejudice. 

The trial court properly concluded counts one and two of plaintiff's 

complaint were time-barred and count three failed to state a claim for malicious 

prosecution. On this record we see no basis to disturb the trial court's decision 

to dismiss the complaint. 

Affirmed.