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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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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 statute s 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 tol led during the time he allegedly lacked capacity. He also
claims his constitutional due process rights entitle d him to an evidentiary hearing regarding his alleged incapacity before dismissal of his pleading . Based upon our review of the record and appli cable 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 rea sons 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 with3 A

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making terroristic threats. The matter was downgraded and transferred to municipal court in Essex County , where plaintiff was found guil ty of harassment pursuant to N.J.S.A. 2C:33

- 4(a) after trial

. He appealed , seeking a trial before
the L aw D ivision

. I nstead 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 L aw D ivision did not adhere to
Rule 3:23

- 8(a)(2) because i t did not afford plaintiff a de novo trial on the
substantive issues

. State v. West , No. A

- 5 412

- 15 (App. Div. Jan. 3, 2020). We
also found the S tate did not satisfy its burden of proof because neither of the
two witnesses who testified

-- plaintiff and t he 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 file d the complaint five months later , on May 28, 2021 , 1 for acts he alleges occurred on September 25, 201 4

. 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 fiv e
- month delay in the record.4 A

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defamation (libe l , slander, false light invasion) , and count two, negligent
infl i ction of emotional distress, for failure to meet the requisite statute s of
limitations. Defendants also moved to dismiss count three, malicious prosecution, for failure to state a claim upon which relief may be gra nted
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 preju dice. 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 c ourt’s inquiry is limited to an examination of the " legal sufficiency of the facts alleged on the face of the co mplaint. " Printing Mart

Morristown v. Sharp Elec s. Corp. , 116 N.J. 739, 746 (1989). 2 In that regard, the

c ourt is not concerned with a plaintiff’s ability to prove the allegation. I bi d. 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

. . . . " I bi d. (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).5 A

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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 bas ed 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) (citi ng 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 crea tes 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 1 92. C laims 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. The re is a two

- year statute o f limitations for negligent infliction of emotional distress. See N.J.S.A. 2A:14

- 2; Fraser v.6 A

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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 claim s he suffered a traumatic brain injury as an infant that affects his cognitive abilitie s. His claim he was mentally in capacitated 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. I t 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 suffer er from understanding his legal rights or instituting legal action." See Kyle v. Gre en 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, p laintiff successfully filed an appeal of his municipal
conviction , an appeal of the L aw D iv ision 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 year s before he filed this complaint

. Plaintiff had the capacity to pursue his lega l rights. Neither the7 A

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municipal court where he was tried on July 27, 2016 , nor the L aw D ivision , where he appeared, found evidence of incompe tency

. He did not properly raise
the issue before either court. Plaintiff failed to show any adjudication of
inc apacity 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 show ing 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 probabl e cause; and 4) it terminated favorab ly 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] Th e injuries are DAMAGE from humiliation, human dignity, loss of medication, mental anguish, and arrest/detention to release on bail." P laintiff does not
address lack of probable cause. Because p laintiff concedes he wrote the sign and hung it on public pro perty , there was sufficient probable cause to charge
him . Plaintiff's failure to address , at minimum, probable cause is fatal to his8 A

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claim and t he trial court correctly dismissed the malicious prosecution count without prejudice. The trial court properl y 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.