SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3279-15T2

A-3431-15T2

MARK HYMAN, 

Plaintiff-Appellant,

v. 

YELENA MELNICHENKO,

VITALY MELNICHENKO,

NATALIA KOLYADA, 

and JAMES BRENNENSTUHL,

Defendants,

and

BOROUGH OF LONGPORT,

Defendant-Respondent.

MARK HYMAN, 

Plaintiff-Respondent,

v. 

YELENA MELNICHENKO,

VITALY MELNICHENKO,

NATALIA KOLYADA, 

and JAMES BRENNENSTUHL,

Defendants,

and

NOT FOR PUBLICATION WITHOUT THE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.
2 A-3279-15T2

BOROUGH OF LONGPORT,

Defendant-Appellant.

Submitted June 7, 2017 – Decided July 5, 2017

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New 

Jersey, Law Division, Atlantic County, Docket 

No. L-1603-14.

My Rights Lawyers, LLC, attorneys for 

appellant in A-3279-15 and respondent in 

A-3431-15 (Michelle J. Douglass, on the 

briefs).

Barker, Gelfand & James, attorneys for 

respondent in A-3279-15 and appellant in 

A-3431-15 (A. Michael Barker, on the brief). 

PER CURIAM 

 These two appeals, calendared back-to-back and consolidated 

for purposes of this opinion, arise out of a complaint filed by 

plaintiff Mark Hyman against defendant Borough of Longport 

alleging, among other things, a violation of the New Jersey Civil 

Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. Plaintiff appeals from 

the summary judgment dismissal of his NJCRA claim, while Longport 

appeals from an order denying its application for fees and costs 

pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1, 

and the NJCRA. For the reasons that follow, we affirm both orders. 
3 A-3279-15T2

I.

 We need not recite in detail the factual background and 

procedural history of this matter, which are well known to the 

parties. Briefly summarizing, plaintiff is a resident of Longport 

who was a frequent caller to a local political radio talk show, 

on which he would often criticize Longport's government and voice 

his belief that Longport Police Department (LPD) officers abused 

their positions. On April 24, 2014, plaintiff filed a complaint 

against Longport and others, alleging a violation of the NJCRA.1 

Specifically, plaintiff claimed that, from 2008 to 2013, Longport 

police and municipal government officials harassed him in 

retaliation for his constitutionally protected speech on the radio 

program. 

 In his certified answers to interrogatories and sworn 

deposition testimony, plaintiff alleged that the LPD conducted an 

inadequate investigation and stonewalled his efforts to recover 

property that was stolen from him when his home was burglarized 

in February 2009. Other forms of alleged harassment by Longport 

officials included: (1) telling plaintiff to stay off the radio 

 

1 Plaintiff's complaint against Longport also included counts for 

tortious interference with contract; negligence; breach of 

contract; and violation of the New Jersey Racketeer Influenced and 

Corrupt Organizations (RICO) Act, N.J.S.A. 2C:41-1 to -6.2. On 

November 12, 2014, the trial court granted Longport's motion to 

dismiss those counts. Plaintiff does not appeal those dismissals. 
4 A-3279-15T2

and taunting him; (2) issuing him unwarranted tickets; (3) reducing 

business opportunities for plaintiff and his daughter; and (4) 

insulting plaintiff about his wife's ethnicity and insinuating 

their relationship was not genuine. 

 During discovery, plaintiff amended his interrogatory answers 

to identify William Hewitt, a retired LPD lieutenant, as a witness 

having knowledge of facts supporting his retaliation claims. On 

July 1, 2015, plaintiff noticed Hewitt's deposition for September 

10, 2015, but withdrew the deposition notice on September 9. The 

next day, Jim Brennenstuhl, a private detective who plaintiff had 

previously hired to investigate his home burglary,2 took a sworn 

recorded statement from Hewitt. Hewitt stated that the Longport 

police officer assigned to the burglary investigation "did 

everything he could possibly do" and that the LPD "went far beyond 

what they would do for anyone else, and they did stuff for 

[plaintiff] just to avoid any problems with [plaintiff]." In the 

end, the investigation spanned some eighteen months and was closed 

because the LPD lacked sufficient evidence to support a criminal 

prosecution. Hewitt further stated he was unaware of "anyone 

telling anyone not to investigate" the burglary, and nothing in 

 

2 Although not completely clear from the record, it appears that 

at some point Brennenstuhl was also hired as an outside agent by 

the LPD. 
5 A-3279-15T2

his experience suggested that the LPD or any of its representatives 

retaliated against defendant because of his radio appearances. 

 On October 20, 2015, Longport's counsel served plaintiff's 

counsel with a frivolous litigation notice (FLN). The FLN stated 

that, given Hewitt's sworn testimony, it was apparent that 

plaintiff lacked sufficient competent evidence to support his 

claims against Longport. The FLN demanded that plaintiff withdraw 

his complaint within twenty-eight days, failing which Longport 

would seek frivolous litigation sanctions or an award of counsel 

fees and costs as a "prevailing party" pursuant to N.J.S.A.

10:6-2(f). 

 Plaintiff did not withdraw the lawsuit and Longport moved for 

summary judgment following the close of discovery. Presented with 

the above evidence and the LPD investigation reports pertaining 

to the burglary, Judge Noah Bronkesh granted summary judgment in 

favor of Longport on January 19, 2016. In his written opinion, 

the judge reasoned: 

 This [c]ourt finds that there are no 

genuine issues of material fact when the facts 

are viewed in the light most favorable to the 

non—moving party. The record establishes that 

the investigation into [p]laintiff's alleged 

burglary was proper, thorough and 

adequate. . . . All leads were pursued and 

while suspects were found, there was not 

enough evidence to warrant the filing of 

criminal charges. The record shows the 

thorough effort made by the investigating 
6 A-3279-15T2

officer in pursuing leads in the alleged 

burglary. Additionally, even if [p]laintiff 

could show that the investigation was 

inadequate, [] [p]laintiff has not shown that 

the inadequate investigation[] was due to the 

criticisms voiced on the radio talk show. 

 ["]In order to establish a First 

Amendment claim, a [p]laintiff must prove (1) 

that he was engaged in a constitutionally 

protected activity; (2) that the government 

responded with retaliation[;] and (3) that the 

protected activity caused the retaliation." 

Muhammad v. Abington Twp. Police Dep't, 37 F. 

Supp.3d 746, 760 (E.D. Pa. 2014), citing 

George v. Rehiel, 738 F.3d 562, 585 (3d Cir. 

2013). Plaintiff cannot show that he was 

retaliated against by an inadequate 

investigation because the investigation was 

proper and in compliance with [LPD] policies 

and procedures. Contrary to [] [p]laintiff's 

argument, the competent evidence on the 

records shows that the police properly 

investigat[ed] the alleged burglary. Among 

other listed procedures, the investigation 

included having police check the property to 

make sure the perpetrator was not still on the 

premises, securing the scene to protect 

evidence, interviewing the victim and any 

witnesses, dusting the scene for fingerprints, 

check[ing] with neighbors and surrounding 

residents for additional potential witnesses, 

documenting the actions, and taking whatever 

other actions officers deem necessary for the 

successful arrest and prosecution of the 

perpetrator. . . . The steps taken by the 

police are set forth in further detail in the 

police records and demonstrate that an 

adequate investigation was made. Moreover, 

"there is no statutory or common law right, 

much less a constitutional right, to an 

investigation." Mitchell v. McNeil, 487 F.3d 

374, 378 (6th Cir. 2007). As such, 

[p]laintiff has not produced sufficient 

evidence of retaliatory conduct in the 
7 A-3279-15T2

burglary investigation. Furthermore, 

[p]laintiff has not produce[d] adequate 

evidence to support his assertions of other 

instances of retaliation, and he has not set 

forth sufficient evidence that any inadequacy 

in the burglary investigation was due to 

statements [p]laintiff made on the radio show. 

Finally, [p]laintiff's NJCRA claim fails 

because [p]laintiff cannot establish that he 

suffered any underlying constitutional 

violation by any Longport employee or agent, 

or that Longport maintained a custom or policy 

of retaliating against citizens for exercising 

their right to free speech. 

 On February 4, 2016, Longport filed an application for fees 

and costs pursuant to N.J.S.A. 2A:15-59.1 and N.J.S.A. 10:6-2(f). 

On March 4, 2016, Judge Bronkesh denied the motion, finding there 

was insufficient evidence that plaintiff asserted the claim in bad 

faith or solely for the purpose of harassment, or that the action 

was unreasonable or without foundation. These appeals followed. 

II.

 In his appeal, plaintiff challenges the grant of summary 

judgment relief. He argues that the trial court erred in finding 

the proofs were insufficient to establish: retaliatory harassment 

by the LPD; a causal connection between the alleged harassment and 

plaintiff's constitutionally protected activity; and a custom or 

policy of retaliation against citizens for exercising their free 

speech rights. We disagree. 
8 A-3279-15T2

 "[W]e review the trial court's grant of summary judgment de 

novo under the same standard as the trial court." Templo Fuente 

De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 

(2016) (citation omitted). Thus, we consider, as the trial court 

did, "whether the competent evidential materials presented, when 

viewed in the light most favorable to the non-moving party, are 

sufficient to permit a rational factfinder to resolve the alleged 

disputed issue in favor of the non-moving party." Davis v. 

Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting 

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). 

If there is no genuine issue of material fact, we must then "decide 

whether the trial court correctly interpreted the law." DepoLink 

Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.

325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 

396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 

N.J. 419 (2008)). We review issues of law de novo and accord no 

deference to the trial judge's conclusions on issues of law. 

Nicholas v. Mynster, 213 N.J. 463, 478 (2013). 

 "Although we are mindful that, when reviewing summary 

judgment motions, we must view the 'evidential materials . . . in 

the light most favorable to the non-moving party,' conclusory and 

self-serving assertions by one of the parties are insufficient to

overcome the motion[.]" Puder v. Buechel, 183 N.J. 428, 440-41 
9 A-3279-15T2

(2005) (citations omitted). A party's "[b]are conclusory 

assertions, without factual support in the record, will not defeat 

a meritorious application for summary judgment." Horizon Blue 

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. 

Div.) (citing Brae Asset Fund, L.P. v. Newman, 327 N.J. Super.

129, 134 (App. Div. 1999)), certif. denied, 211 N.J. 608 (2012). 

 Thus, "the mere existence of some alleged factual dispute 

between the parties will not defeat an otherwise properly supported 

motion for summary judgment; the requirement is that there be no 

genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211 

(1986). What is required of the party opposing summary judgment 

is affirmative evidence that is competent, credible, and shows 

that there is a genuine issue for trial. "Competent opposition 

requires competent evidential material beyond mere speculation and 

fanciful arguments." Cortez v. Gindhart, 435 N.J. Super. 589, 605 

(App. Div. 2014) (quoting Hoffman v. Asseenontv.Com, Inc., 404 

N.J. Super. 415, 425-26 (App. Div. 2009)), certif. denied, 220 

N.J. 269 (2015). 

 Guided by these principles, we conclude that summary judgment 

was properly granted. Certainly, we recognize that 

"constitutionally protected interests 'emanate from every person's 

right to be insulated from governmental retaliation for expressive 
10 A-3279-15T2

exercises or beliefs protected by the First Amendment.'" Lapolla 

v. Cty. of Union, ___ N.J. Super. ___, ___ (App. Div. 2017) (slip 

op. at 13) (citing Commc'ns Workers of Am. v. Whitman, 335 N.J. 

Super. 283, 289 (App. Div. 2000)). Nonetheless, in the present 

case, the LPD's reports clearly demonstrate the extensive and 

prolonged investigation into the burglary of plaintiff's home.

That no one was ultimately arrested or prosecuted for the crime 

does not establish a NJCRA violation. Moreover, plaintiff's own 

witness, Hewitt, expressly contradicted his claim that he was 

retaliated against for exercising his free speech rights. Aside 

from plaintiff's mere speculation, the record simply lacks 

sufficient factual support for his contention that he was 

retaliated against in violation of the NJCRA, or that Longport had 

a custom or policy of engaging in such retaliation. 

III.

 We now turn to Longport's appeal from the order denying its 

request for counsel fees and costs. 

 A trial court's determinations on the 

availability and amount of fees and costs for 

frivolous litigation are reviewable for "abuse 

of discretion." [Masone v. Levine, 382 N.J. 

Super. 181, 193 (App. Div. 2005).] Reversal 

is warranted when "the discretionary act was 

not premised upon consideration of all 

relevant factors, was based upon consideration 

of irrelevant or inappropriate factors, or 

amounts to a clear error in judgment." Ibid.
11 A-3279-15T2

[Ferolito v. Park Hill Ass'n, Inc., 408 N.J. 

Super. 401, 407 (App. Div.), certif. denied, 

200 N.J. 502 (2009).] 

 Pursuant to the Frivolous Litigation Statute, N.J.S.A.

2A:15-59.1(b), in order for a complaint from the non-prevailing 

party to be deemed frivolous, the judge must find evidence that 

the complaint 

(1) . . . was commenced, used or continued in 

bad faith, solely for the purpose of 

harassment, delay or malicious injury; or 

(2) The nonprevailing party knew, or should 

have known, that the complaint . . . was 

without any reasonable basis in law or equity 

and could not be supported by a good faith 

argument for an extension, modification or 

reversal of existing law. 

 The dismissal of a claim in favor of a defendant is not per 

se evidence that a plaintiff pursued his or her claim in bad faith. 

Id. at 408. The party seeking fees resulting from frivolous 

litigation bears the burden of showing the non-prevailing party 

acted in bad faith. Ibid.

 Moreover, the frivolous litigation statute must be 

interpreted strictly. DeBrango v. Summit Bancorp, 328 N.J. Super.

219, 226 (App. Div. 2000). Sanctions should be awarded only in 

exceptional cases, not for every litigation infraction. Iannone 

v. McHale, 245 N.J. Super. 17, 28 (App. Div. 1990). "When the 

[non-prevailing party's] conduct bespeaks an honest attempt to 
12 A-3279-15T2

press a perceived, though ill-founded and perhaps misguided, 

claim, he or she should not be found to have acted in bad faith." 

Belfer v. Merling, 322 N.J. Super. 124, 144-45 (App. Div.), certif. 

denied, 162 N.J. 196 (1999) (citation omitted). 

 Alternatively, Longport asserts its claim for attorney's fees 

pursuant to the NJCRA, which provides that "the court may award 

the prevailing party reasonable attorney's fees and costs." 

N.J.S.A. 10:6-2(f). As Longport candidly points out, the NJCRA 

was modeled after 42 U.S.C. § 1983, which creates a distinction 

between the standard for awarding fees to a prevailing defendant 

as opposed to a prevailing plaintiff. See Rezem Family Assocs., 

LP v. Borough of Millstone, 423 N.J. Super. 103, 115 (App. Div.), 

certif. denied, 208 N.J. 366 (2011) (stating that the NJCRA was 

modeled after 42 U.S.C. § 1983). Under the first scenario, a 

prevailing defendant cannot receive attorney's fees "unless a 

court finds that [the plaintiff's] claim was frivolous, 

unreasonable, or groundless, or that the plaintiff continued to 

litigate after it clearly became so." Christiansburg Garment Co. 

v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 422, 98 S. 

Ct. 694, 701, 54 L. Ed. 2d 648, 657 (1978). 

 Having reviewed the arguments raised by Longport in light of 

the record on appeal and applicable law, we conclude that the 

judge did not abuse his discretion in denying Longport's 
13 A-3279-15T2

application for attorney's fees and costs. We find no basis to 

disturb the judge's findings that plaintiff, although angry, felt 

justified in persisting with his claim against Longport, and he 

"clearly articulated reasons for his claims, albeit without 

sufficient evidence to ultimately prevail." That the trial court 

ultimately dismissed plaintiff's complaint, without more, did not 

establish that he acted in bad faith so as to necessitate an award 

of attorney's fees for frivolous litigation. See Ferolito, supra, 

408 N.J. Super. at 408. 

 Affirmed.