A Monmouth County, New Jersey, judge has dismissed an excessive-force suit against the Sea Bright police department after the plaintiff’s lawyer said he failed to oppose a defense motion for summary judgment because he was too “occupied and distracted” to instantly answer.
In a one-page letter that was electronically filed at 4:06 p.m. on the day before the motion hearing, Michael Warshaw of Zager Fuchs in Red Bank, New Jersey, told the court that he and his co-counsel had been “very occupied and distracted and the opposition got away from us.”
Warshaw filed the suit, Beyer v. Sea Bright Borough, along with Tracy Hinson of Hinson Snipes in Princeton, New Jersey.
The defendants, in a statement of reasons attached to their motion to dismiss, said a complaining witness at the scene reported that Beyer had tried to engage him in a physical altercation.
The plaintiff’s lawyers obtained a two-week adjournment of the summary judgment motion on April 17.
But even after obtaining an adjournment, the plaintiff’s lawyers failed to respond to the arguments made in the defense motion for summary judgment.
Superior Court Judge Dennis O’Brien granted the defense motion for summary judgment, finding that the statement by Warshaw about “too many disputed issues” was not a sufficient response to the defense motion.
“While the Court is sympathetic to the demands of the modern day practice of law, the actions here are inexplicable, especially when the offending party requested and was granted an adjournment,” O’Brien said in a statement of reasons attached to his May 25 order.
The plaintiff, Brian Beyer, was arrested after police were called to the report of a fight in progress at the Driftwood Cabana Club. He claimed that arresting officers struck him in the abdomen with a billy club. The defendants, in a statement of facts attached to their motion, said the Sea Bright police do not carry billy clubs or any similar device. Beyer also claimed he was denied treatment for injuries to his abdomen, but the defendants said Beyer was treated by paramedics for scratches on his legs and made no complaint of injuries to the abdomen.
The defendants also stated that Beyer appeared intoxicated and repeatedly spit on arresting officers and physically resisted their control. Beyer was charged with aggravated assault on a law enforcement officer, disorderly conduct, resisting arrest and criminal mischief.
Beyer’s suit, filed in August 2015, brought a long list of claims against Sea Bright, its police department and the arresting officers, including unreasonable and excessive force, deliberate indifference to medical needs, common-law assault and battery, negligent hiring and negligent training and supervision.
Beyer claimed in the suit that he suffered a hematoma in the abdomen as a result of his alleged assault by police. The defense, in its statement of reasons, said Beyer did not mention any abdomen injury to an intake nurse when he was arrested, and that he did not seek treatment for the abdomen injury until 10 days after his arrest. The defense also stated that Beyer began alcohol rehabilitation treatment two days after his arrest.
O’Brien said facts in a moving party’s statement are deemed admitted if an opponent fails to file a responding statement admitting or disputing those facts. The Rules of Court dictate that summary judgment, if appropriate, shall be entered in the absence of an affidavit setting out specific facts to show a genuine issue for trial, O’Brien said.
In May 2015, the Appellate Division ruled that Beyer could file a late notice of claim because the first attorney he retained, Clifford Kuhn Jr., had been diagnosed with a relapse of lung cancer and could not handle the case.
Warshaw did not respond to a request for comment on the dismissal. Hinson declined to comment on the case. Charles Uliano of Chamlin, Rosen, Uliano & Witherington of West Long Branch, New Jersey, who represented Sea Bright, its police department and the three arresting officers, did not return a call about the case.
O’Brien’s ruling was first reported in the blog of open government advocate John Paff.