MARK HYMAN VS. YELENA MELNICHENKO (L-1603-14, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED)
A-3279-15T2, A-3431-15T2
| N.J. Super. Ct. App. Div. | Jul 3, 2017Background
- Mark Hyman, a Longport resident and frequent critic of local government on a radio show, sued the Borough of Longport alleging retaliatory conduct in violation of the New Jersey Civil Rights Act (NJCRA) based on events from 2008–2013.
- Central claim: Longport police allegedly conducted an inadequate burglary investigation of Hyman’s 2009 home burglary and engaged in other retaliatory acts (taunts, unwarranted tickets, reduced business opportunities, ethnic insults) because of his radio speech.
- During discovery Hyman identified retired Lt. William Hewitt as a witness, noticed his deposition, then withdrew it; a private investigator later obtained a sworn statement from Hewitt contradicting Hyman’s claims and describing the LPD investigation as thorough.
- Longport served a frivolous litigation notice (FLN) and moved for summary judgment after discovery closed; the trial court granted summary judgment for Longport, finding no competent evidence of retaliation or municipal policy of retaliation.
- Longport sought attorney’s fees under the Frivolous Litigation Statute and the NJCRA; the trial court denied fees, finding insufficient evidence of bad faith or frivolousness.
- Appeals by both parties were consolidated; the Appellate Division affirmed both the summary judgment dismissal of Hyman’s NJCRA claim and the denial of Longport’s fee application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for NJCRA retaliation claim | Hyman argued the burglary investigation and other acts amounted to retaliatory harassment for his protected radio speech | Longport argued the record (police reports + Hewitt statement) showed a proper, thorough investigation and no evidence linking actions to Hyman’s speech | Court: Summary judgment affirmed — competent evidence lacking to show retaliation |
| Causation (protected speech caused retaliation) | Hyman claimed his radio criticism motivated police/municipal actions | Longport said there was no causal link; investigation consistent with procedures and closed for lack of evidence | Court: Hyman failed to present competent evidence of causation; speculation insufficient |
| Municipal liability (custom/policy) | Hyman alleged Longport maintained a custom or policy of retaliating against critics | Longport maintained no evidence of any official custom/policy; individual allegations unsupported | Court: No proof of municipal custom or policy; NJCRA claim doomed on this basis as well |
| Fees under Frivolous Litigation Statute / NJCRA | Longport argued dismissal plus FLN and Hewitt’s statement warranted fees as frivolous or groundless | Hyman argued he sincerely pursued perceived violations and articulated reasons for his claims | Court: Trial judge did not abuse discretion in denying fees — dismissal alone does not prove bad faith; sanctions reserved for exceptional cases |
Key Cases Cited
- Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189 (N.J. 2016) (summary judgment reviewed de novo)
- Davis v. Brickman Landscaping, Ltd., 219 N.J. 395 (N.J. 2014) (standard for reviewing summary judgment)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (N.J. 1995) (evidential materials viewed most favorably to non-moving party)
- Puder v. Buechel, 183 N.J. 428 (N.J. 2005) (conclusory, self-serving assertions insufficient to defeat summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (no genuine issue of material fact standard)
- Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (U.S. 1978) (standard for awarding fees to prevailing defendant in civil-rights suits)
- George v. Rehiel, 738 F.3d 562 (3d Cir. 2013) (elements of First Amendment retaliatory claim)
- Mitchell v. McNeil, 487 F.3d 374 (6th Cir. 2007) (no constitutional right to an investigation)