Matawan's Response To Alston

Case 3:12-cv-02730-MAS-TJB Document 3 Filed 07/16/12 Page 1 of 18 PageID: 37
METHFESSEL & WERBEL, ESQS.

3 Ethel Road, Suite 300
PO Box 3012
Edison, New Jersey 08818
(732) 248-4200
+1(732) 248-2355
mailbox@methwerb.com
Attorneys for Defendants
Our File No. 76191 ELH
JAMES M. ALSTON UNITED STATES DISTRICT COURT –

DISTRICT OF NEW JERSEY
Plaintiff, CIVIL ACTION NO.: 12-2730 (FLW)
V.
BOROUGH OF MATAWAN; PAUL

BUCCELLATO, INDIVIDUALLY AND
AS MAYOR OF THE BOROUGH OF ANSWER
MATAWAN AND WILLIAM GARAFOLO,
INDIVIDUALLY AND IN HIS PREVIOUS
CAPACITY AS BUSINESS
ADMINISTRATOR OF THE BOROUGH
OF MATAWAN
Defendants.
The defendants, Borough of Matawan, Paul Buccellato and William
Garafolo, by way of Answer to the Complaint, state as follows:
INTRODUCTION
1. Admitted that plaintiff asserts such claims; otherwise
denied.
JURISDICTION
2. Admitted.
3. Admitted.
4. Admitted.
THE PARTIES
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted; Mr. Garafolo continues to serve as Business
Administrator.
THE FACTS
9. Admitted.
10. Admitted insofar as plaintiff served as Chief of Police from
approximately July 2008 through his demotion in 2011. Otherwise
denied.
11. Denied.
12. Denied.
13. Denied.
14. Admitted insofar as McGowan was promoted to Chief of
Police and was provided with a contract which included terms
commensurate with those provided to all officers. Otherwise denied.
15. Admitted insofar that plaintiff did not become the Chief of
Police in 2006; otherwise denied.
16. Denied; the plaintiff was offered employment contract with
terms similar to those of his predecessors and commensurate with the
terms provided to all police officers. Otherwise denied.

17. Admitted insofar as plaintiff filed a charge of discrimination
which contained the quoted text. Otherwise denied.
18. Admitted insofar as the plaintiff was offered an employment
contract, as he has been offered previously. The offer of the contract was
not the consequence of his filing a discrimination charge; it was a
consequence of the plaintiff finally agreeing to communicate with the
Business Administrator. Otherwise denied.
19. Denied.
20. Admitted insofar as defendant Buccellato, having a
reasonable basis to believe that municipal work was being performed by
a local vendor in violation of applicable ethics laws, reported his
concerns to the Prosecutor’s Office. Otherwise denied.
21. Admitted insofar as the Prosecutor’s Office investigated the
claims and concluded the investigation with a letter containing the
quoted language. Otherwise denied.
22. Denied.
23. Admitted insofar as the plaintiff was disciplined for
misconduct on October 8, 2009; otherwise denied.
24. Admitted insofar as one of the witnesses, who subsequently
filed a lawsuit against the Borough alleging excessive force by the
plaintiff, was Mr. Gray. Otherwise neither admitted nor denied;
unknown to defendants.
25. Admitted insofar as Mr. Gray filed a Complaint. Otherwise
denied.
26. Denied.
27. Admitted insofar as the County Prosecutor ordered that the
Chief’s weapon be removed and that he be sent for a fitness for duty
examination. Otherwise denied.
28. Denied.
29. Admitted insofar as the plaintiff was examined by both Dr.
Williams and Dr. Craig; otherwise denied.
30. Admitted insofar as the Prosecutor’s Office issued a letter on
or about May 12, 2010 containing the quoted text; otherwise denied.
31. Neither admitted nor denied; unknown to defendants.
32. Admitted insofar as the Borough filed disciplinary charges;
otherwise denied.
33. Denied.
34. Denied.
35. Admitted insofar as the County Prosecutor rescinded his
prior directive and directed that the plaintiff not be re-armed. Otherwise
denied.
36. Admitted insofar as the plaintiff was suspended with pay
and disciplinary charges were filed against him; otherwise denied. The
plaintiff declined to testify at the disciplinary hearing for unknown

reasons, as the Prosecutor’s termination of its investigation removed any
risk of self-incrimination. Otherwise denied.
37. Denied.
38. Admitted insofar as the Attorney General Guidelines apply to
municipal police departments. Otherwise denied.
39. Denied.
40. Denied; the plaintiff was notified by the Monmouth County
Prosecutor’s Office, as the agency to whom allegations constituting a
crime must be reported and handed over.
41. Denied.
42. Denied.
43. Denied.
44. Denied.
45. Denied.
46. Denied.
47. Admitted insofar as the charges included the quoted text;
otherwise denied.
48. Denied.
49. Denied.
50. Admitted insofar as this charge was based on the
transponder records described; otherwise denied.
51. Denied.
52. Denied.
53. Denied.
54. Admitted insofar as the plaintiff was entitled to a hearing;
otherwise denied.
55. Admitted insofar as Richard Gantner was appointed hearing
officer; otherwise denied.
56. Admitted insofar as plaintiff’s counsel challenged the
integrity of the process and that his client opted not to testify; otherwise
denied.
57. Denied.
58. Denied.
59. Admitted insofar as the hearing was held on September 2,
October 12, October 13 and December 17, 2010. Otherwise denied.
60. First two sentences admitted; third sentence denied.
61. Denied.
62. Denied.
63. Admitted insofar as the EEOC conducted an investigation;
otherwise neither admitted nor denied; unknown to the defendants.
64. Admitted that the EEOC issued a “right to sue” letter
containing the quoted text; otherwise denied.
65. Admitted insofar as the EEOC “right to sue” letter was
accompanied by a letter inviting the parties to participate in mediation
and that the Borough declined mediation; otherwise denied.
66. Admitted.
67. Admitted.
68. Denied. Alston submitted to a physician of his choosing for
a fitness-for-duty exam but withdrew consent to release the results of
same. As such, the MCPO refused to return his weapons. He has
returned to work unarmed.
69. Admitted insofar as plaintiff’s counsel sent a letter to the
Borough attorney containing such text; otherwise denied.
70. Admitted insofar as the Borough consulted with the
Prosecutor’s Office regarding plaintiff’s demands to return to work and
have his weapons returned; further admitted that the Prosecutor’s Office
directed that the plaintiff not be re-armed. Otherwise denied.
71. Admitted that the Prosecutor’s Office forwarded a letter
containing such text.
72. Admitted.
73. Denied, as there was no “secret arrangement.” Otherwise
denied.
74. First sentence neither admitted nor denied; unknown to
defendants. Second sentence denied. Third sentence neither admitted
nor denied; unknown to defendants. Fourth sentence admitted insofar
as plaintiff’s counsel sent a letter containing such text on or about
December 6, 2011. Otherwise denied.
75. Admitted insofar as the Borough labor attorney sent a letter
on or about December 9, 2011 containing such text.

76. Admitted insofar as plaintiff’s counsel wrote a subsequent
letter to the Borough’s labor attorney containing such text. Otherwise
denied.
77. First sentence admitted; remaining sentences denied.
78. First two sentences admitted. Third sentence admitted
insofar as plaintiff was not paid for working after he had exhausted his
accumulated sick time. Otherwise denied.
79. Admitted insofar as the plaintiff returned to work on
February 1, 2012. Otherwise denied.
80. Neither admitted nor denied; unknown to these defendants.
81. Admitted.
82. Denied.
83. Denied.
87. Denied.
88. Denied.
89. Admitted insofar as Mr. Gray filed a lawsuit against the
Borough and the plaintiff alleging injury on account of excessive force.
90. Denied.
91. Denied.
92. Admitted.
93. Denied.
94. First sentence denied; second sentence denied; third and
fourth sentences neither admitted nor denied; unknown to these
defendants.
95. Denied; as in any case where two defendants have
potentially divergent legal positions, separate attorneys were retained to
defend each of the two defendants. This defense was funded entirely by
the Joint Insurance Fund and plaintiff bore no financial responsibility.
Otherwise denied.
96. Denied; the letter in question indicated that no coverage
would be provided for actions taken outside the scope of plaintiff’s
employment; he was to be completely indemnified for any actions taken
within the scope of his employment, pursuant to the terms of the JIF
insurance coverage provided. Otherwise denied.
97. Denied.
98. Admitted insofar as plaintiff’s counsel sent a letter
containing such text; otherwise denied.
99. Denied except insofar as the letter of February 8, 2012
includes the quoted text. Otherwise denied.
100. Denied.
101. Denied.
102. Denied.
103. Admitted insofar as Gray’s case was settled with a payment
by the Joint Insurance Fund in exchange for the dismissal of all claims
against all defendants, including Alston.
104. Admitted insofar as the Borough’s liability was limited to any
unlawful actions by Alston and that because of his conduct the Joint
Insurance Fund paid $7,500.00 to settle the claim. Otherwise denied.
COUNT ONE
105. Denied.
COUNT TWO
106. Denied.
COUNT THREE
107. Denied.
COUNT FOUR
108. Denied.
COUNT FIVE
109. Denied.
COUNT SIX
110. Denied.
COUNT SEVEN
111. Denied.
COUNT EIGHT
112. Denied.
113. Denied.
WHEREFORE, the defendants demand judgment dismissing the
Complaint with prejudice and awarding fees, costs and such other relief
as the Court may deem just and equitable.
FIRST SEPARATE DEFENSE
The Complaint fails to state a claim upon which relief may be
granted.
SECOND SEPARATE DEFENSE
Defendant was not guilty of any negligence, wrongdoing, breach of
duty, or misconduct that was the proximate or producing cause of any
injuries or damages alleged by plaintiff.
THIRD SEPARATE DEFENSE
Any claims against answering defendant are barred by
contributory negligence or should be mitigated by comparative negligence
pursuant to N.J.S.A. 2A:15-5.1, et seq.
FOURTH SEPARATE DEFENSE
Any and all injuries and damages were proximately caused by
actions or negligence of plaintiff or by persons not under the control of
this defendant.
FIFTH SEPARATE DEFENSE
Any and all injuries and damages were proximately caused solely
by the actions or negligence of the co-defendants.

SIXTH SEPARATE DEFENSE
Any injuries and damages were caused by and arose out of risks of
which plaintiff had full knowledge and which plaintiff assumed.
SEVENTH SEPARATE DEFENSE
Any and all injuries and damages were caused solely by the
negligence of the plaintiff.
EIGHTH SEPARATE DEFENSE
Any and all injuries and damages were caused solely by the
intentional behavior of the plaintiff.
NINTH SEPARATE DEFENSE
Defendant owed no legal duty to the plaintiff.
TENTH SEPARATE DEFENSE
Defendant breached no duty owed to the plaintiff.
ELEVENTH SEPARATE DEFENSE
Defendant performed each and every duty, if any, owed to plaintiff.
TWELFTH SEPARATE DEFENSE
Plaintiff has not been deprived of any right, privilege, or immunity
created or recognized by the United States Constitution, the New Jersey
Constitution, any statute, or any law.
THIRTEENTH SEPARATE DEFENSE
Defendants affirmatively and specifically plead each and every
defense, limitation, and immunity, and protection provided under the
New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq., and hereby place
plaintiff on notice that each such statutory provision is hereby raised as
a separate and affirmative defense throughout every stage of the case.
FOURTEENTH SEPARATE DEFENSE
Defendant is immune from liability for any damages for pain and
suffering under N.J.S.A. 59:9-2.
FIFTEENTH SEPARATE DEFENSE
Defendant is entitled to a credit for any benefits paid to plaintiff
under N.J.S.A. 59:9-2.
SIXTEENTH SEPARATE DEFENSE
Any actions or failure to act on the part of defendant were in the
nature of the discretionary activity within meaning of N.J.S.A. 59:2-3.
SEVENTEENTH SEPARATE DEFENSE
Defendant is entitled to the good faith immunity established by
N.J.S.A. 59:3-3.
EIGHTEENTH SEPARATE DEFENSE
Plaintiff failed to comply with the conditions precedent for making
any claim against defendant by not filing the claim in the manner and
within the time provided by N.J.S.A. 59:8-3, 59:8-4, 59:8-5, 59:8-7, and
59:8-8.
NINTEENTH SEPARATE DEFENSE
Defendant is entitled to immunity under N.J.S.A. 59:2-2.
TWENTIETH SEPARATE DEFENSE
Defendant is entitled to immunity under N.J.S.A. 59:2-10

TWENTY-FIRST SEPARATE DEFENSE
Defendant is immune from any prejudgment interest under the
New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq.
TWENTY-SECOND SEPARATE DEFENSE
While denying any liability, any recovery to which plaintiff might
otherwise be entitled to subject to the provisions and limitations provided
in the New Jersey Tort Claims Act.
TWENTY-THIRD SEPARATE DEFENSE
Defendant neither took nor sanctioned any of the actions alleged
by plaintiff.
TWENTY-FOURTH SEPARATE DEFENSE
Neither this defendant nor any of its agents had any personal
participation in the alleged occurrence.
TWENTY-FIFTH SEPARATE DEFENSE
Defendant acted upon probable cause and in good faith in carrying
out all duties.
TWENTY-SIXTH SEPARATE DEFENSE
Any action or inaction on the part of defendant was the result of
the exercise of judgment or discretion vested in defendant within the
meaning of the applicable law.
TWENTY-SEVENTH SEPARATE DEFENSE

Defendant acted in good faith without malicious intent in carrying
out all duties.
TWENTY-EIGHTH SEPARATE DEFENSE
Defendant at all times acted reasonably, in good faith, and in
accordance with all applicable laws of the United States, State of New
Jersey, and local ordinances.
TWENTY-NINTH SEPARATE DEFENSE
While denying any liability, co-defendants were not acting as
agents of this defendant at the times they committed the alleged acts in
the Complaint.
THIRTIETH SEPARATE DEFENSE
While denying any liability, this defendant did not know and had
no reasonable basis to know that co-defendants had the propensity to
engage in the acts alleged in the Complaint.
THIRTY-FIRST SEPARATE DEFENSE
All of the acts of defendant were performed in good faith and
defendant is therefore entitled to qualified immunity.
THIRTY-SECOND SEPARATE DEFENSE
Defendant is entitled to absolute immunity.
THIRTY-THIRD SEPARATE DEFENSE
To the extent alleged, if any, defendant did not engage in a
conspiracy against plaintiff and did not have a custom, plan or practice
that violated plaintiff’s rights.

THIRTY-FOURTH SEPARATE DEFENSE
Punitive damages cannot be awarded against defendant under
both common law and statute.
THIRTY-FIFTH SEPARATE DEFENSE
There is no basis in law or fact for the award of damages under the
tort of emotional distress.
THIRTY-SIXTH SEPARATE DEFENSE
Plaintiff is not entitled to an award of economic damages against
defendant.
THIRTY-SEVENTH SEPARATE DEFENSE
Plaintiff is not entitled to an award of interest against defendant.
THIRTY-EIGHTH SEPARATE DEFENSE
Plaintiff is not entitled to an award of counsel fees against
defendant.
THIRTY-NINTH SEPARATE DEFENSE
Defendant did not violate any duty owed to plaintiff under common
law, statute, regulations, or standards.
FORTIETH SEPARATE DEFENSE
Any alleged damages were due to unavoidable circumstances and
causes beyond the control or fault of defendant.
FORTY-FIRST SEPARATE DEFENSE

Defendant was acting pursuant to law in performing any of the
acts alleged in the Complaint.
FORTY-SECOND SEPARATE DEFENSE
Service of process not effectuated upon defendant, and defendant
reserves the right to move to dismiss for insufficiency of process and
insufficiency of service of process.
FORTY-THIRD SEPARATE DEFENSE
Plaintiff’s claims are barred by the entire controversy doctrine.
FORTY-FOURTH SEPARATE DEFENSE
This court lacks jurisdiction over one or more of plaintiff’s claims.
FORTY-FIFTH SEPARATE DEFENSE
Plaintiff’s Complaint is barred by the applicable statute of
limitations.
FORTY-SIXTH SEPARATE DEFENSE
Plaintiff’s claims are barred by the doctrines of estoppel, laches,
waiver, and/or unclean hands.
FORTY-SEVENTH SEPARATE DEFENSE
Plaintiff failed to take reasonable and necessary measures to
mitigate damages.
FORTY-EIGHTH SEPARATE DEFENSE
To the extent not inconsistent with anything pleaded herein, this
defendant joins in the affirmative defenses asserted by the co-
defendants.
FORTY-NINTH SEPARATE DEFENSE
Defendant reserves its right to assert such other affirmative
defenses as continuing investigation and discovery may indicate.
FIFTIETH SEPARATE DEFENSE
Defendant had legitimate, nondiscriminatory reasons for all acts
and omissions of which plaintiff complains.
FIFTY-FIRST SEPARATE DEFENSE
Plaintiff has failed to exhaust all available administrative remedies.
JURY DEMAND
The defendant hereby demands trial by a jury as to all issues.

Attorneys for Defendants
By:________________________________
Eric L. Harrison
DATED: July 16, 2012
Case 3:12-cv-02730-MAS-TJB Document 3-1 Filed 07/16/12 Page 1 of 1 PageID: 55
Counsel Associates
JOEL N. WERBEL> LORI BROWN STERNBACK*+ JACQUELINE C. CUOZZO+

JOHN METHFESSEL, JR.> MARC DEMBLING*+ EDWARD D DEMBLING>
EDWARD L. THORNTON*> PAUL J. ENDLER JR.> MICHAEL R. EATROFF>
METHFESSEL & WERBEL FREDRIC PAUL GALLIN*+^
MARK M. BRIDGE^
GERALD KAPLAN+
JARED P. KINGSLEY*+
JENNIFER M. HERRMANN^=
MAURICE JEFFERSON>
A Professional Corporation STEPHEN R. KATZMAN# JOHN R. KNODEL*+ JASON JUDOVIN+
WILLIAM S.BLOOM>* CHARLES T. MCCOOK, JR. *> MARISSA KEDDIS+
ERIC L. HARRISON*+ MARTIN R. MCGOWAN, JR.> FRANK J. KEENAN+^
MATTHEW A. WERBEL> LESLIE A. KOCH+
ALLISON M. KOENKE>
Of Counsel VIVIAN LEKKAS+
JOHN METHFESSEL, SR.> DANIELLE M. LOZITO+
DONALD L. CROWLEY*+ CAITLIN LUNDQUIST>
RICHARD A. NELKE~
July 16, 2012 RAINA M. PITTS^

MICHAEL POREDA+
CAROLINE PYRZ^
MATTHEW L. RACHMIEL>
VIA E-FILING WILLIAM J. RADA+

AMANDA J. SAWYER^
Clerk, United States District Court - Trenton BORIS SHAPIRO>

GINA M. STANZIALE>
Clarkson S. Fisher Fed. Bldg., 402 E. State Street EDWARD TOBIN+

ADAM S. WEISS<
Trenton, NJ 08608 * Certified by the Supreme Court of

New Jersey as a Civil Trial Attorney
+Member of NY & NJ Bar
RE: ALSTON, JAMES VS. BOROUGH OF MATAWAN

^ Member of PA & NJ Bar
>Member of NJ Bar only
Our File No. : 76191 ELH

# Member of NJ & LA. Bar
<Member of NJ & DC Bar
Docket No. : 3:12-CV-02730-FLW-TJB

~Member of NY, NJ & DC Bar
=Member of FL Bar
Please reply to New Jersey

Dear Sir/Madam:
I enclose an Answer on behalf of the defendants.
Respectfully Submitted,
Eric L. Harrison
harrison@methwerb.com
Ext. 138
ELH:jzm/
Enc. (Answer)
cc: VIA E-MAIL

David Corrigan, Esq.
548 W. Front
Keyport, NJ 07735
3 Ethel Road Suite 300 P.O. Box 3012 Edison, NJ 08818 (732) 248-4200 FAX (732) 248-2355
450 Seventh Avenue Suite 1400 New York, NY 10123 (212) 947-1999 FAX (212) 947-3332
101 E. Lancaster Avenue Suite 304 Wayne, PA 19087 (610) 902-0150 FAX (610) 902-0152
www.njinslaw.com
Case 3:12-cv-02730-MAS-TJB Document 3-2 Filed 07/16/12 Page 1 of 1 PageID: 56
Our File No. 76191
CERTIFICATE OF MAILING
The undersigned hereby certifies as follows:
l. I am employed by the law firm of Methfessel & Werbel.
2. On July 16, 2012 the undersigned prepared and

forwarded copies of the within correspondence to the following
parties:
VIA E-FILING
Clerk, United States District Court - Trenton
Clarkson S. Fisher Fed. Bldg., 402 E. State
Street
Trenton, NJ 08608
David F. Corrigan, Esq.

548 W. Front
Keyport, NJ 07735
3. I certify that the foregoing statements made by me are true. I

am aware that if any of the foregoing statements made by me are willfully
false, I am subject to punishment.
____________________________________
Eric L. Harrison

Matawan's Response To Alston

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Case 3:12-cv-02730-MAS-TJB Document 3 Filed 07/16/12 Page 1 of 18 PageID: 37

METHFESSEL & WERBEL, ESQS.

JAMES M. ALSTON UNITED STATES DISTRICT COURT –

BOROUGH OF MATAWAN; PAUL

The defendants, Borough of Matawan, Paul Buccellato and William

Garafolo, by way of Answer to the Complaint, state as follows:

1. Admitted that plaintiff asserts such claims; otherwise

8. Admitted; Mr. Garafolo continues to serve as Business

10. Admitted insofar as plaintiff served as Chief of Police from

approximately July 2008 through his demotion in 2011. Otherwise

14. Admitted insofar as McGowan was promoted to Chief of

Police and was provided with a contract which included terms

commensurate with those provided to all officers. Otherwise denied.

Police in 2006; otherwise denied.

16. Denied; the plaintiff was offered employment contract with

terms similar to those of his predecessors and commensurate with the

terms provided to all police officers. Otherwise denied.

17. Admitted insofar as plaintiff filed a charge of discrimination

which contained the quoted text. Otherwise denied.

18. Admitted insofar as the plaintiff was offered an employment

not the consequence of his filing a discrimination charge; it was a

consequence of the plaintiff finally agreeing to communicate with the

Business Administrator. Otherwise denied.

20. Admitted insofar as defendant Buccellato, having a

reasonable basis to believe that municipal work was being performed by

a local vendor in violation of applicable ethics laws, reported his

concerns to the Prosecutor’s Office. Otherwise denied.

21. Admitted insofar as the Prosecutor’s Office investigated the

claims and concluded the investigation with a letter containing the

quoted language. Otherwise denied.

23. Admitted insofar as the plaintiff was disciplined for

misconduct on October 8, 2009; otherwise denied.

24. Admitted insofar as one of the witnesses, who subsequently

filed a lawsuit against the Borough alleging excessive force by the

plaintiff, was Mr. Gray. Otherwise neither admitted nor denied;

25. Admitted insofar as Mr. Gray filed a Complaint. Otherwise

27. Admitted insofar as the County Prosecutor ordered that the

examination. Otherwise denied.

29. Admitted insofar as the plaintiff was examined by both Dr.

Williams and Dr. Craig; otherwise denied.

30. Admitted insofar as the Prosecutor’s Office issued a letter on

31. Neither admitted nor denied; unknown to defendants.

32. Admitted insofar as the Borough filed disciplinary charges;

35. Admitted insofar as the County Prosecutor rescinded his

36. Admitted insofar as the plaintiff was suspended with pay

plaintiff declined to testify at the disciplinary hearing for unknown

reasons, as the Prosecutor’s termination of its investigation removed any

risk of self-incrimination. Otherwise denied.

38. Admitted insofar as the Attorney General Guidelines apply to

municipal police departments. Otherwise denied.

40. Denied; the plaintiff was notified by the Monmouth County

Prosecutor’s Office, as the agency to whom allegations constituting a

crime must be reported and handed over.

47. Admitted insofar as the charges included the quoted text;

50. Admitted insofar as this charge was based on the

transponder records described; otherwise denied.

54. Admitted insofar as the plaintiff was entitled to a hearing;

55. Admitted insofar as Richard Gantner was appointed hearing

officer; otherwise denied.

56. Admitted insofar as plaintiff’s counsel challenged the

59. Admitted insofar as the hearing was held on September 2,

October 12, October 13 and December 17, 2010. Otherwise denied.

60. First two sentences admitted; third sentence denied.

63. Admitted insofar as the EEOC conducted an investigation;

otherwise neither admitted nor denied; unknown to the defendants.

64. Admitted that the EEOC issued a “right to sue” letter