MAGGS & McDERMOTT, LLC 800 Old Bridge Road Brielle, New Jersey 08730 (732) 223-9870 Attorneys for Plaintiff Our File Number 3947.0001 DIANNE NEHMAD; JAMES MCGOWAN, Administrator CTA of THE ESTATE OF CATHERINE F. MCGOWAN (deceased); THE ESTATE OF CATHERINE F. MCGOWAN; and THE HEIRS OF THE ESTATE OF CATHERINE F. MCGOWAN, vs. Plaintiffs, ANTHONY MILANO; THE VILLAGE AT LINWOOD CONDOMINIUM ASSOCIATION INC.; THOMPSON REALTY CO.; JAMES A. E. BAKER, individually and as Chief of Police for the City of Linwood Police Department; CITY OF LINWOOD; JOHN DOES, 1-10, (fictitious individuals); and ABC 1-10, (fictitious entities), Defendants. ANTHONY MILANO, Plaintiff, vs. Defendant/Third-Party THE VILLAGE AT LINWOOD, Third-Party Defendant. SUPERIOR COURT OF NEW JERSEY LAW DIVISION ATLANTIC COUNTY DOCKET NO. ATL-L-4013-09 Civil Action SECOND AMENDED COMPLAINT, DESIGNATION OF TRIAL COUNSEL AND JURY DEMAND The Plaintiffs, Dianne Nehmad, James McGowan, as the Administrator CTA of The Estate of Catherine F. McGowan (deceased), The Estate of Catherine F. McGowan, and -1-
the Heirs of the Estate of Catherine F. McGowan (collectively the Plaintiff ), with an address in care of 4030 Ocean Heights Avenue, Egg Harbor Township, New Jersey 08234, by way of First Amended Complaint against the Defendants, Anthony Milano, The Village at Linwood Condominium Association Inc., Thompson Realty Co., James A. E. Baker, Chief of City of Linwood Police Department, City of Linwood, John Does, 1-10, fictitious individuals, and ABC 1-10, fictitious names, say that THE PARTIES 1. The Plaintiff, Dianne Nehmad resides in Egg Harbor Township, New Jersey. 2. The Plaintiff, James McGowan, is the Administrator CTA of The Estate of Catherine F. McGowan (deceased). 3. The Defendant, Anthony Milano, is an individual with an address at The Village at Linwood Condominium, Unit E-12, 550 Central Avenue, Linwood, New Jersey. 4. Upon information and belief, the Defendant, The Village at Linwood Condominium Association Inc. (the Association ), is the homeowners association which is required by law to be formed for the property where this incident occurred which is located in the City of Linwood, County of Atlantic and State of New Jersey. 5. Upon information and belief, the Defendant, Thompson Realty Co. ( Thompson Realty ), is a New Jersey corporation with an address at 1613 Atlantic Avenue, Atlantic City, New Jersey 08404, and is the property manager for the location where this incident occurred. -2-
6. Upon information and belief, the Defendant, James A. E. Baker ( Baker ), is an individual who at all relevant times herein was employed as and is presently the Chief of Police for the City of Linwood Police Department, which is located at 400 Poplar Avenue, Linwood, New Jersey 08221. 7. Upon information and belief, the Defendant, City of Linwood, is a is a New Jersey Municipal Corporation located in Atlantic County and maintains its governmental offices at 400 Poplar Avenue, Linwood, New Jersey 08221. 8. The Defendants, John Does, 1-10 (collectively John Does ), are individuals who may be liable to the Plaintiffs for the injuries and damages sustained by the Plaintiffs and whose true names are unknown to the Plaintiffs at this time. 9. The Defendants, ABC 1-10 (collectively ABC Entities ), are entities who may have been responsible for the injuries and damages sustained by the Plaintiffs and whose true names are unknown to the Plaintiffs at this time. 10. The Defendants, Anthony Milano, the Association, Thompson Realty, John Does, and ABC Entities are collectively referred to herein as the Defendants. 11. The Defendants, James A. E. Baker, individually and as the Chief of Police for City of Linwood Police Department, City of Linwood, ABC Entities, and John Does (individually and in their professional capacities as employees and/or agents of City of Linwood) are collectively referred to herein as the Linwood Defendants. 12. The Village at Linwood, a Condominium (hereinafter The Village ), is the condominium complex where this incident occurred which is located on Central Avenue in the City of Linwood, County of Atlantic, and State of New Jersey. -3-
FACTS 13. The Plaintiff, Dianne Nehmad, is the owner of Unit E-10 in The Village located at 550 Central Avenue, Linwood, New Jersey. 14. The Plaintiff s, Dianne Nehmad s, condominium is physically located directly below the Defendant s, Anthony Milano s, condominium Unit E-12. 15. The Plaintiff, Dianne Nehmad, is the daughter of Catherine F. McGowan ( Mrs. McGowan ), who is now deceased as a result of the actions of the Defendant, Anthony Milano, as set forth herein. 16. Prior to October 8, 2009, the Plaintiff s, Dianne Nehmad s, Condominium Unit E-10 ha been occupied by Mrs. McGowan for approximately twenty (20) years as her residence. 17. For many months prior to October 8, 2009, the Defendant, Anthony Milano, embarked on a course of action designed to intimidate, threaten and terrorize Mrs. McGowan and Mrs. McGowan s neighbors in the Village. This course of action included, but was not limited to, the following a. On August 5, 2009, the Defendant, Anthony Milano, screamed mother f*?#er McGowan into Mrs. McGowan s den window approximately 3-4 times. The Defendant, Anthony Milano, then screamed the same thing into Mrs. McGowan s living room door and sliding glass door. This verbal attack was totally unprovoked; b. On August 20, 2009 at approximately 1045 p.m., the Defendant, Anthony Milano, again screamed mother f*?#er McGowan three times into Mrs. McGowan s den window. Again, this verbal attack was totally unprovoked; c. On August 23, 2009 at approximately 430 a.m., the Defendant, Anthony Milano, repeatedly banged on the floor above Mrs. McGowan s bedroom while repeatedly screaming mother f*?#er. This awoke Mrs. McGowan from a sound sleep and terribly frightened Mrs. McGowan. Mrs. McGowan called the police as a result of this incident; -4-
d. On August 27, 2009 at 730 a.m., the Defendant, Anthony Milano, again began repeatedly banging on the floor above Mrs. McGowan s bedroom while repeatedly screaming mother f*?#er. Mrs. McGowan again called the police; and e. On September 19, 2009 at 730 a.m., the Defendant, Anthony Milano, was going from room to room above Mrs. McGowan s residence banging on walls and floors and cursing while repeatedly screaming Don t you get it - mother f*?#er. This tirade lasted approximately 15-20 minutes. Mrs. McGowan, frightened, again called the police. While Mrs. McGowan was on the phone, the police dispatcher asked Mrs. McGowan to stay on the phone. The Defendant then proceeded to bang on Mrs. McGowan s front door, yelling You re a mother f*?#er at least four times. The Defendant s banging on Mrs. McGowan s front door was forceful enough to dislodge the curtain from the inside of Mrs. McGowan s front door. Mrs. McGowan, terrified, asked the dispatcher on the phone to please hurry for she was in fear of her life. 18. As a result of the Defendant s, Anthony Milano s, course of threatening, intimidating and terrorizing action, Mrs. McGowan, with apprehension and fear for her personal safety, was forced to move out of her home and reside with the Plaintiff, Dianne Nehmad, and her husband in their Egg Harbor Township residence. 19. As a result of the Defendant s, Anthony Milano s, actions, Mrs. McGowan filed an intentional harassment complaint with the Linwood Municipal Court against the Defendant, Anthony Milano. In support of her complaint, Mrs. McGowan gave the police a statement describing the Defendant s, Anthony Milano s, course of conduct. Virginia Olsson, a neighbor of Mrs. McGowan, also provided the police with a statement detailing Mr. Milano s threatening conduct. See Exhibit A attached hereto and made a part hereof. The Municipal Court matter was filed as Case No. 09-10326 and was scheduled for hearing on the evening of October 8, 2009. 20. As a result of the Defendant s, Anthony Milano s, threatening conduct towards Mrs. McGowan, a letter was written by counsel for Mrs. McGowan to the -5-
property manager of the Village notifying and complaining of the Defendant s, Anthony Milano s, conduct. See Exhibit B attached hereto and made part hereof. 21. The Association and Thompson Realty each had actual and/or constructive notice of the intimidating, threatening and terrorizing actions of the Defendant, Anthony Milano, towards Mrs. McGowan and other residents of the Village, and as a result knew or should have known that the Defendant, Anthony Milano, was likely to harm the residents of the Village and others lawfully on the property of the Village, including Mrs. McGowan and the Plaintiff, Dianne Nehmad. 22. On the morning of October 8, 2009, Mrs. McGowan returned to her residence in the Village in order to retrieve some of her personal effects and clothing. In the parking lot of the Village, the Defendant, Anthony Milano, physically and brutally attacked Mrs. McGowan stabbing her with a knife multiple times. 23. As the Defendant, Anthony Milano, was attacking Mrs. McGowan, the Plaintiff, Dianne Nehmad, arrived at the scene and witnessed the attack and the brutal murder of her mother. 24. As the Plaintiff, Dianne Nehmad, arrived at the place of the attack, she was horrified as she saw the Defendant, Anthony Milano, on top of Mrs. McGowan, repeatedly stabbing her mother. 25. The Plaintiff, Dianne Nehmad, attempted to come to Mrs. McGowan s aid. While in the process of coming to Mrs. McGowan s aid, the Defendant, Anthony Milano, physically attacked the Plaintiff, Dianne Nehmad. The Defendant, Anthony Milano, maliciously and repeatedly stabbed and cut the Plaintiff, Dianne Nehmad, causing multiple and serious injuries. -6-
26. Ultimately, the Defendant, Anthony Milano, was eventually subdued by a third party who restrained him until the police arrived. 27. Mrs. McGowan ultimately died as a result of multiple stab wounds inflicted by the Defendant, Anthony Milano. COUNT ONE (Assault and Battery Anthony Milano) 28. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 29. On October 8, 2009, the Defendant, Anthony Milano, viciously and maliciously did assault, attack, touch and stab the Plaintiff, Dianne Nehmad. 30. The Defendant s, Anthony Milano s, conduct as aforesaid, was without the Plaintiff s, Dianne Nehmad s, consent and with the express and exclusive purpose of causing grievous and severe personal injury. 31. The Defendant s, Anthony Milano s, conduct was intentional and without provocation. 32. As a direct and proximate result of the Defendant s, Anthony Milano s, conduct, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses, and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. -7-
WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendant, Anthony Milano, for compensatory, consequential and incidental damages, punitive damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT TWO (Negligence Anthony Milano) 33. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 34. At all relevant times described herein, the Defendant, Anthony Milano, was emotionally and psychologically impaired which prevented him from understanding the nature and consequences of his actions, and prevented him from the intended consequences of his actions. 35. At all relevant times described herein, the Defendant, Anthony Milano, negligently caused harm or injury to the Plaintiff, Dianne Nehmad. 36. The Defendant s, Anthony Milano s, conduct as aforesaid was negligent and careless and in breach of the Defendant s, Anthony Milano s, duty not to injure or otherwise cause harm to third parties, including the Plaintiff, Dianne Nehmad. 37. As a direct and proximate result of the Defendant s, Anthony Milano s, conduct, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses, and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of -8-
money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendant, Anthony Milano, for compensatory, consequential and incidental damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT THREE (Gross Negligence Anthony Milano) 38. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 39. The Defendant s, Anthony Milano s, conduct as aforesaid, was grossly negligent, wanton and reckless and in breach of the Defendant Anthony Milano s duty not to injure or otherwise cause harm to third parties, including the Plaintiff, Dianne Nehmad. 40. As a direct and proximate result of the Defendant s, Anthony Milano s, conduct, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses, and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. -9-
WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendant, Anthony Milano, for compensatory, consequential and incidental damages, punitive damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT FOUR (Negligent Infliction of Emotional Distress Anthony Milano) 41. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 42. The Defendant, Anthony Milano, had a duty to conduct himself in a manner so as to not cause fear of physical injury or emotional distress to third parties, including the Plaintiff, Dianne Nehmad. 43. In breach of said duty, the Defendant s, Anthony Milano s, conduct as aforesaid caused a reasonable fear of physical injury, thereby causing severe emotional distress to the Plaintiff, Dianne Nehmad. 44. As a direct and proximate result of said breach, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. -10-
WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendant, Anthony Milano, for compensatory, consequential and incidental damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT FIVE (Intentional Inflection of Emotional Distress Anthony Milano) 45. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 46. The Defendant s, Anthony Milano s, conduct as aforesaid was undertaken with intentional, malicious, wanton, and with reckless disregard for the Plaintiff s, Dianne Nehmad s, rights and sensitivities, and with foreseeabililty of unintended and intended harmful consequences causing a reasonable fear of physical injury and thereby causing severe emotional distress. 47. As a direct and proximate result of the Defendant s, Anthony Milano s, conduct, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses, and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendant, Anthony Milano, for compensatory, consequential and incidental damages, -11-
punitive damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT SIX (Invasion of Privacy Anthony Milano) 48. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 49. The Defendant, Anthony Milano, negligently invaded the privacy of the Plaintiff, Dianne Nehmad, by the intrusion upon the Plaintiff s private affairs and person which would be highly offensive to a reasonable person. 50. As a direct and proximate result of the Defendant s, Anthony Milano s, conduct, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses, and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendant, Anthony Milano, for compensatory, consequential and incidental damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT SEVEN (False Imprisonment Anthony Milano) -12-
51. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 52. The Defendant, Anthony Milano, intentionally confined the Plaintiff, Dianne Nehmad, within said boundaries without legal justification. 53. The Defendant s, Anthony Milano s, conduct under the circumstances was performed outrageously, violently and with malice, and with wanton and willfull disregard for the Plaintiff, Dianne Nehmad. 54. As a direct and proximate result of the Defendant s, Anthony Milano s, conduct, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses, and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendant, Anthony Milano, for compensatory, consequential and incidental damages, punitive damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT EIGHT (Portee Claim Anthony Milano) 55. The Plaintiffs repeat and reincorporate herein all prior allegations set forth -13-
56. As a result of the conduct of the Defendant, Anthony Milano, as aforesaid, the Plaintiff, Dianne Nehmad, witnessed in direct proximity the attack described herein resulting in the wrongful death of a person with whom she shared an intimate, familial relationship that was stable, enduring, substantial and mutually supportive, namely, her mother, Mrs. McGowan. 57. As a direct and proximate result of the Defendant s, Anthony Milano s, conduct, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, suffered severe physical and emotional injury resulting from the witnessing of the attack upon her mother, Mrs. McGowan, which was performed by Defendant, Anthony Milano, with the disregard of persons who foreseeably might be harmed by this act, underwent medical treatment and incurred medical expenses and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendant, Anthony Milano, for compensatory, consequential and incidental damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT NINE (Negligence The Association, Thompson Realty, John Does, and ABC Entities) -14-
58. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 59. On or about October 8, 2009, the Defendants, the Association, Thompson Realty, John Does, and ABC Entities were the owners, lessors, lessees, tenants, operators, property managers, maintenance and/or security providers, and/or in control of the Village, including, but not limited to, the area where the acts set forth herein took place. 60. Said Defendants each had actual and/or constructive notice of the intimidating, threatening and terrorizing actions of the Defendant, Anthony Milano, towards Mrs. McGowan and the other residents of the Village, and as a result knew or should have known that the Defendant, Anthony Milano, was likely to harm the residents of the Village and others lawfully on the property of the Village, including Mrs. McGowan and the Plaintiff, Dianne Nehmad. 61. Said Defendants had a duty to own, control, operate, maintain, budget, manage, hire, select proper individuals and/or contractors; occupy, lease, inspect, supervise, provide adequate training, provide adequate equipment, provide adequate and necessary security, safeguard property and property owners, provide adequate warnings; and otherwise manage and operate the Village and all of its common areas in a safe and proper manner so that the Plaintiff would receive no injuries therefrom. 62. Notwithstanding this duty, said Defendants jointly and severally breached their duty by negligently owning, controlling, operating, maintaining, budgeting, managing, hiring, selecting improper individuals and/or contractors; occupying, leasing, training, inspecting, supervising, providing inadequate training in dangerous -15-
conditions and situations, providing inadequate and necessary security, failing to safeguard property and property owners, and failing to provide necessary and adequate warnings at the Village and all of its common areas; and otherwise creating and/or maintaining or allowing a nuisance and/or dangerous condition to exist. 63. As a direct and proximate result of the negligent acts of said Defendants as aforesaid, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses, and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff demands judgment against the Defendants, the Association, Thompson Realty, John Does, and ABC Entities for compensatory, consequential and incidental damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT TEN (Gross Negligence The Association, Thompson Realty, John Does, and ABC Entities) 64. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 65. The Defendants, the Association, Thompson Realty, John Does, and ABC Entities, actions as described in this First Amended Complaint were grossly negligent, -16-
wanton and reckless, in breach of said Defendants duty not to injure or otherwise allow harm to the Plaintiff, Dianne Nehmad. 66. Said Defendants each had actual and/or constructive notice of the intimidating, threatening and terrorizing actions of the Defendant, Anthony Milano, towards Mrs. McGowan and the other residents of the Village, and as a result knew or should have known that the Defendant, Anthony Milano, was likely to harm the residents of the Village and others lawfully on the property of the Village, including Mrs. McGowan and the Plaintiff, Dianne Nehmad. 67. As a direct and proximate cause of said Defendants grossly negligent conduct, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendants the Association, Thompson Realty, John Does, and ABC Entities, for compensatory, consequential and incidental damages, punitive damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT ELEVEN (Breach of Contract The Association, Thompson Realty, John Does, and ABC Entities) -17-
68. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 69. The Defendants, the Association, Thompson Realty, John Does, and ABC Entities, entered into a contract, either express or implied, with the Plaintiff as homeowner at the Village and agreed to provide various services, including, but not limited to maintenance, security and supervision of the premises, including, but not limited to, all common areas. 70. In breach of that agreement, the Defendants as aforesaid failed to provide such services by failing to maintain and make the premises free from dangerous conditions, to supervise the premises to protect the residents of the Village from dangerous conditions and to otherwise properly maintain, supervise and protect the property and residents of the Village, including the Plaintiff, Dianne Nehmad. 71. As a direct and proximate cause of said Defendants breach of its agreement, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendants, the Association, Thompson Realty, John Does, and ABC Entities, for -18-
compensatory, consequential and incidental damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT TWELVE (Breach of Bylaws, Rules and Regulations The Association, Thompson Realty, John Does, and ABC Entities) 72. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 73. The Defendants, the Association, Thompson Realty, John Does, and ABC Entities, were the owners, lessors, lessees, tenants, operators, property managers, maintenance and/or security providers, and/or in control of the Village, including, but not limited to, the area where the acts set forth herein took place. 74. Said Defendants had the contractual obligation to comply with, and see to the enforcement of the by-laws, rules, regulations, master deed and related documents governing the use and operation of the Village, the condominium units and property, and the common elements of the Village. 75. Notwithstanding the contractual obligations of the Defendants, the Defendants failed to property comply with the by-laws, rules regulations, master deed and related documents governing the use and operation of the Village, the condominium units and property, and the common elements of the Village. 76. As a direct and proximate result of the breach by the Defendants of said documents, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses, and will continue to do so in the future through additional medical attention; will continue to experience physical -19-
and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendants, the Association, Thompson Realty, John Does, and ABC Entities, for compensatory, consequential and incidental damages, punitive damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT THIRTEEN (Breach of Fiduciary Duty The Association, Thompson Realty, John Does, and ABC Entities) 77. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 78. The Defendants, the Association, Thompson Realty, John Does, and ABC Entities, owed a fiduciary duty to the condominium unit owners to maintain the premises free of dangerous conditions, to provide adequate and necessary security, to provide adequate warnings and to otherwise manage and operate the Village and all of its common areas in a safe and proper manner so that the condominium unit owners would not be injured therefrom. 79. In breach of that fiduciary duty, said Defendants acted unreasonably, negligently and/or grossly negligent, wilful, wanton and in reckless disregard in breach of their fiduciary duty to the unit owners. 80. As a direct and proximate result of the negligence and/or gross negligence of these Defendants, as aforesaid, the Plaintiff, Dianne Nehmad, was seriously, -20-
permanently and painfully injured, suffered severe physical and emotional trauma, anguish, pain and suffering, underwent medical treatment and incurred medical expenses, and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendants, the Association, Thompson Realty, John Does, and ABC Entities, for compensatory, consequential and incidental damages, punitive damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT FOURTEEN (Enhancing the Risk of Personal Harm The Association, Thompson Realty, John Does, and ABC Entities) 81. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 82. The aforesaid negligence and/or gross negligence of the Defendants, the Association, Thompson Realty, John Does, and ABC Entities, enhanced the risk of harm and opportunity for injury to the Plaintiff, Dianne Nehmad, and was a substantial factor in producing the harm that came to the Plaintiff. 83. As a direct and proximate result of the negligence and/or gross negligence of these Defendants, as aforesaid, the Plaintiff, Dianne Nehmad, was seriously, permanently and painfully injured, suffered severe physical and emotional trauma, -21-
anguish, pain and suffering, underwent medical treatment and incurred medical expenses, and will continue to do so in the future through additional medical attention; will continue to experience physical and emotional anguish, pain and suffering, was compelled to expend further sums of money as a result of this attack, will continue to do so in the future, and sustained such other damages as will be demonstrated at time of trial. WHEREFORE, the Plaintiff, Dianne Nehmad, demands judgment against the Defendants, the Association, Thompson Realty, John Does, and ABC Entities, for compensatory, consequential and incidental damages, punitive damages, interest, costs of suit, attorneys fees, and such other relief as the Court may deem just, proper and equitable. COUNT FIFTEEN (Wrongful Death Anthony Milano) 84. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 85. Letters of Administration CTA were granted by the Surrogate of the County of Atlantic, State of New Jersey to the Plaintiff, James McGowan, entitling him among other things to prosecute a claim on behalf of the heirs-at-law of Mrs. McGowan, against the Defendants. 86. Mrs. McGowan left surviving her as her heirs-at-law her daughter, the Plaintiff, Dianne Nehmad, and her son, James McGowan, along with three (3) other children and their offspring, all of whom were dependent upon Mrs. McGowan and all of whom have sustained pecuniary damages upon the death of Mrs. McGowan. -22-
87. This action has been commenced within two (2) years after the death of Mrs. McGowan. 88. As a direct and proximate result of said attack, Mrs. McGowan suffered bodily injuries that resulted in her death on October 8, 2009 to the pecuniary damage of her and her heirs-at-law. WHEREFORE, the Plaintiffs, James McGowan, as Administrator CTA of the Estate of Catherine F. McGowan, The Estate of Catherine F. McGowan, and the heirs of Catherine F. McGowan, demand judgment against the Defendant, Anthony Milano, for damages, both compensatory and punitive, interest, costs of suit and all other damages allowed by N.J.S.A. 2A31-1 et. seq. COUNT SIXTEEN (Survival Action Anthony Milano) 89. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 90. As a direct and proximate result of such attack, Mrs. McGowan was stabbed repeatedly and violently, suffered severe painful bodily injuries, externally and internally, which injuries necessitated her obtaining medical treatment, caused her conscious pain and suffering, and incapacitated her until her death on October 8, 2009. WHEREFORE, the Plaintiffs, James McGowan, as Administrator CTA of the Estate of Catherine F. McGowan, The Estate of Catherine F. McGowan, and the heirs of Catherine F. McGowan, demand judgment against the Defendant, Anthony Milano, for damages, both compensatory and punitive, interest, costs of suit and all other damages allowed by N.J.S.A. 2A15-1 et. seq. -23-
COUNT SEVENTEEN (Survival Action The Association, Thompson Realty, John Does, and ABC Entities) 91. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 92. On or prior to October 8, 2009, said Defendants, the Association, Thompson Realty, John Does, and ABC Entities, breached their duty by negligently owning, controlling, operating, maintaining, budgeting, managing, hiring, selecting improper individuals and/or contractors, occupying, leasing, training, inspecting, supervising, providing inadequate training in dangerous conditions and situations, providing inadequate and necessary security, failing to safeguard property and property owners, and failing to provide necessary and adequate warnings at the Village and all of its common areas, and creating and/or maintaining or allowing a nuisance and/or dangerous condition to exist. 93. As a direct and proximate result of such attack, Mrs. McGowan was stabbed repeatedly and violently, suffered severe painful bodily injuries externally and internally, which injuries necessitated her obtaining medical treatment, caused her conscious pain and suffering, and incapacitated her until her death on October 8, 2009. WHEREFORE, the Plaintiffs, James McGowan, as Administrator CTA of the Estate of Catherine F. McGowan, The Estate of Catherine F. McGowan and the Heirs of the Estate of Catherine F. McGowan, demand judgment against the Defendants, the Association, Thompson Realty, John Does, and ABC Entities, for damages, both compensatory and punitive, interest, costs of suit and all other damages allowed by N.J.S.A. 2A15-1 et. seq. -24-
COUNT EIGHTEEN (Wrongful Death The Association, Thompson Realty, John Does, and ABC Entities) 94. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 95. On or prior to October 8, 2009, said Defendants, the Association, Thompson Realty, John Does, and ABC Entities, breached their duty by negligently owning, controlling, operating, maintaining, budgeting, managing, hiring, selecting improper individuals and/or contractors, occupying, leasing, training, inspecting, supervising, providing inadequate training in dangerous conditions and situations, providing inadequate and necessary security, failing to safeguard property and property owners, and failing to provide necessary and adequate warnings at the Village and all of its common areas, and creating and/or maintaining or allowing a nuisance and/or dangerous condition to exist. 96. As a direct and proximate result of the negligence and carelessness of the Defendants as aforesaid, a violent attack at the Village which caused personal injury to and the death of the Mrs. McGowan. 97. As a result of such attack, Catherine McGowan suffered bodily injuries which resulted in her death on October 8, 2009 to the pecuniary damage of her and her heirs-at-law. WHEREFORE, the Plaintiffs, James McGowan, as Administrator CTA of the Estate of Catherine F. McGowan, The Estate of Catherine F. McGowan, and the Heirs of the Estate of Catherine F. McGowan, demand judgment against the Defendants, the Association Inc., Thompson Realty, John Does, and ABC Entities, for damages, both -25-
compensatory and punitive, interest, costs of suit and all other damages allowed by N.J.S.A. 2A31-1 et. seq. COUNT NINETEEN (Civil Rights Action Pursuant To 42 U.S.C. 1983 The Linwood Defendants) 98. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 99. The Plaintiffs are citizens of the United States. 100. The Linwood Defendants, at all times relevant herein, acted under the color of state law. 101. The Plaintiffs have commenced an investigation to determine if the Linwood Defendants had actual and/or constructive notice of the harassing, intimidating, threatening, dangerous, and terrorizing actions of the Defendant, Anthony Milano, towards Mrs. McGowan and the other residents of the Village as aforesaid, and as a result knew or should have known that the Defendant, Anthony Milano, was likely to harm the residents of the Village and others lawfully on the property of the Village, including Mrs. McGowan and the Plaintiff, Dianne Nehmad. 102. The Plaintiffs have also commenced an investigation to determine if the Linwood Defendants failed to take the necessary protective, corrective, or other actions to fulfill their duty to protect the residents of the Village, Mrs. McGowan, and the Plaintiff, Dianne Nehmad, from the Defendant, Anthony Milano. 103. In December 2009, the Plaintiffs filed Notices of Tort Claim against, inter alia, the City of Linwood Police Department ( Police Department ) and Baker. -26-
104. Thereafter, on October 20, 2009, the Plaintiffs filed their first Complaint in the within action against the Defendants. As part of the Plaintiffs investigation of the acts or omissions of the Linwood Defendants, the Plaintiffs sought discoverable information from the City of Linwood, the Police Department, and Baker. The Plaintiffs also sought to take the depositions of various officers employed by the Police Department. 105. The potential claims set forth in the Plaintiffs Notices of Tort Claim and the claims set froth by the Plaintiffs in the within actions shall hereinafter be collectively referred to as the Plaintiffs Claims. 106. Upon information and belief, after Baker became aware of the Plaintiffs Notice of Tort Claim filed against he and the Police Department and/or the Plaintiff s Claims, Baker advised the officers and employees at the Police Department that everything will be fine as long as we are on the same page when referring to the upcoming depositions relating to the Plaintiffs Claims. 107. Baker sought to arrange a meeting with all of the officers with knowledge and information relating to the Plaintiffs Claims in order to ensure that the officers testimony would not implicate the Linwood Defendants for the injuries and damages incurred by Mrs. McGowan and the Plaintiffs, regardless of whether such testimony was true and accurate. Baker sought to arrange that meeting despite the fact that standard operating procedure at the Police Department was for officers to arrive at a deposition in response to a subpoena and truthfully testify as to the officer s recollections as to what he did or observed and the officer s recollections. -27-
108. Specifically, Baker advised the officers and employees at the Police Department that being on the same page meant that the officers and employees were to falsely state at their depositions that Baker had advised the officers and employees that if Mrs. McGowan needed to go to her residence at the Village, for any reason, Mrs. McGowan and her family had been instructed to have them call the Police Department and the Police Department would assign personnel to go with them. Baker also falsely claimed that he had sent an email to the officers and employees of the Police Department and advised the officers to recall that fact at their depositions. 109. Baker had not given the instructions set forth in Paragraph 105 to the officers, Mrs. McGowan, or the Mrs. McGowan s family, nor had Baker sent an email to the officers to that effect. 110. In or about January 2011, Baker approached a detective in the Police Department to discuss a deposition relating to the Plaintiffs Claims. Baker advised the detective that he should falsely testify at his deposition that he remembered being told that a family member of Mrs. McGowan was told to call the Police Department if the family needed to go to the house for any reason, and that if that person were to call, the police were to go to the house with them. The detective stated to another officer that Baker s statements regarding the events relating to the Plaintiffs Claims were false. 111. The detective that was approached by Baker recalled that it was not until after the Plaintiffs Notices of Tort Claim were filed against the Police Department and Baker that Baker had claimed for the first time that he had spoken to a family member of Mrs. McGowan advising that if Mrs. McGowan needed to go to the house for -28-
anything, Mrs. McGowan and/or the family should call the police and an officer would provide an escort. 112. In or about January 2011, Officer Douglas F. Carman ( Carman ) was approached by Baker about the depositions relating to the Plaintiffs Claims. While discussing the depositions, Baker advised Carman that he should remember that Baker told everyone that if a person called the Police Department to go to the house to make sure the Police Department provided an escort, and that Carman should make sure that the other officers knew to make such false statements. According to Carman, Baker was requesting him to perjure himself at his deposition given that such events did not occur. 113. At no time during the events of 2009, as set forth in this Complaint, did Baker advise any member of the Plaintiffs family that they should call the police if they needed to go to the Village or that a police escort would be available. 114. At all times relevant herein, Baker sought to pressure and control the officers and employees at the Police Department to alter and otherwise give false testimony relating to the Plaintiffs Claims. 115. Baker s aforesaid statements were knowingly false. Baker s statements and actions were intended to direct, tamper, manipulate, falsify, and control the testimony of the officers and employees subordinate to him at the Police Department and to prevent the Plaintiffs from investigating and prosecuting their legitimate claims against the Linwood Defendants. -29-
116. Baker s aforesaid conduct constitutes a violation of the Rules and Regulations governing the Police Department, as well as the criminal statutes regarding the tampering of witnesses and providing false testimony. 117. Upon information and belief, John Does and officials, employees, and agents of the City of Linwood and Police Department knew or should have known about Baker s aforesaid actions, participated in, assisted with, and aided or abetted Baker s aforesaid actions. 118. The Linwood Defendants aforesaid conduct was deliberate and performed in an effort to discriminate against the Plaintiffs, cause the Plaintiffs financial damages, prevent the Plaintiffs from lawfully investigating and prosecuting their claims against the Linwood Defendants, violated the Plaintiffs rights to equal protection, and otherwise violated the Plaintiffs rights to prosecute their claims arising out of the acts and/or omissions of the Defendants and the Linwood Defendants. 119. The Linwood Defendants aforesaid intentional acts were directed at depriving the Plaintiffs of their rights to investigate and prosecute their claims, and to improperly insulate themselves from civil liability for their acts and/or omissions relating to the Plaintiffs Claims. 120. The Defendants aforesaid acts violated the Plaintiff s rights to equal protection, procedural and substantive due process and the Plaintiff s rights, privileges, and immunities secured by State and Federal law, and the United States Constitution. 121. The Linwood Defendants actions were consistent with a policy and custom to cause the deprivation of the Plaintiff s rights as set forth herein. -30-
122. The Linwood Defendants aforesaid actions against the Plaintiffs shock the conscience. 123. The Linwood Defendants aforesaid conduct constituted a gross abuse of power and invidious discrimination against the Plaintiffs in violation of the Plaintiffs rights to equal protection under the law and the Plaintiffs rights and privileges as guaranteed by the U.S. Constitution and is actionable under 42 U.S.C. 1983. 124. As a direct and proximate result of the Defendants aforesaid acts, the Plaintiffs Claims have been damaged by the Linwood Defendants efforts to suborn perjury, tamper with witnesses, falsify discoverable information, and otherwise deprive the Plaintiffs of their rights to investigate and prosecute their known and unknown claims against the Defendants and the Linwood Defendants. 125. As a direct and proximate result of the Linwood Defendants aforesaid conduct, the Plaintiffs have suffered damages and incurred attorney s fees and costs. WHEREFORE, the Plaintiffs demand that judgment be entered against the Linwood Defendants as follows A. Declaring and adjudging that the Defendants violated the Plaintiffs rights, privileges, and immunities secured by State and Federal law, the United States Constitution, and 42 U.S.C. 1983; B. Compensatory damages; C. Punitive damages; D. Payment of all costs and fees, including attorneys fees; and E. All other appropriate relief the Court deems just and proper. COUNT TWENTY -31-
(New Jersey State Constitution The Linwood Defendants) 126. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 127. The Linwood Defendants aforesaid actions violated the Plaintiffs rights to be free from discrimination, to lawfully prosecute the Plaintiffs Claims, and pursue discoverable information relating to the Plaintiffs Claims. 128. The Linwood Defendants aforesaid conduct violated the Plaintiff s rights and privileges guaranteed under the New Jersey State Constitution. 129. As a direct and proximate result of the Linwood Defendants violation of the Plaintiffs rights under the New Jersey State Constitution, the Plaintiffs have suffered damages and incurred attorney s fees and costs. WHEREFORE, the Plaintiffs demand that judgment be entered against the Linwood Defendants as follows A. Compensatory damages; B. Punitive damages; C. Payment of all costs and fees, including attorneys fees; and D. All other appropriate relief the Court deems just and equitable. COUNT TWENTY-ONE (Violation Of The New Jersey Civil Rights Act, N.J.S.A. 106-1, et seq. The Linwood Defendants) 130. The Plaintiffs repeat and reincorporate herein all prior allegations set forth 131. The Linwood Defendants aforesaid conduct violated New Jersey Civil Rights Act, N.J.S.A. 106-1, et seq. -32-