ELISSA HORAN VS. ROBBINSVILLE PUBLIC SCHOOLS (L-1260-17, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 22, 2021
• Docket: A-5358-18
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5358-18

ELISSA HORAN,

Plaintiff-Appellant,

v.

ROBBINSVILLE PUBLIC SCHOOLS and ROBBINSVILLE BOARD OF EDUCATION,

Defendants-Respondents. __________________________

Submitted January 5, 2021 – Decided March 22, 2021

Before Judges Fisher and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1260-17.

Geist Law, LLC, attorneys for appellant (Jared A. Geist, on the briefs).

Methfessel & Werbel, attorneys for respondents (Eric L. Harrison, of counsel and on the brief; Ashley E. Malandre, on the brief).

PER CURIAM Plaintiff Elissa Horan appeals an order granting defendants' motion for

summary judgment in her New Jersey Law Against Discrimination, N.J.S.A.

10:5-1 to -49, case, arguing summary judgment was precluded because: (1)

"several material witnesses are now deceased,"1 (2) "there are material questions

of fact," and (3) "even if . . . there are not sufficient issues of material fact in

dispute . . . there still remain both legal issues and credibility determinations

requiring a trial." We find insufficient merit in these arguments to warrant

further discussion in a written opinion, R. 2:11-3(e)(1)(E) and affirm

substantially for the reasons set forth in Judge Janetta D. Marbrey's

comprehensive oral decision. We add a few brief comments about plaintiff's

first point.

Plaintiff's argument that a witness's death precludes summary judgment is

contrary to well-established law and, as Judge Marbrey found, misguided. A

witness's death does not by itself create a genuine issue of material fact where

1 Although her argument is premised on the death of "several material witnesses," plaintiff identifies only two witnesses: Steven Mayer, who was the Robbinsville school-district superintendent, and Deborah Dauer, a union representative who, according to plaintiff, attended one meeting with plaintiff and plaintiff's principal and vice principal. Plaintiff characterizes them as "material" witnesses but does not reference either of them in her statement of facts. She does not allege either of them witnessed any incident that lead to a request she undergo a fitness-for-duty examination. A-5358-18 2 none existed or a credibility issue that must be resolved by a trier of fact. Indeed,

an absence of factual issues means that there are no credibility issues to be

resolved.

The death of a witness, even a material witness, does not present an

insurmountable obstacle for parties in a lawsuit. Through the discovery process,

parties may explore evidence related to a deceased witness and may through that

process develop information that raises genuine issues of fact as to that evidence.

See, e.g., D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 116 (App.

Div. 1997) (depositions of surviving parties to a transaction revealed

inconsistencies and suspicious circumstances). Summary judgment would be

inappropriate when a party has been denied that opportunity. See James v.

Bessemer Processing Co., 155 N.J. 279, 311 (1998) (finding summary judgment

inappropriate when discovery is incomplete and critical facts are within

knowledge of the moving party). Judge Marbrey rendered her decision after the

close of discovery. Having had the opportunity to conduct discovery, plaintiff

failed to establish any genuine issues of material fact.

Affirmed.

A-5358-18 3