Justo Villantes v. Stephanie McPhillips

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2704-24

JUSTO VILLANTES,

Plaintiff-Appellant,

v.

STEPHANIE MCPHILLIPS, and COOK MEDICAL, LLC,

Defendants-Respondents,

and

NEW JERSEY PROPERTY LIABILITY INSURANCE GUARANTY ASSOCIATION and SENTRY INSURANCE,

Defendants. __________________________

Submitted April 27, 2026 – Decided May 13, 2026

Before Judges Sabatino and Bergman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0452-23. Ginarte Gonzalez & Winograd, LLP, attorneys for appellant (Thomas MacInnis, on the briefs).

Gfeller Laurie LLP, attorneys for respondents (Chimdi G. Tuffs and Madison E. Calkins, of counsel and on the brief).

Plaintiff Justo Villantes appeals from the denial of his reconsideration

motion from an order granting summary judgment in favor of defendants

Stephanie McPhillips 1 and Cook Medical, LLC, ("Cook Medical"). Plaintiff

also appeals from an order entered during the discovery phase of this matter

denying his motion to compel discovery. Having considered the arguments in

light of the record and applicable legal principles, we affirm.

I.

This action arises from a 2021 motor vehicle accident in Hoboken.

Plaintiff, while operating an electric bicycle, collided with defendant's vehicle

while she was executing a right hand turn from the right lane. Defendant was

driving in her capacity as an employee of Cook Medical, which owned the

vehicle.

1 We refer to Stephanie McPhillips as defendant in this opinion as only vicarious liability was alleged against defendant Cook Medical, LLC, which owned the vehicle. A-2704-24 2 Plaintiff instituted a complaint against defendant in February 2023,

alleging negligence. Following joinder, discovery was contentious, with

defendants producing responses to discovery including Close Caption

Television ("CCTV") footage of the accident. In February 2024, defendants

moved to extend discovery, to compel more specific answers to interrogatories

and for leave to serve additional supplemental interrogatories. Plaintiff cross

moved to compel discovery alleging certain materials were wrongfully withheld

by defendants, claiming confidentiality. On March 15, 2024 the court granted

defendants' motion and extended the discovery end date ("DED") one hundred

and twenty (120) days to July 21, 2024. The order also compelled plaintiff to

provide more specific discovery responses and further granted defendants leave

to serve additional supplemental interrogatories. The court denied plaintiff's

cross motion to compel discovery.

Approximately two weeks later, plaintiff moved for reconsideration of the

order denying his cross motion to compel discovery. On April 26, 2024, the

court denied plaintiff's motion for reconsideration without oral argument. On

July 2, 2024, defendants moved to extend the DED for an additional one hundred

twenty (120) days, claiming plaintiff had not provided all of the written

discovery requested, the parties depositions had not occurred, expert reports had

A-2704-24 3 not been prepared or exchanged, and expert depositions were necessary. The

court denied the motion. On October 15, 2024, we granted defendant's motion

for leave to appeal and subsequently reversed the trial court's order and extended

the DED by 120 days. Villantes v. McPhillips, No. A-0456-24 (App. Div. Apr.

15, 2025) (slip op. at 17-18). While defendant's motion was pending before us,

discovery concluded on July 21, 2024.

Between the time we granted leave to appeal and the release of our opinion

on April 15, 2025, defendants had moved for summary judgment on liability,

arguing defendant was not negligent in the operation of her vehicle and plaintiff

could not prove negligence as a matter of law. Despite the pendency of the

appeal before us when defendants moved for summary judgment, plaintiff failed

to raise the pending appeal to the trial court nor requested to stay the case.

Thereafter, in January 2025, the trial court granted summary judgment to

defendants, dismissing all claims against them. Plaintiff's motion for

reconsideration was later denied.

On appeal, plaintiff raises the following points for our consideration: (1)

the trial court erred as genuine issues of material fact existed precluding

summary judgment; (2) the trial court misconstrued N.J.S.A. 39:4-14.2 as

applied to the facts; (3) the trial court improperly relied on certain facts based

A-2704-24 4 on personal knowledge, which were not subject to judicial notice; (4) the trial

court erred by limiting its review to the video footage and defendant's affidavit;

(5) the trial court's denial of plaintiff's cross-motion to compel discovery was an

abuse of discretion; and (6) the trial court's failure to vacate its summary

judgment order after we granted defendants' interlocutory appeal and reversed

its prior discovery order was an abuse of discretion.

II.

At the outset, we point out that defendant's notice of appeal only identified

the order denying his motion for reconsideration. If the notice of appeal

"designates only the order entered on a motion for reconsideration, it is only that

proceeding and not the order that generated the reconsideration motion that may

be reviewed.” Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1 on R.

2:5-1(f)(1) (2024). However, under the circumstances, we shall address the

merits of the underlying motion since defendant did not raise this procedural

point and both parties addressed the underlying summary judgment order in their

merits briefs. See W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J.

Super. 455, 458 (App. Div. 2008).

Our review of a trial court's summary judgment decision is de novo.

DeSimone v. Springpoint Senior Living, Inc., 256 N.J. 172, 180 (2024).

A-2704-24 5 "Summary judgment should be granted . . . 'against a party who fails to make a

showing sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial.'"

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)).

"An issue of material fact is 'genuine only if, considering the burden of

persuasion at trial, the evidence submitted by the parties on the motion, together

with all legitimate inferences therefrom favoring the non-moving party, would

require submission of the issue to the trier of fact.'" Grande v. Saint Clare's

Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38

(2014)); R. 4:46-2(c).

A plaintiff must establish four elements to prevail on a claim of

negligence: (1) a duty of care, (2) a breach of that duty, (3) proximate cause,

and (4) actual damages. Townsend v. Pierre, 221 N.J. 36, 51 (2015); Davis v.

Brickman Landscaping Ltd., 219 N.J. 395, 406 (2014). A plaintiff's failure to

prove all four elements results in judgment for defendant as a matter of law .

Ibid.

As to the discovery rulings implicated here, those rulings are "entitled to

substantial deference," and we review for an abuse of discretion. DiFiore v.

A-2704-24 6 Pezic, 254 N.J. 212, 228 (2023) (quoting State v. Stein, 225 N.J. 582, 593

(2016)). We "generally defer to a trial court's disposition of discovery matters

unless the court has abused its discretion, or its determination is based on a

mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J.

Super. 68, 80, (App. Div. 2005) (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524,

559 (1997)).

Plaintiff first contends that the record exhibited there were genuine issues

of material fact concerning defendant's liability that precluded summary

judgment. Plaintiff asserts the trial court erred by relying on the video evidence

and affidavit of defendant to support its determination that plaintiff was

operating his bicycle in the shoulder lane, outside the area intended for vehicular

travel. The trial court relied on N.J.S.A. 39:4-14.2 to support this finding, which

requires bicyclists to ride "as near to the right side of the roadway as

practicable," determining the statute does not permit operation of a bicycle in

the shoulder that is not designated as a bicycle lane.

As found by the Supreme Court in Polzo v. County of Essex and cited by

the trial court:

A bicycle rider on a roadway is vested with all the "rights" and "duties applicable to the driver of a vehicle" under Title 39, chapter four of our Motor Vehicle Code. N.J.S.A. 39:4-14.1. Under the Motor

A-2704-24 7 Vehicle Code, "[e]very person operating a bicycle upon a roadway [is required to] ride as near to the right side of the roadway as practicable." N.J.S.A. 39:4- 14.2. Bicyclists do not have special privileges on a roadway's shoulder. Indeed, a bicycle rider is directed to ride on the furthest right-hand side of the roadway, not on the roadway's shoulder. The Motor Vehicle Code does not designate the roadway's shoulder as a bicycle lane.

[209 N.J. 51, 71 (2012).]

The CCTV video footage in the summary judgment record clearly shows

plaintiff riding in the shoulder, wearing headphones, and striking the rear

passenger side fender of defendant's vehicle as she executed a legal right turn.

Plaintiff contends summary judgment was inappropriate as defendant had a duty

to make observations for vehicles that are "in or may come into the motorist's

path of travel." The trial court found that plaintiff was not in defendant's line of

sight, and the evidence did not exhibit any genuine issue existed to substantiate

defendant breached her duty to make reasonable observations under the existing

factual circumstances.

Based on our de novo review of the record, we concur with the trial court

that the operation of a bicycle by plaintiff in the shoulder portion of the roadway

was in violation of the above referenced section of the Motor Vehicle Code, and

no issue of material fact existed as to whether defendant breached any duty of

A-2704-24 8 care prior to making a legal right hand turn. We are not persuaded by plaintiff's

contention that a driver executing a right hand turn from the right lane has a duty

to make observations for possible vehicles behind it in the right shoulder. We

conclude this contention lacks merit and fails to create any genuine issue of

material fact under the factual circumstances herein.

Concerning the grant of summary judgment to defendant's employer Cook

Medical, LLC, we recognize "[a]n employer can be found [vicariously] liable

for the negligence of an employee causing injuries to third parties, if, at the time

of the occurrence, the employee was acting within the scope of his or her

employment." Carter v. Reynolds, 175 N.J. 402, 408-09 (2003). Because we

have concluded the trial court was correct in finding defendant was not

negligent, it follows that her employer, co-defendant Cook Medical, cannot be

held vicariously liable.

We now turn to plaintiff's assertion that the trial court committed error

when it "improperly relied on personal knowledge" of the accident location and

facts not subject to judicial notice. We conclude this argument lacks sufficient

merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

We add only that the record reflects the court's findings were properly based on

the video evidence and affidavit of defendant in the summary judgment record,

A-2704-24 9 not extraneous personal knowledge of the location of the accident. The trial

court clearly did not utilize its own personal knowledge of the area in making

its substantive findings.

We further conclude plaintiff's argument that the trial court erred by

limiting its consideration to the video and affidavit lacks merit. Initially, we

conclude the affidavit of defendant is clearly admissible under Rule 4:46-2(c)

and Rule 1:6-6. Plaintiff did not dispute the reliability or accuracy of the CCTV

footage and therefore, the video evidence from the municipal CCTV was

properly considered. Also, the record clearly shows plaintiff had an opportunity

to produce evidence during discovery to rebut the video evidence but failed to

do so.

We next address plaintiff's contention of procedural error arguing the trial

court abused its discretion in denying his cross-motion to compel discovery and

through its failure to reopen discovery in response to our remand order. The

record exhibits that plaintiff served supplemental requests for production of

documents during the discovery phase. In response, defendants produced a

privilege log and proposed confidentiality order in support of their proposed

redactions consisting of personal identifiers, dates of birth and home addresses.

The record exhibits that, although plaintiff's counsel objected to the

A-2704-24 10 confidentiality order, he did not provide a basis supporting his position that (1)

the requested confidentiality order and proposed redactions were probative or

material to the trial court's summary judgment analysis, or (2) how the redacted

information would have created genuine issues of material fact supporting

preclusion of summary judgment to defendants. Because plaintiff failed to

provide this analysis or the reasons this process was prejudicial to its opposition

to the summary judgment motion, we conclude the trial court did not abuse its

discretion in finding the information sought by plaintiff in its supplemental

document request was not sufficiently material to support its contention of trial

court error in denying his cross-motion.

We now turn to plaintiff's contention that the trial court erred by its failure

to vacate the summary judgment order based on our prior remand. We are

unpersuaded. Our remand determination extended discovery 120 days and

instructed the trial court to set specific dates for: (1) plaintiff to produce any

outstanding discovery; (2) depositions of fact witnesses; (3) production of expert

reports; and (4) depositions of experts, if necessary. The remand granted

defendants, not plaintiff, the right to further discovery. Defendants never

exercised the DED extension granted on remand because the trial court had

previously granted summary judgment to them on liability in the interim.

A-2704-24 11 Plaintiff's May 29, 2025 letter to the trial court requesting a case

management conference was six weeks after our remand determination and

approximately four months after the entry of the summary judgment order in

defendants favor. Plaintiff has failed to provide any reasons for his failure to

raise this issue at the time defendants moved for summary judgment, how the

trial court's failure to recognize the remand was prejudicial to him or how the

DED extension granted by the remand would have provided sufficient evidence

to preclude the grant of summary judgment to defendant. Without this

information, this contention lacks merit.

Finally, we address the trial court's denial of plaintiff's motion for

reconsideration and conclude because we have determined the trial court did not

err in its underlying order granting summary judgment to defendants, plaintiff's

contention that the trial court erred in denying reconsideration fails.

To the extent we have not addressed any of plaintiff's remaining

arguments, we conclude those arguments are without sufficient merit to warrant

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

Affirmed.

A-2704-24 12