NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4801-18
LANCE H. STARK,
Plaintiff-Appellant,
v.
JAMES MARAVENTANO, SR., and YEAMON MUSIC, INC.,
Defendants-Respondents. ____________________________
Submitted January 4, 2021 – Decided October 21, 2021
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0028-18.
Lora B. Glick, attorney for appellant.
Simon Gluck and Kane, LLP, attorneys for respondents (Mariana del Rio Kostenwein, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D. Plaintiff Lance H. Stark appeals the May 23, 2019 orders that granted
defendants James Maraventano, Sr. and Yeamon Music, Inc.'s summary
judgment motion, dismissed plaintiff's complaint, and denied plaintiff's cross-
motion to extend discovery. 1 The court found plaintiff's claims were time-
barred under applicable statute of limitations and by equitable defenses. We
affirm the trial court's orders.
I.
A.
Plaintiff is a professional drummer. He alleges that in 2002 after playing
a "gig" in James Maraventano, Sr.'s (defendant's) band known as "Second
Wind," defendant asked plaintiff and another musician, Hal Seltzer 2 (Seltzer),
a bass player, to join Second Wind as "permanent and equal members,
promising them equal pay after expenses." Plaintiff alleges defendant "made
repeated verbal commitments and agreements" with him that he would equally
share profits from the band. This meant plaintiff would be "paid [twenty-five
percent] of all the proceeds from the business after normal and customary
1 The trial court denied as moot defendants' motion for an order quashing plaintiff's March 13, 2019 document request and protective order to bar further discovery. Defendants did not file a cross-appeal of that order. 2 Seltzer is not a party to this litigation.
2 A-4801-18 business expenses." Plaintiff alleges he and Seltzer requested two conditions:
change the band's name to Jimmy and the Parrots 3 (the Band) and allow them
to turn down appearances to permit them to play with more well-known bands
or musicians.
Once they joined the Band, plaintiff alleges he and Seltzer increased the
"quality, visibility and monetary success" of the Band – without additional
compensation – because they thought they were equal members of the Band.
He contends the Band secured higher paying engagements using national
booking agents. Ibid. Plaintiff alleges he produced defendant's "melodies"
into original songs and the Band's CD's using his own resources. In 2007, the
Band secured a record deal with Madacy Entertainment/Laughing Baby, LLC,
that they all signed. Seltzer also formed a publishing company for the Band
called "JiJiHaLa" representing the first names of all four of them.
Plaintiff and Seltzer were advised about engagements to play with the
Band via an email from Marybeth Rotella, the Band's manager, who advised
about job locations and pay. Plaintiff could accept or decline on a
3 "Jimmy and the Parrots" was another name defendant used for the Band since 2001. The Band is a Jimmy Buffett tribute band.
3 A-4801-18 performance-by-performance basis. From time to time, he declined to play
with the Band because of other engagements.
By 2008, plaintiff claims that defendant no longer was transparent about
what the Band was paid for its performances. In a February 1, 2008 email to
defendant, Selzer acknowledged that he and plaintiff were "hired guys" who
"can accept or not accepts gigs as they are offered." Seltzer acknowledged in
his deposition "that [defendant] was not doing what was originally represented,
and . . . we were not getting things split equally." He testified he discussed
with plaintiff that "we stopped being 'partners' a long time ago, and I'm fine
with the situation as it is."
Plaintiff did not recall the February 2008 email when he was deposed.
However, when he was asked whether he felt he was being cheated in 2008,
plaintiff answered "I felt often times I was cheated, even though I was quiet.
But it is like a marriage, you don't bring up everything. You feel you are being
cheated on, but it is the long run you are in for."
Counsel for defendants asked:
Q. You played a significant number of gigs with the band every year . . . in 2007, 2008, 2009, you are saying even though you may have felt cheated, you never said anything?
4 A-4801-18 A. At times, I did say stuff, absolutely, but when, I don't recall.
Q. And what happened when you complained?
A. I don't know the specifics, unless you ask me to go gather this information, I can put it together maybe from my old emails. At the moment, there were a number of occasions where it would be brought up and you would get brushed aside with a certain answer, everything was pseudo-secret."
In another portion of his deposition, plaintiff testified he thought he was
being short-changed by defendant.
Q. And when did you first start feeling that you were being short-changed?
A. I can't recall the specific date. It was an incremental matter of little things, a little bigger, a chance for equal pay. . . . I started finding little things, blatant lies to my face, so it started there."
However, plaintiff could not recall when this started, when he asked for an
accounting or whether he asked to have profits divided up, although he
claimed he made that suggestion. He acknowledged he received a 1099 form
for his taxes.
Plaintiff alleges Seltzer left in 2015, negotiating a "buy-out" agreement
with the Band. On December 29, 2016, defendant sent plaintiff an email
informing plaintiff that he no longer wanted him to play with the Band.
5 A-4801-18 Plaintiff asked for an accounting of the band's revenue and for a "buyout . . .
based on a percentage of the gross for a year" but he did not receive a buy-out.
Plaintiff was "certain" defendant was violating the agreement by 2017.
B.
On January 25, 2018, plaintiff filed a ten-count civil complaint in the
Law Division against defendant and a corporation named Yeamon Music, Inc.
(Yeamon). 4 The claims included breach of contract, legal fraud, fraud in the
inducement, equitable fraud, fraudulent concealment, negligent
misrepresentation, breach of the implied covenant of good faith and fair
dealing, unjust enrichment, conversion, and misappropriation of intellectual
property. Plaintiff requested an accounting of the revenue received by the
Band from 2002 through present, an order to produce corporate books and
records, a preliminary and permanent injunction prohibiting defendant from
using the Band's name, compensatory damages, and attorney's fees.
Defendants filed a motion to dismiss for failure to state a claim. This
was denied without prejudice on March 29, 2018, but defendants successfully
opposed plaintiff's request for injunctive relief. Defendants filed an answer on
4 Yeamon is a corporation that was formed in 2007 by defendant. Defendant, defendant's wife, and defendant's son are the sole shareholders. Although named as a defendant, none of the allegations pleaded by plaintiff relate directly to this corporation.
6 A-4801-18 April 30, 2018. The parties conducted discovery, which included depositions
of plaintiff, defendant and Seltzer. Plaintiff served defendants with a notice to
produce documents including a request for accounting records from 2002.
In April 2019, defendants filed a motion for summary judgment to
dismiss the complaint. This was supported by a statement of material facts,
which was certified by defendants' attorney. It referenced various exhibits that
were attached to a memorandum of law, including portions of deposition
transcripts and exhibits marked during the depositions. Defendants also filed a
motion to quash the document request served by plaintiff and for a protective
order that further discovery not be conducted.
Plaintiff filed a counterstatement of material facts, opposing defendants'
summary judgment motion and a cross-motion to extend discovery, supported
by a certification from plaintiff's counsel and attaching various
communications between the parties.
The trial court conducted oral argument. Plaintiff filed a letter
responding to questions by the court raised during oral argument and attaching
five additional exhibits dated from 2002 to 2010.
On May 23, 2019, the trial court delivered its opinion on the record,
granting defendants' motion for summary judgment, denying as moot
7 A-4801-18 defendants' motion to quash discovery, and denying plaintiff's cross-motion to
extend discovery.
C.
In its oral opinion, the trial court granted defendants' motion for
summary judgment finding uncontroverted the facts relating to his claims. The
six-year statute of limitations applied to Counts One through Ten because the
court found plaintiff was making claims about compensation going back to
2001 or 2002. The court found "the claims were mature no later than 2008, all
of them, virtually all of them."
Starting with breach of contract, the court found the six-year statute of
limitations barred the claim. "[P]laintiff was aware of his potential claims
against . . . defendants dating back to the mid-2000's, certainly no later than
2008," based on emails and communications, and specifically an email from
February 1, 2008. Many of the communications plaintiff had with defendant
raised issues "about whether or not [plaintiff] was being fairly and adequately
compensated." Because plaintiff was aware of his claim by 2008 but did not
file a complaint until 2018, the statute of limitations ran out in 2014, barring
any claims before then.
8 A-4801-18 The court found the discovery rule did not apply. The court also found
no evidence of an agreement to share profits. There was no evidence of co-
ownership. The facts all showed that plaintiff "was nothing more than an
independent contractor."
The court found all the fraud-based causes of action were barred by the
six-year statute of limitations because, based on documentary evidence,
plaintiff "was aware of the basis for a fraud claim no later than 2008."
Plaintiff expressed concern about whether he was being treated fairly in 2008.
The court found this was the "trigger date" for the fraud claims.
Count Ten raised a claim about misappropriation of intellectual property.
The court observed this "should have been brought years and years ago, . . .
certainly no later than 2008." The court found plaintiff admitted to many of
the facts in this claim, including that he was a "hired player." The court
concluded "the claim is stale."
The court found the equitable defenses of waiver, equitable estoppel and
laches applied to bar any equity-based claims because plaintiff "waited far too
long to bring these claims." The trial court found that defendants would be
prejudiced if it allowed the equity-based claims to continue.
9 A-4801-18 The court did not believe plaintiff could prove compensatory damages.
It held that defendants' motion to quash was moot because of the summary
judgment order. Plaintiff's cross-motion for an extension of the discovery end
date was denied.
On appeal, plaintiff raises the following issues:
POINT I
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AS SAME WAS NOT PROPERLY SUPPORTED BY AFFIDAVITS OR CERTIFICATIONS OF ANY PARTY OR WITNESS HAVING PERSONAL KNOWLEDGE OF THE UNDERLYING FACTS, BUT INSTEAD CONTAINED ONLY IMPROPERLY SUBMITTED AND UNAUTHENTICATED DOCUMENTS APPENDED TO THEIR LEGAL BRIEF.
POINT II
IN IMPROPERLY ADDRESSING THE MERITS OF THE DEFENDANTS' SUMMARY JUDGMENT MOTION, THE TRIAL COURT ERRED IN MISAPPLYING RELEVANT PRINCIPLES OF CONTRACT LAW TO THE UNAUTHENTICATED AND INADMISSIBLE EVIDENCE PRESENTED BY THE DEFENDANTS, THUS WARRANTING REVERSAL.
(i) Defendants' assertion that the plaintiff claimed he was a partner with Maraventano in [Jimmy and the Parrots] is
10 A-4801-18 a fictitious construct designed to confuse and mislead the Court.
(ii) Plaintiff has shown that a valid and enforceable agreement for permanent employment was formed between the parties in 2002.
(iii) The trial court erred in relying on a vague, ambiguous and unauthenticated hearsay document to hold that all of the plaintiff’s claims were barred under the applicable statute of limitations.
(iv) The trial court erred in holding that the doctrines of laches, equitable estoppel and waiver were applicable to the plaintiff's claims.
(v) The trial court erred in holding that the plaintiff’s claim of theft of intellectual property had no factual foundation.
POINT III
THE TRIAL COURT'S ERRONEOUS GRANT OF SUMMARY JUDGMENT SHOULD BE REVERSED AS A MATTER OF FAIRNESS AND DUE PROCESS AS PLAINTIFF'S PRIOR ATTORNEY'S INCOMPETENCE DEPRIVED HIM OF AN OPPORTUNITY TO BE HEARD BELOW AND HE SOULD [sic] NOT BE PENALIZED FOR THAT ATTORNEY'S MISTAKES.
POINT IV
THE TRIAL COURT ERRED IN FAILING TO DISMISS THE PLAINTIFF'S MOTION TO QUASH
11 A-4801-18 AND FOR OTHER RELIEF AS SAME WAS UNSUPPORTED BY ANY EVIDENCE, IN VIOLATION OF RULE 1:6-6.
POINT V
THE TRIAL COURT ERRED IN DENYING AS MOOT THE PLAINTIFF'S CROSS-MOTION TO EXTEND AND COMPEL DISOVERY [sic] AS THE DEFENDANTS’ SUMMARY JUDGMENT MOTION WAS PREMATURE.
II.
We review an order granting summary judgment de novo, applying the
same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).
Summary judgment must be granted if "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law."
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224
N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). A genuine issue of material fact,
precluding summary judgment, exists if "the competent evidential materials
presented, when viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational factfinder to resolve the alleged disputed
12 A-4801-18 issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995).
"Whether a particular cause of action is barred by a statute of limitations
is determined by a judge rather than a jury." Est. of Hainthaler v. Zurich Com.
Ins., 387 N.J. Super. 318, 325 (App. Div. 2006). To the extent defendants'
summary judgment motion raised a legal question about application of the
statute of limitations, we also review that issue de novo. D'Agostino v.
Maldonado, 216 N.J. 168, 182 (2013) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
"Statutes of limitations are essentially equitable in nature, promoting the
timely and efficient litigation of claims." Montells v. Haynes, 133 N.J. 282,
292 (1993) (citing Ochs v. Fed. Ins. Co., 90 N.J. 108 (1982)). As our Supreme
Court has stated:
The purposes of statutes of limitations, oft-repeated by this Court, are two-fold: (1) to stimulate litigants to pursue a right of action within a reasonable time so that the opposing party may have a fair opportunity to defend, thus preventing the litigation of stale claims, and (2) to penalize dilatoriness and serve as a measure of repose.
[Gantes v. Kason Corp., 145 N.J. 478, 486 (1996) (quoting Rivera v. Prudential Prop. & Cas. Ins. Co., 104 N.J. 32, 39 (1986)).]
13 A-4801-18 We agree plaintiff's claims were barred by applicable statutes of
limitation. Relevant here, N.J.S.A. 2A:14-1 provides, "[e]very action at law
. . . for recovery upon a contractual claim or liability, express or implied, not
under seal . . . shall be commenced within [six] years next after the cause of
action shall have accrued."
Plaintiff 's complaint alleges causes of action for breach of contract,
fraud, misappropriation of intellectual property, unjust enrichment, conversion
and breach of the implied covenant of good faith and fair dealing. Each is
subject to N.J.S.A. 2A:14-1's six-year statute of limitations. See Crest-Foam
Corp. v. Aetna Ins. Co., 320 N.J. Super. 509, 517 (App. Div. 1999) (quoting
N.J.S.A. 2A:14-1) (providing that "In New Jersey, causes of action based on
contractual claims must be brought within six years 'after the cause of any such
action shall have accrued.'"); D'Angelo v. Miller Yacht Sales, 261 N.J. Super.
683, 688 (App. Div. 1993) (providing that common law fraud claims "may be
brought within six years of accrual."); Dynasty Bldg. Corp. v. Ackerman, 376
N.J. Super. 280, 287 (App. Div. 2005) (applying a six-year statute of limitation
to a claim for conversion although the statute had not expired on the facts of
that case); Baer v. Chase, 392 F.3d 609, 622 (3d Cir. 2004) (providing that a
six-year statute of limitations governs quasi-contract claims); Flemming v.
14 A-4801-18 Ronson Corp., 107 N.J. Super. 311, 315-16 (Law Div. 1969) (misappropriation
of an idea sounds in quasi-contract) and Goldsmith v. Camden Ctny., 408 N.J.
Super. 376, 382 (App. Div. 2009) ("Unjust enrichment is not an independent
theory of liability, but is the basis for a claim of quasi-contractual liability.")
(quoting Nat'l Amusements, Inc. v. N.J. Tpk. Auth., 216 N.J. Super. 468, 478
(Law Div. 1992)). Other claims are contract related. See Noye v. Hoffmann-
LaRoche, Inc., 238 N.J. Super. 430, 432 (App. Div. 1990) (providing the
implied covenant of good faith and fair dealing is implied in every contract).
Tort actions have a two-year statute of limitations. Under N.J.S.A.
2A:14-2(a) "every action at law for an injury to the person caused by the
wrongful act, neglect or default of any person within this State shall be
commenced within two years next after the cause of any such action shall have
accrued[.]" The fraudulent concealment claim was subject to the shorter two-
year statute of limitations. See Rosenblit v. Zimmerman, 166 N.J. 391, 406
(2001) (describing the "tort" of fraudulent concealment in the context of
litigation). The negligent misrepresentation claim may be subject to this
shorter statute of limitations. See Carroll v. Cellco P'ship, 313 N.J. Super.
488, 502 (App. Div. 1998) (providing the elements of negligent
15 A-4801-18 misrepresentation include negligence made in connection with a statement,
reliance and injury).
Viewing the evidence in a light most favorable to plaintiff, in this case
plaintiff acknowledged that by 2008, he knew he was not being compensated
as he thought he should be under the 2002 agreement to share net profits
equally. Plaintiff testified to this in his deposition. The email from Seltzer
corroborated plaintiff's claim that defendant was not being transparent about
the finances as early as 2008. However, plaintiff's complaint, alleging a
breach of the 2002 agreement, was not filed until January 2018, which was
more than six years after he became aware defendant was not following the
agreement. The trial court did not err in concluding the claims subject to a
two-year or a six-year statute of limitations were barred given these undisputed
facts.
The trial court also found that equitable defenses applied to bar
plaintiff's claims. These included laches, equitable estoppel and waiver. For
laches to apply, the "key factors to be considered . . . are the length of the
delay, the reasons for the delay, and the 'changing conditions of either or both
parties during the delay.'" Knorr v. Smeal, 178 N.J. 169, 181 (2003) (quoting
Lavin v. Bd. of Educ., 90 N.J. 145, 152 (1982)). A "[w]aiver under New
16 A-4801-18 Jersey law 'involves the intentional relinquishment of a known right and thus it
must be shown that the party charged with the waiver knew of his or her legal
rights and deliberately intended to relinquish them.'" Spaeth v. Srinivasan,
403 N.J. Super. 508, 514 (App. Div. 2008) (quoting Shebar v. Sanyo Bus. Sys.
Corp., 111 N.J. 276, 291 (1988)). Equitable estoppel means
the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse[.]
[Highway Trailer Co. v. Donna Motor Lines, Inc., 46 N.J. 442, 449 (1966).]
We agree that plaintiff's delay in bringing these claims implicated these
equitable defenses. In this case, the facts showed that plaintiff was aware at
least from 2008 that he was not being paid in accord with the agreement that
he says was formed in 2002. He delayed in filing suit for the next ten years.
Whether characterized as laches, waiver or estoppel, plaintiff's delay was such
that it would be unfair to have such stale claims proceed. This is not in accord
with the purpose of statutes of limitations nor consistent with the equitable
principles that undergird the equitable defenses applied by the trial court.
17 A-4801-18 Plaintiff argues the trial court erred in granting summary judgment
because defendants' motion was not supported by competent evidence.
Plaintiff argues defense counsel attached documents to his memorandum of
law without any supporting certifications. He contends the trial court should
have dismissed the motion based on a lack of evidence.
Rule 4:46-2(a) sets forth the requirements for a summary judgment
motion. "The motion for summary judgment shall be served with a brief and a
separate statement of material facts with or without supporting affidavits." R.
4:46-2(a). Rule 4:46-2(c) provides:
The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.
[R. 4:46-2(c) (emphasis added).]
For motions based on facts not appearing of record or not judicially
noticeable, Rule 1:6-6 provides:
the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein.
18 A-4801-18 [R. 1:6-6.]
Thus, if the party moving for summary judgment relies on materials other than
the pleadings, depositions, answers to interrogatories, or admissions on file,
those materials must be supported by an affidavit or appropriate certification.
See R. 1:4-4(b).
Defendants submitted a statement of material facts in support of their
motion for summary judgment that was certified by counsel. The statement
cited to the complaint, depositions of plaintiff, defendant and Seltzer, the
exhibits marked during the depositions, and the certificate of incorporation for
defendant Yeamon, Inc. The referenced documents were attached to the
memorandum of law, except Yeamon's certificate of incorporation, which was
annexed to a certification of defense counsel. Defendant therefore did not
supply materials outside the record. It was proper for the trial court to base its
decision on this statement of material facts, the pleadings, depositions and
materials referenced in the deposition and certification.
Plaintiff alleges the trial court erred by not considering defendant's
continuous pattern of wrongful conduct for more than ten years. We disagree.
The gravamen of plaintiff's complaint is that there was an agreement in 2002
to equally share proceeds once expenses were deducted, and that was breached
19 A-4801-18 as early as 2008. That defendant may have been consistent in violating this
"agreement" until 2016 does not mean plaintiff's claim for breach of contract
accrued each year. Plaintiff cites no authority to extend the continuing
violation theory of tort law to these contract-based claims.
Plaintiff argues that defendant's fraudulent concealment created an
equitable tolling of the statute of limitations which allowed him to file in 2018.
However, plaintiff's deposition testimony made clear he was aware as early as
2008 that he was not being paid as he thought was appropriate under the
alleged agreement. Plaintiff did not allege he was unaware; he alleged he did
not say anything about what he knew.
Plaintiff argues that "a valid and enforceable contract for permanent
employment was formed in 2002" when defendant and he verbally agreed to
share equally in the Band's net compensation. However, his contract argument
before the trial court was that there was a valid and enforceable agreement
made in 2002, not that he had permanent employment.
"It is a well-settled principle that our appellate courts will decline to
consider questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available 'unless the questions so raised
on appeal go to the jurisdiction of the trial court or concern matters of great
20 A-4801-18 public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)
(quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App.
Div. 1959)).
We decline to address this issue raised for the first time on appeal. It
also is not necessary to address it because the claims are barred by the statutes
of limitation.
Plaintiff argues the summary judgment order should be reversed as a
matter of fairness and due process because the incompetence of his prior
attorney deprived him of an opportunity to be heard. We disagree. The
appropriate recourse for a civil litigant who is disappointed with their counsel's
performance is "in an action for professional malpractice or a complaint with
the appropriate attorney disciplinary authority." Advanced Fluid Sys., Inc. v.
Huber, 381 F. Supp. 3d 362, 382 (M.D. Pa. 2019).
Plaintiff argues the trial court erred by not dismissing plaintiff's motion
to quash because the motion was not supported by competent evidence.
Plaintiff also argues the trial court erred by denying as moot his cross-motion
to extend and compel discovery, and because discovery was not complete,
summary judgment was premature. We incorporate our prior discussion,
adding only that the parties had ample time for discovery.
21 A-4801-18 In plaintiff's reply brief, he alleges defendants included documents in
their appendix that were not presented to the trial court. These include a June
20, 2017 pro se complaint filed by plaintiff in the special civil part, the August
21, 2017 order and decision that dismissed the pro se complaint without
prejudice, defendants' March 8, 2018 motion to dismiss the January 25, 2018
complaint, the March 29, 2018 order and decision that denied defendants'
motion to dismiss, defendants' April 30, 2018 answer, and defendants'
Statement of Material Facts which he alleges was altered for purposes of the
appeal.
We note the motions, orders and decisions were all filed under the same
docket number (L-28-18) as was the answer. The case was before the same
trial judge. There was no reason for the trial judge to exclude consideration of
the materials in the file or for the material to be excluded here. However, we
have not relied on the statement of material facts in defendants' appendix that
references "admissions," which plaintiff asserts was submitted for the first
time on appeal. We considered the version of the statement that was submitted
in support of the summary judgment motion.
Plaintiff also alleges defendants never offered Rotella's affidavit in
support of the summary judgment motion. It was part of plaintiff's cross-
22 A-4801-18 motion to extend discovery, which was also before the trial judge when he
heard the summary judgment motion. There was no reason for the trial court
to exclude consideration of this affidavit.
After carefully reviewing the record and the applicable legal principles,
we conclude that plaintiff's further arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
23 A-4801-18