Maureen Widofsky v. New Brunswick Parking Authority

• Court: New Jersey Superior Court Appellate Division
• Decided: March 11, 2024
• Docket: A-3837-21
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3837-21

MAUREEN WIDOFSKY and STUART WIDOFSKY, her husband,

Plaintiffs-Appellants/ Cross-Respondents,

v.

NEW BRUNSWICK PARKING AUTHORITY,

Defendant-Respondent/ Cross-Appellant. __________________________

Argued January 23, 2024 – Decided March 11, 2024

Before Judges Haas and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4607-20.

Larry S. Loigman argued the cause for appellants/cross- respondents.

Nicole M. Grzeskowiak argued the cause for respondent/cross-appellant (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Nicole M. Grzeskowiak, of counsel and on the briefs; Christy Leigh Cushing, on the briefs).

PER CURIAM

Plaintiffs Maureen Widofsky and Stuart Widofsky appeal a July 22, 2022

order granting summary judgment to defendant New Brunswick Parking

Authority. Defendant cross-appeals a March 4, 2022 order granting plaintiffs'

motion to bar the report and testimony of its expert, Reginald Piggee, R.A., and

the related April 14, 2022 order denying reconsideration. Because the court

improperly granted summary judgment prior to ruling on the parties' outstanding

motions to bar various evidence, we vacate the court's summary judgment order

and remand for further proceedings consistent with this opinion. We discern no

abuse of discretion, however, with respect to the court's order striking

defendant's expert based on the record before us, and accordingly affirm the

March 4, 2022 order and the April 14, 2022 order denying reconsideration.

We begin by reviewing the facts in the summary judgment record, viewing

them in the light most favorable to plaintiffs as the non-moving party. Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff1 alleges that

on July 18, 2019, she walked into an "unmarked, clear glass wall" in the Plum

1 Because Stuart Widofsky asserts only a per quod claim, our reference to plaintiff in the singular refers to Maureen Widofsky. A-3837-21 2 Street Parking Garage ("Parking Garage") owned and operated by defendant,

which she avers caused her to "fall backward and hit her head on the garage

floor." Plaintiff claimed defendant was negligent in designing, constructing and

maintaining the Parking Garage. In its answer, defendant denied liability and

asserted various defenses, including immunity under the New Jersey Tort

Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3.

Discovery closed on June 20, 2021. In October 2021, defendant moved

to reopen and extend discovery based on the parties' ongoing exchange of paper

discovery and the difficulty of obtaining archived records related to the Parking

Garage's design and construction in light of the COVID-19 pandemic. The court

denied defendant's motion and a subsequent motion to reconsider.

Despite the court's order, defendant nevertheless continued to amend its

interrogatory responses and produce additional supporting documents without

seeking leave of court. On February 7, 2022, defendant's counsel sent plaintiffs'

counsel a letter enclosing the Piggee report, styled as an affidavit, as an

amendment to its interrogatory responses.

Plaintiffs moved to bar Piggee's report, arguing the amendment "was not

accompanied by a certification of due diligence, or any explanation as to its

untimeliness" as required under Rule 4:17-7. On February 24, 2022, defendant

A-3837-21 3 again amended its interrogatory responses and produced the architectural design

plans for the Parking Garage. In the accompanying cover letter, its counsel also

certified, without further explanation, "that the information contained in this

amendment and the previously-served affidavit were not reasonably available or

discoverable by the exercise of due diligence prior to twenty (20) days of the

discovery end date."

The court granted plaintiffs' motion and barred "the report and testimony

of Reginald Piggee, R.A.," noting Rule 4:17-7 "requires the granting of this

motion" because "in the absence of . . . [the required] certification [of due

diligence], the late amendment shall be disregarded by the court." Defendant

sought reconsideration, which the court denied because defendant had failed to

explain "why this report was not reasonably available by the exercise of due

diligence twenty days prior to the discovery end date." We denied defendant's

motion for leave to appeal, noting "[t]he interests of justice d[id] not require

interlocutory review of this discovery issue."

Defendant thereafter moved for summary judgment, arguing plaintiffs

failed to prove a prima facie negligence case and it was otherwise entitled to

immunity under the TCA, including plan and design immunity, N.J.S.A. 59:4-

6, and discretionary immunity, N.J.S.A. 59:2-3(a). In support of its motion,

A-3837-21 4 defendant provided, among other evidence, its meeting minutes with respect to

the planning and construction of the Parking Garage. The parties dispute

whether the meeting minutes were previously produced in discovery.

While the summary judgment motion was pending, defendant moved to

bar the report of plaintiffs' liability expert, Robert S. Bertman, P.E., CSP,

arguing he provided an impermissible net opinion. It also amended its

interrogatory responses again on July 18, 2022 to name additional witnesses and

include additional architectural plans and documents identified only by Bates

numbers.2 Plaintiffs moved to bar as untimely the documents and witnesses

identified in the July 18, 2022 amendment.

On July 22, 2022, the court granted defendant's summary judgment motion

without the benefit of oral argument and dismissed plaintiffs' claims with

prejudice. In its attached statement of reasons, the court summarily stated,

"[n]otwithstanding the alleged discovery violations," defendant was "entitled to

immunity as a matter of law pursuant to N.J.S.A. 59:4-6." That statutory

provision provides immunity under the TCA from liability for injuries "caused

by the plan or design of public property" where the plan or design was "approved

2 Except for the additional architectural plans, the record before us does not contain any documents bearing the identified Bates numbers. A-3837-21 5 in advance" by "the governing body of a public entity." The court explained

"the plan and design of the wall in question '[was] approved in advance of the

construction . . . by the governing authority'—i.e., [defendant]." Subsequently,

in separate orders dated July 22, 2022 and August 5, 2022, the court "dismissed

as moot" plaintiffs' motion to bar the witnesses and documents identified in the

July 18, 2022 amendment, and defendant's motion to strike plaintiffs' expert, in

light of its summary judgment ruling. This appeal and cross-appeal followed.

We first address the different standards of review guiding our analysis

with respect to the orders on appeal. "We review decisions granting summary

judgment de novo," C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289, 305

(2023), applying the same standard as the trial court, Townsend v. Pierre, 221

N.J. 36, 59 (2015). Like the motion judge, we "consider whether 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 issue in favor of the non-moving party." C.V., 255 N.J. at 305

(quoting Samolyk v. Berthe, 251 N.J. 73, 78 (2022)). "Summary judgment is

appropriate if 'there is no genuine issue as to any material fact' and the moving

party is entitled to judgment 'as a matter of law.'" Ibid. (quoting R. 4:46-2(c)).

A-3837-21 6 We "defer to a trial judge's discovery rulings absent an abuse of discretion

or a judge's misunderstanding or misapplication of the law." Est. of Lasiw by

Lasiw v. Pereira, 475 N.J. Super. 378, 392 (App. Div. 2023) (quoting Cap.

Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017)).

We also apply the abuse of discretion standard when reviewing an order denying

reconsideration. Gold Tree Spa, Inc. v. PD Nail Corp., 475 N.J. Super. 240, 245

(App. Div. 2023). A trial court abuses its discretion "when a decision is 'made

without a rational explanation, inexplicably departed from established policies,

or rested on an impermissible basis.'" Est. of Kotsovska by Kotsovska v.

Liebman, 221 N.J. 568, 588 (2015) (quoting Flagg v. Essex Cnty. Prosecutor,

171 N.J. 561, 571 (2002)).

Before us, plaintiffs argue the court erred by granting summary judgment

based on "documents which were not provided in discovery," including the

architectural plans and meeting minutes. Defendant responds the evidence it

presented was produced to plaintiffs, and contends the meeting minutes are

matters of public record which the court may fairly consider.

"When 'a trial court is "confronted with an evidence determination

precedent to ruling on a summary judgment motion," it "squarely must address

the evidence decision first."'" Schwartz v. Menas, 251 N.J. 556, 569 (2022)

A-3837-21 7 (quoting Townsend, 221 N.J. at 53). "It is only after the trial court has made the

findings required to either admit or exclude the proffered evidence and has made

a ruling thereon that it may proceed to determine the then-pending summary

judgment." Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385

(2010). "Inadmissible evidence may not be used to affect the outcome of a

summary judgment motion." Randall v. State, 277 N.J. Super. 192, 198 (App.

Div. 1994).

We are convinced the court erred by resolving defendant's summary

judgment motion prior to addressing both parties' outstanding motions. See

Schwartz, 251 N.J. at 569. To determine "whether the competent evidential

materials presented, when viewed in the light most favorable to [plaintiff s],

[we]re sufficient to permit a rational factfinder to resolve the alleged disputed

issue in favor of [plaintiffs]," Brill, 142 N.J. at 540 (emphasis supplied), the

court was required to first determine which evidential materials it could

appropriately consider. Based on the record before us, we cannot discern

whether the court's decision improperly relied upon potentially inadmissible

evidence.

In its cross-appeal, defendant argues the court abused its discretion in

granting plaintiffs' motion to bar its expert because the court ignored its

A-3837-21 8 certificate of due diligence and the delayed disclosure was "caused by legitimate

problems in obtaining dated discovery in the midst of the COVID-19 pandemic."

Plaintiffs request we affirm, contending defendant did not "offer an adequate

explanation for the late submission."

Under Rule 4:17-7, amendments to interrogatory responses "shall be

served not later than [twenty] days prior to the end of the discovery period" and

"may be allowed thereafter only if the party seeking to amend certifies therein

that the information requiring the amendment was not reasonably available or

discoverable by the exercise of due diligence prior to the discovery end date."

Absent a certification of due diligence, "the late amendment shall be disregarded

by the court and adverse parties." R. 4:17-7. A valid certification of due

diligence must provide a "precise explanation that details the cause of delay and

what actions were taken during the elapsed time." Bender v. Adelson, 187 N.J.

411, 429 (2006).

We are satisfied the court did not abuse its discretion by excluding

defendant's expert report and testimony based on the record before it as its order

was not "made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis." Est. of Kotsovska,

221 N.J. at 588 (quoting Flagg, 171 N.J. at 571). Not only did defendant produce

A-3837-21 9 the Piggee report approximately eight months after the close of discovery, and

two months after the court declined to reconsider its order denying defendant's

motion to reopen discovery, but the record reflects defendant did not include the

required certification of due diligence contemporaneously with its production.

Further, defendant's subsequent letter was not a certification, nor did it provide

a "precise explanation that details the cause of delay and what actions were taken

during the elapsed time" as required by Bender, 187 N.J. at 429. Because the

court properly barred defendant's expert after considering the record before it at

the time, we also conclude the court did not err in declining to reconsider its

order. See R. 4:42-2(b) (providing reconsideration of an interlocutory order is

within "the sound discretion of the court in the interest of justice").

For the reasons detailed, we vacate the court's grant of summary judgment

to defendant, affirm the order barring defendant's expert and the associated order

denying reconsideration, and remand for further proceedings. On remand, the

court should first address defendant's motion to bar plaintiffs' expert and

plaintiffs' motion to bar the witnesses and documents identified in defendant's

July 18, 2022 amendment. We express no opinion as to the appropriate relief

and leave it to the court's discretion in that regard. It may decide to grant or

deny the applications or grant some other relief, including reopening discovery

A-3837-21 10 to permit the parties to address the disputed discovery. In the event the court

reopens discovery, the considerations and bases underlying its order barring

defendant's expert under Rule 4:17-7 will clearly have changed. The parties

may seek, and the court should feel free to reconsider, its order striking

defendant's expert in light of those possible changed circumstances and the

interest of justice. See R. 4:42-2(b). Again, we leave the resolution of the

discovery motions to the court's considerable discretion.

Further, following the resolution of these outstanding discovery matters,

defendant may renew its summary judgment motion as appropriate. The court

should conduct oral argument when requested on any motion which is

appealable as of right. See R. 1:6-2(d) (providing request for oral argument on

motions not involving pretrial discovery or scheduling "shall be granted as of

right"). We offer no opinion on the merits of defendant's summary judgment

motion or whether defendant should ultimately prevail on the issues, and nothing

in this opinion should be construed as an expression of such. We also note the

court did not address the alternative grounds for summary judgment, including

but not limited to discretionary immunity under N.J.S.A. 59:2-3(a), raised by

defendant. Nothing in this opinion should be interpreted as a limitation on the

A-3837-21 11 parties' abilities to address those arguments, or any other supported by the facts

and law, in the context of any renewed motion.

Affirmed in part, vacated in part, and remanded.

A-3837-21 12