MARIA P. FORNARO v. MARIO PAYRET, MARC SOLONDZ, JACOB FORD VILLAGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4894-04T14894-04T1

MARIA P. FORNARO,

Plaintiff-Appellant,

v.

MARIO PAYRET, MARC SOLONDZ, JACOB

FORD VILLAGE,

Defendants-Respondents,

and

JUDITH ARMSTRONG and

JEFFREY STANSBURY,

Defendants.

____________________________________________________________

 

Submitted - September 12, 2006 - Decided October 11, 2006

Before Judges Graves and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No.

L-2732-02.

Maria P. Fornaro, appellant pro se.

Reilly, Supple, Wischusen, attorneys for respondents (Angiola DiPopolo, of counsel and on the brief).

PER CURIAM

Plaintiff Maria P. Fornaro appeals the trial court orders

denying her motion to amend her tort complaint and granting the

summary judgment motion of defendants, Mario Payret, Marc Solondz and Jacob Ford Village (JFV). We affirm.

Plaintiff executed a lease for a JFV unit on January 23, 1997. Payret worked as the on-site property manager of the JFV complex and assisted plaintiff in showing her the apartment and providing the rental agreement. Solondz was Payret's supervisor.

Plaintiff, a licensed New Jersey attorney, began representing Payret in his divorce and contested custody action after moving to JFV. During the course of this litigation, plaintiff invited Payret to dinner and to her apartment. Although she denies her relationship with Payret was anything more than professional, plaintiff admits she was disciplined and suspended from the practice of law and at her deposition stated, "Payret testified that he was my boyfriend, so I can thank him for this three year[] suspension."

Plaintiff's complaint, seeking one billion dollars in damages, alleges various torts committed by Payret, including harassment in the form of "constant and unwanted telephone calls" and vulgar sexual statements, trespass to plaintiff's apartment and garage area, and "stalking," all of which she asserts placed her "in fear of her safety as defendant Payret is strongly associated with various drug dealers in the community." As to Solondz, plaintiff maintains he failed to act or otherwise control and supervise Payret after she reported the incidents, averring that "[i]n permitting the defendant Payret to continue to be employed by the defendant [JFV], the defendant Solondz knew [or] should have know[n] that such employment would result in injury to the plaintiff." One count sought compensatory damages of $50,000 for the alleged conversion of her personalty stored in Payret's basement unit.

Counts seven through nine were dismissed. Thereafter, defendants' motion for summary judgment on the remaining six counts was granted. In his decision, the motion judge reviewed each alleged cause of action, making determinations on each count. Plaintiff then filed motions for reconsideration of the order of summary judgment and for leave to amend her complaint to add counts ten and eleven asserting additional causes for invasion of privacy. Both requests were denied. On appeal, plaintiff argues the motion judge's grant of summary judgment was premature because discovery was incomplete, and improper because credibility findings were used to reach his conclusion.

In reviewing a grant of summary judgment, we apply the same standard to resolve the dispute as did the motion judge, see Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge's interpretation of the law. See Balsamides v. Protameen Chem., Inc., 160 N.J. 352, 372 (1999); see also Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995). That is, we review the record in the light most favorable to the non-movant and determine if the record, thus viewed, requires the entry of judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In general, however, we will not disturb the trial judge's exercise of discretion unless it is "so wholly unsupportable as to result in a denial of justice." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996) (quoting Goodyear Tire and Rubber Co. v. Kin Prop., Inc., 276 N.J. Super. 96, 106 (App. Div.), certif. denied, 139 N.J. 290 (1994)).

Relief on a motion to amend a pleading, in the discretion of the court, shall be "freely given in the interest of justice." R. 4:9-1. "That exercise of discretion requires a two-step process: whether the non-moving party will be prejudiced, and whether granting the amendment would nonetheless be futile." Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 501 (2006).

Plaintiff's motion to amend, filed more than two years after she initiated her action, followed the entry of summary judgment and dismissal of all causes against defendants. We cannot say Judge Dumont misapplied his discretion in concluding that there was "no basis to amend at this point [in the litigation] either procedurally or substantively." His decision was bottomed on his detailed knowledge of the litigation, having handled all prior motions, including the motion for summary judgment. No denial of justice occurred. Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968).

Plaintiff also argues that summary judgment was prematurely granted because allowed discovery was not completed, however, she provides no statement as to what essential facts would be gleaned from additional discovery. Our de novo review, employing the same standards as the trial court to determine whether the motion for summary judgment should have been granted or denied, Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005); see also Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989), discloses that further discovery would not change the conclusion reached by the motion judge, Kaczorowska V. Nat'l Envelope Corp., 342 N.J. Super. 580, 591-92 (App. Div. 2001), as the fatal flaw in plaintiff's case was the absence of any prima facie showing that she could prove damages.

We are satisfied the conclusions of Judge Dumont in his oral decision rendered July 27, 2004, show no genuine issue as to any material fact challenged, entitling defendants to a judgment as a matter of law. R. 4:46-2(c); Brill, supra, 142 N.J. at 528-29. We also affirm the order denying reconsideration as Judge Dumont correctly applied R. 4:49-2 in denying plaintiff's motion and in so ruling, did not misapply his discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).

 
Affirmed.

In the caption and throughout the record, the name of this defendant is misspelled. The correct spelling, Solondz, is used in this decision.

Throughout this decision references to defendants identifies only Payret, Solondz and Jacob Ford Village because the claims against defendants, Judith Armstrong and Jeffrey Stansbury had been dismissed in the course of the litigation.

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A-4894-04T1

 

October 11, 2006