DERRICK TALIAFERRO v. CITY OF EAST ORANGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3800-05T53800-05T5

DERRICK TALIAFERRO,

Plaintiff-Appellant,

v.

CITY OF EAST ORANGE,

Defendant-Respondent.

_____________________________________

 

Argued November 9, 2006 - Decided November 28, 2006

Before Judges Parker and C.S. Fisher.

On appeal from a final judgment of the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-527-03.

Gregory R. Preston argued the cause for appellant (Preston Wilkins & Martin, attorneys; Mr. Preston, on the brief).

Dennis G. Murphy argued the cause for respondent (Schwartz Simon Edelstein Celso & Kessler, attorneys; Stefani C. Schwartz, of counsel; Mr. Schwartz, Peter J. Vazquez, Jr., and Mark H. Aronowitz, on the brief).

PER CURIAM

Plaintiff filed a complaint in this action alleging that he was injured on January 26, 2001 as a result of falling through an open manhole while crossing Fourth Avenue in East Orange. The adequacy of plaintiff's claim was governed by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and, in examining the factual record with the provisions of this Act in mind, the trial judge determined that there was insufficient evidence to demonstrate that East Orange had actual or constructive notice, as required by N.J.S.A. 59:4-3, of the uncovered manhole, and entered summary judgment dismissing the complaint. In this appeal, plaintiff argues that the trial judge erred in granting summary judgment because, in plaintiff's view, the judge inappropriately refused to consider the information contained in the statement of a witness who was not identified by plaintiff in discovery. We remand for further proceedings.

East Orange moved for summary judgment, correctly arguing that it could not be held liable for the condition of its property in the absence of a showing that it had actual or constructive knowledge of the property's allegedly dangerous condition. See, e.g., Norris v. Bor. of Leonia, 160 N.J. 427, 448 (1999); Grzanka v. Heredia, 301 N.J. Super. 563, 574 (App. Div.), certif. denied, 154 N.J. 607 (1997). East Orange relied upon the deposition testimony of the Executive Director of the East Orange Water Commission that a record search revealed nothing that would suggest East Orange knew or had ever been made aware of the absent manhole cover or that complaints had ever been made regarding the location in question.

In response, plaintiff submitted a sworn statement from Edwin Sanchez, which indicated that on approximately five different occasions within the year preceding January 26, 2001, he observed "that the manhole cover in question was not covering the manhole, but was nearby it." He also indicated in his statement that approximately three or four months before plaintiff's accident he "saw a worker from the City of East Orange, wearing an orange shirt, and driving a yellow/orange truck place the manhole cover over the manhole," thus suggesting that this particular manhole was a chronic problem of which East Orange was well aware. East Orange argued that Sanchez was never identified in plaintiff's answers to interrogatories or elsewhere in the discovery that the parties exchanged and that, because the discovery end date had already expired, the trial judge was obligated to disregard Sanchez's statement.

If Sanchez's statement was rightfully disregarded, we agree that East Orange was entitled to summary judgment. To defeat the motion, plaintiff was obligated to create a genuine factual dispute about whether East Orange had actual or constructive knowledge of the open manhole. Nothing in the record other than the Sanchez statement would support that contention. Accordingly, the propriety of summary judgment turned solely on whether the trial judge correctly disregarded the Sanchez statement.

In asserting that the trial judge mistakenly granted summary judgment, plaintiff argues in part that the judge weighed the credibility of the Sanchez statement. It may be true that the judge expressed suspicion about the statement's sudden appearance shortly before the return date of the summary judgment motion. More than four years had elapsed since the date of the accident, more than two years had elapsed since the filing of the complaint, over eight months had elapsed since the close of discovery, and the matter had already been arbitrated. However, despite the expression of his skepticism, the judge's oral decision makes clear that he disregarded the Sanchez statement because discovery had closed and plaintiff had not moved to extend discovery.

The trial judge was certainly correct in his analysis of the procedural history of the case and the significance of plaintiff's failure to move for an extension of discovery. The record reflects that the discovery period ended on January 5, 2004. Following arbitration on March 24, 2005 and a subsequent demand for a trial de novo, East Orange moved for summary judgment. In light of the fact that discovery had previously closed, the trial judge decided not to consider the Sanchez statement and granted summary judgment in favor of East Orange. The judge's decision represents a technically correct approach to the circumstances.

However, we observe that during oral argument of the motion, plaintiff's counsel asserted that plaintiff's sudden location of Sanchez shortly before the filing of East Orange's motion in August 2005 was "serendipitous," suggesting that he could not through reasonable efforts have located Sanchez anytime sooner. Rather than seek further information about these circumstances, the judge observed that no motion for an extension of discovery had been filed and that plaintiff's contentions regarding his inability to sooner locate Sanchez were irrelevant.

We remand, concluding that, in light of his argument regarding the late location of Sanchez, the trial judge should have provided plaintiff with the opportunity to move for an extension of discovery on that basis. Certainly, the judge's observation was correct that, in the absence of an extension of discovery, East Orange was entitled to summary judgment. It is also true that the mere statements of counsel during oral argument on the motion for summary judgment could not be equated with a motion for an extension of discovery, nor was the judge obligated to credit counsel's unsworn contentions as to whether a valid reason existed for an extension of discovery. But, in the interests of justice, we conclude that the judge should have, prior to ruling on the summary judgment motion, provided plaintiff with the opportunity to move for an extension of discovery.

The issues relating to the grant or denial of an extension of discovery must first be considered by the trial judge, who should initially determine whether plaintiff's motion presents "exceptional circumstances" as required by R. 4:24-1(c). We, thus, remand the matter in order to permit plaintiff the opportunity to move for an extension of discovery. Should plaintiff fail to so move within thirty days of our decision, then the summary judgment will remain in effect; should the motion for an extension be timely filed and denied, then the summary judgment will remain in effect and plaintiff may thereafter appeal that determination, if he so chooses. If the motion for an extension is granted, then the trial judge shall vacate the order of summary judgment.

Remanded. We do not retain jurisdiction.

 

East Orange alternatively argues that the Sanchez statement was not in proper form and was rightfully disregarded. The statement does not indicate that Sanchez gave an oath to tell the truth in executing the document, is not notarized and, thus, is not an affidavit. In addition, to constitute a valid certification in lieu of oath, such a pleading is required to contain the following language immediately preceding the person's signature: "I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are wilfully false, I am subject to punishment." R. 1:4-4(b). Sanchez's statement does not contain this precise language, but instead states: "I am giving statement voluntarily and of my own free will, without force or compulsion and in no expectation whatsoever of monetary compensation. I am giving this statement truthfully, to the best of my recollection." We question whether the Sanchez statement meets the requirements of R. 1:4-4. In permitting certifications in lieu of oath, the language contained in the rule was carefully chosen in order to impress upon persons making such statements -- through the reference to potential punishment -- the gravity of their acts. State v. Angelo's Motor Sales, 125 N.J. Super. 200, 207 (App. Div. 1973), aff'd sub nom., State v. Parmigiani, 65 N.J. 154 (1974); Pressler, Current N.J. Court Rules, comment on R. 1:4-4 (2006). Sanchez states that the statement was truthful to the best of his recollection, that it was freely and voluntarily given, and that he was not compensated for giving the statement, but does not indicate that the statement was given in contemplation of the possibility of punishment. Although we doubt the statement's sufficiency in this regard, we need not now determine whether the statement should have been disregarded for these reasons. In light of our remand, plaintiff will have the opportunity to provide the information which Sanchez seeks to convey in the form contemplated by R. 1:4-4.

(continued)

(continued)

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A-3800-05T5

November 28, 2006