MICHAELCANTONE v. BOROUGH OF HARRINGTON PARK

NOT FOR PUBLICATION WITHOUT THE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-1390-15T1


MICHAEL CANTONE,

        Plaintiff-Appellant,

v.

BOROUGH OF HARRINGTON PARK
and HARRINGTON PARK POLICE
DEPARTMENT,

        Defendants-Respondents.

——————————————————————————————

              Argued November 15, 2017 – Decided January 22, 2018

              Before Judges Alvarez, Currier, and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-6032-09.

              Eric V. Kleiner           argued     the    cause    for
              appellant.

              Raymond R. Wiss argued the cause for
              respondents (Wiss & Bouregy, PC, attorneys;
              Raymond R. Wiss, of counsel; Timothy J. Wiss
              and Thomas K. Bouregy, Jr., on the brief).

PER CURIAM
     Plaintiff Michael Cantone appeals from the October 19, 2015

order   denying    his     motion    to       vacate     judgment      pursuant    to

Rule 4:50-1.      After reviewing the contentions in light of the

record and applicable principles of law, we affirm.

     The facts underlying this protracted litigation are set out

in this court's prior decision, Cantone v. Borough of Harrington

Park, No. A-3248-10 (App. Div. Jan. 29, 2013), and need not be

fully repeated here.        Briefly, defendant, Borough of Harrington

Park, employed plaintiff as a police officer.                 In 2009, a hearing

officer in defendant Harrington Park Police Department found that

plaintiff had disobeyed a lawful order, was unfit for duty, and

was "a danger to himself and others."                    Defendant adopted the

recommendation of the hearing officer to terminate plaintiff.

     Following plaintiff's appeal to the Law Division and a trial,

in 2011, plaintiff's termination was upheld.                    We affirmed the

decision,   and    the     Supreme   Court       denied       the   petition      for

certification     and    reconsideration        of     the   denial.    Cantone    v.

Borough of Harrington Park, 
214 N.J. 115 (2013).

     Four years after the entry of judgment by the trial court,

plaintiff filed a motion to vacate the judgment pursuant to Rule




                                          2                                 A-1390-15T1
4:50-1(f).1 The motion papers included certifications of his wife,

mother-in-law, and father-in law; these exhibits were not provided

in any of the prior filings.

       On October 19, 2015, Judge Menelaos W. Toskos                         issued a

comprehensive written decision.                  In his consideration of the

application, the judge noted that plaintiff contended that the

judgment against him was based on "untrue material facts," which

he   claimed    was    supported     by    the    new     certifications       of   his

relatives.     Under that theory, the motion should have been brought

under subsection (a) or (b) of Rule 4:50-1.                   Rule 4:50-2, however,

requires motions addressing those subsections to be filed "not

more   than    one    year   after   the       judgment   .    .   .   was   entered."

Therefore, this motion was untimely under subsections (a) and (b).

       In addressing subsection (f), the judge noted that it must

be brought within a reasonable time, and in order to obtain relief,


1
              On motion, with briefs, and upon such terms
              as are just, the court may relieve a party or
              the party's legal representative from a final
              judgment or order for the following reasons:
              (a) mistake, inadvertence, surprise, or
              excusable neglect; (b) newly discovered
              evidence which would probably alter the
              judgment or order and which by due diligence
              could not have been discovered in time to move
              for a new trial under R. 4:49; . . . or (f)
              any other reason justifying relief from the
              operation of the judgment or order.

              [R. 4:50-1(a), (b), (f).]

                                           3                                   A-1390-15T1
"the   applicant      must    demonstrate       that     the   circumstances        are

exceptional and that enforcement of the order or judgment would

be unjust, oppressive or inequitable."

        Judge Toskos rejected plaintiff's argument that he had "new

information" that warranted the granting of relief.                         The judge

stated:

            The court . . . has not been presented with
            any explanation as to why the affidavits from
            Plaintiff's wife and in-laws could not have
            been provided earlier. That is precisely the
            purpose of the discovery process.        These
            should have been produced in the first
            instance   at   the   trial   level,   or   on
            appeal. . . . The court is not at all
            persuaded by plaintiff's argument that the
            motion is now "ripe" after his retention of
            new counsel. Further, Plaintiff has retained
            at least three other attorneys on this matter,
            none of whom discovered this information in
            the time since the original judgment.

Judge Toskos found there was nothing "truly exceptional" about the

circumstances in this case and no explanation as to why the newly

produced    affidavits       could   not    have      been   obtained      during   the

proceedings    four    years     ago,      as   the    witnesses     were    "readily

available    during    the     initial      hearings,        trial   and    appellate

reviews."     The motion was denied.

       On appeal, plaintiff points to the newly discovered evidence

obtained in his relatives' certifications as support for granting

his motion to vacate under Rule 4:50-1(f).                   He also continues to


                                           4                                  A-1390-15T1
re-litigate his case, reiterating previously rejected arguments

and asserting that he is "the victim of a fraudulent and fabricated

allegation."

      We review the trial court's decision on a motion to vacate

judgment for an abuse of discretion.           Deutsche Bank Nat'l Tr. Co.

v. Russo, 
429 N.J. Super. 91, 98 (App. Div. 2012).                 "'The trial

court's determination under [Rule 4:50-1] warrants substantial

deference,' and the abuse of discretion must be clear to warrant

reversal."    Ibid. (quoting U.S. Bank Nat'l Ass'n v. Guillaume, 
209 N.J. 449, 467 (2012)).          An abuse of discretion occurs when a

"decision is made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis."     Milne v. Goldenberg, 
428 N.J. Super. 184, 197 (App. Div.

2012) (quoting Flagg v. Essex Cty. Prosecutor, 
171 N.J. 561, 571

(2002)).

      We are unable to discern any abuse of discretion in the trial

judge's conclusions.       To the contrary, Judge Toskos considered

plaintiff's arguments and issued a well-reasoned opinion.                     We

affirm substantially for the reasons expressed in his decision.

There was no explanation why certifications of plaintiff's wife

and in-laws could not have been presented at the time of the trial

of   this   matter   or   at   any   earlier   point   in   this    protracted

litigation.     As a result, plaintiff did not meet his burden of

                                       5                               A-1390-15T1
showing "truly exceptional circumstances."   Baumann v. Marinaro,


95 N.J. 380, 395 (1984).

     The remainder of plaintiff's arguments concern the merits of

his case.   They were considered, and rejected, by this court in

our lengthy prior opinion.    The Supreme Court declined review.

Plaintiff may not again reassert the arguments that were the basis

of his prior appeal.

     Affirmed.




                                6                          A-1390-15T1