J.R. v. BOROUGH OF RUTHERFORD

NOT FOR PUBLICATION WITHOUT THE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-2931-16T3

J.R.,

        Plaintiff-Appellant,

v.

BOROUGH OF RUTHERFORD,
RUTHERFORD MAYOR JOSEPH
DESALVO, RUTHERFORD COUNCIL
MEMBER KIM BIRDSALL,
RUTHERFORD COUNCIL MEMBER
MICHAEL SARTORI, RUTHERFORD
COUNCIL MEMBER JOHN
PARNOFIELLO, RUTHERFORD
COUNCIL MEMBER DAVID PORTER,
RUTHERFORD COUNCIL MEMBER JACK
BOYLE, RUTHERFORD COUNCIL MEMBER
GEORGE FECANIN, ACTING RUTHERFORD
POLICE CHIEF HAL CISER, (Defendants
named in their official capacities),

     Defendants-Respondents.
______________________________________

              Argued telephonically May 17, 2018 – Decided May 30, 2018

              Before Judges Reisner and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-019846-14.

              Catherine     M. Elston argued the cause for
              appellant     (C. Elston & Associates, LLC,
          attorneys; Catherine M. Elston, of counsel and
          on the briefs; Cathlene Y. Banker, on the
          brief).

          Dominic P. DiYanni argued the cause for
          respondents (Eric M. Bernstein & Associates,
          LLC, attorneys; Eric M. Bernstein, of counsel
          and on the brief; Steven Siegler, on the
          brief).

PER CURIAM

     In this discrimination and civil rights dispute, plaintiff

J.R. appeals from a January 20, 2017 order granting summary

judgment in favor of defendants and a March 3, 2017 order denying

reconsideration.   In light of the confusion surrounding the return

date of the summary judgment motion, we reverse the order denying

reconsideration, vacate the order granting summary judgment, and

remand for the trial court to decide the summary judgment motion

anew.

                                 I

     Plaintiff, a military veteran, passed a Civil Service exam

for the position of police officer.   The Civil Service Commission

placed him on a certification list given to defendant Borough of

Rutherford (the Borough).     The Borough informed plaintiff it

selected him for one of the open police officer positions, subject

to passing a medical and psychological examination.        Plaintiff

alleges he "passed the psychological examination and was deemed

qualified for the position," but the Borough denied him the

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position due to his post-traumatic stress.              The Borough contends

it removed plaintiff from the hiring list because he failed the

psychological examination.

     Plaintiff filed a complaint against the Borough and its mayor,

council    members,    and   police    chief   alleging   civil    rights    and

discrimination violations.        Discovery began in February 2015 with

an initial end date in May 2016; however, the court extended

discovery multiple times.         In August 2016, defendants filed a

motion for summary judgment arguing plaintiff failed to exhaust

administrative remedies, defendants are entitled to immunity, and

plaintiff cannot prove the pretext required for discrimination.

The trial court adjourned that motion multiple times because

discovery was ongoing.

     The clerk's office apparently scheduled the summary judgment

motion for January 20, 2017; however, neither attorney received

notice of the scheduling.       Plaintiff had not yet filed opposition

because discovery remained incomplete.               Nevertheless, the trial

court     granted   defendants'       motion   for    summary     judgment    as

"unopposed," and also dismissed plaintiff's outstanding discovery

motion as moot.       The record does not include any written or oral

opinion from the court.       Plaintiff's counsel learned of the order

granting summary judgment when she called the court on January 27,

2017 to withdraw a motion to compel.

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     Plaintiff then filed a motion for reconsideration, which the

court denied, reasoning plaintiff failed to provide any evidence

the court failed to consider.       Plaintiff appeals from the January

20, 2017 order granting summary judgment and the March 3, 2017

order denying reconsideration.

                                    II

     A decision whether to deny a motion for reconsideration is

addressed to the trial judge's discretion.       Fusco v. Bd. of Educ.

of Newark, 
349 N.J. Super. 455, 462 (App. Div. 2002). Trial courts

should grant motions for reconsideration "only under very narrow

circumstances."     Ibid.     Reconsideration should only be granted

when "either 1) the [c]ourt has expressed its decision based upon

a palpably incorrect or irrational basis, or 2) it is obvious that

the [c]ourt either did not consider, or failed to appreciate the

significance of probative, competent evidence."      Cummings v. Bahr,


295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v.

D'Atria, 
242 N.J. Super. 392, 401 (Ch. Div. 1990)).

     When   a     trial     court   denies   a   party's   motion    for

reconsideration, a reviewing court shall overturn the denial only

in the event the court abused its discretion.       Marinelli v. Mitts

& Merrill, 
303 N.J. Super. 61, 77 (App. Div. 1997). In determining

whether such an abuse has taken place, a reviewing court should

be mindful that a party is not to utilize reconsideration just

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because of "dissatisfaction with a decision of the [c]ourt."

Capital Fin. Co. of Del. Valley v. Asterbadi, 
398 N.J. Super. 299,

310 (App. Div. 2008) (quoting D'Atria, 
242 N.J. Super. at 401).

In this case, the trial court misapplied discretion in denying

reconsideration, where the failure to file opposition was due to

understandable confusion about the scheduled return date.

     Further, in granting defendants' summary judgment motion, the

trial court issued no statement of factual findings or legal

conclusions as required by Rule 4:46-2(c) and Rule 1:7-4(a).            In

deciding a summary judgment motion, a "trial judge is obliged to

set forth factual findings and correlate them to legal conclusions.

Those findings and conclusions must then be measured against the

standards set forth in Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995)."   Great Atl. & Pac. Tea Co. v. Checchio, 
335 N.J. Super. 495, 498 (App. Div. 2000).

     Rule   4:46-2(b)   provides   that   all   sufficiently   supported

material facts will be deemed admitted for purposes of the motion

unless "specifically disputed" by the party opposing the motion.

However, pursuant to Rule 1:7-4(a), the judge must still correlate

those facts to legal conclusions. See Allstate Ins. Co. v. Fisher,


408 N.J. Super. 289, 301 (App. Div. 2009) (citing Pressler, Current

N.J. Court Rules, cmt. 1 on R. 1:7-4 (2009)) ("The trial judge may

satisfy the court rules by relying on the facts or reasons advanced

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by a party; however, the court is obligated to make the fact of

such reliance 'explicit.'").    The court rules do not provide an

exception from that obligation where the motion is unopposed.      R.

1:7-4(a); R. 4:46-2(c).

     In granting summary judgment, the trial court did not express

any basis for its decision, therefore, on reconsideration we cannot

determine if it was palpably incorrect or irrational. Furthermore,

we do not know what evidence the court considered, therefore we

cannot determine if the court failed to consider any evidence.

Because we have no basis to review either the summary judgment or

reconsideration decisions, we reverse the trial court's denial of

reconsideration, vacate the court's grant of summary judgment, and

remand for the court to consider the summary judgment motion anew.

     On remand, the trial court shall allow plaintiff to submit

opposition to defendants' summary judgment motion regarding the

administrative exhaustion and immunity issues, as they do not

require further discovery.      If plaintiff's complaint survives

these motions, then the court shall enter an order providing for

the completion of discovery and dates for filing any additional

dispositive motions, and trial.

     Reversed and remanded.    We do not retain jurisdiction.




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