PASQUALE FALCETTI, JR., VS. WATERFRONT COMMISSION OF NEW YORK HARBOR (L-4916-14, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5589-18
PASQUALE FALCETTI, JR.,
Plaintiff-Appellant,
v.
WATERFRONT COMMISSION
OF NEW YORK HARBOR,
Defendant-Respondent,
and
PAUL BABCHIK,
Defendant.
___________________________
Argued April 21, 2021 – Decided August 23, 2021
Before Judges Ostrer, Accurso, and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-4916-14.
George T. Daggett argued the cause for appellant.
Jennifer R. O'Connor argued the cause for respondent
(Saiber, LLC, attorneys; Jennifer R. O'Connor, on the
brief).
PER CURIAM
Plaintiff Pasquale Falcetti, Jr., appeals from the trial court's May 23, 2019
order granting summary judgment to defendant Waterfront Commission of New
York Harbor (the Commission) and dismissing plaintiff's claims for: (1) specific
performance, requesting the court order the Commission to register plaintiff as
approved to work on the waterfront in New York Harbor (the waterfront); (2)
tortious interference with economic advantage; (3) violation of plaintiff's
constitutional rights; (4) failure to act; and (5) breach of duty. Plaintiff also
appeals from a July 12, 2019 order denying his motion for reconsideration.
Unpersuaded by plaintiff's arguments, we affirm.
I.
"We review de novo the trial court's grant of summary judgment, applying
the same standard as the trial court." Abboud v. Nat'l Union Fire Ins. Co., 450
N.J. Super. 400, 406 (App. Div. 2017). This standard mandates the grant of
summary judgment "if the pleadings, depositions, answers to interrogatories[,]
and admissions on file, together with the affidavits, if any, show that there is no
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2
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-2(c).
Rule 4:46-2 requires that a motion for summary judgment be supported by
a statement of material facts which "cit[es] to the portion of the motion record
establishing [each] fact or demonstrating that [each fact] is uncontroverted." R.
4:46-2(a). "[A] party opposing a motion for summary judgment [must] 'file a
responding statement either admitting or disputing each of the facts in the
movant's statement.'" Claypotch v. Heller, Inc., 360 N.J. Super. 472, 488 (App.
Div. 2003) (quoting R. 4:46-2(b)). "[A]ll material facts in the movant's
statement which are sufficiently supported will be deemed admitted for purposes
of the motion only, unless specifically disputed by citation conforming to the
requirements of paragraph (a) demonstrating the existence of a genuine issue as
to the fact." R. 4:46-2(b). In our review of a summary judgment record, we
limit our determination of the undisputed facts to those properly presented in
accordance with Rule 4:46-2. Kenney v. Meadowview Nursing & Convalescent
Ctr., 308 N.J. Super. 565, 573 (App. Div. 1998).
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We glean the following undisputed facts based on our review of the
parties' respective Rule 4:46-2 statements.1 The Commission was created in
1953 by compact between the states of New Jersey and New York "as an agency
of both states, with the authority to license or register workers, and, for good
cause, to refuse licenses or registrations, and to regulate labor and hiring
practices on the waterfront."2 In re Application of Waterfront Comm'n, 32 N.J.
323, 331-32 (1960); see also L. 1953, c. 202, c. 203; Waterfront Commission
Act (the Act), N.J.S.A. 32:23-1 to -228.3 "[T]he primary purpose of this bistate
legislation was the elimination of corruption on the waterfront . . . ." Waterfront
Comm'n v. Mercedes-Benz of N. Am., Inc., 99 N.J. 402, 409 (1985).
1
In his responses to the Commission's statement of material facts, plaintiff does
not provide a single citation to the record. See R. 4:46-2(a) to (b). As a result,
we deem admitted each sufficiently supported fact proffered in the
Commission's Rule 4:46-2 statement. See ibid.2
The parties also present applicable law in their respective Rule 4:46-2
statements, and we likewise reference relevant law within our summary of the
undisputed facts.
3
The Act was effectively repealed on January 16, 2018, by L. 2017, c. 324,
which: repealed N.J.S.A. 32:23-1 to -225; continued in effect only N.J.S.A.
32:23-226 to -228; and added new provisions, N.J.S.A. 32:23-229 to -230 and
N.J.S.A. 53:2-8 to -36, that, in pertinent part, transferred the investigative
functions of the Commission to the New Jersey State Police. In our discussion
of the issues presented on appeal, we apply, and cite to, provisions of the Act in
effect prior to January 16, 2018, because the Commission's actions plaintiff
challenges in his complaint occurred prior to that date.
A-5589-18
4
Plaintiff is a member of the International Longshoreman's Association
(ILA).4 Longshoremen must be registered by the Commission to work on the
waterfront. The Commission may deny registration to an applicant "found by
the [C]ommission on the basis of the facts and evidence before it, to constitute
a danger to the public peace or safety." N.J.S.A. 32:23-29(c). The Commission
also may deny registration based upon an applicant's "[a]ssociation with a
person who has been identified by a federal, State[,] or local law enforcement
agency as a member or associate of an organized crime group," or "convicted of
a racketeering activity" if registration "would be inimical to the policies of [the
A]ct." N.J.S.A. 32:23-92(6) to (7).
4
The Commission asserts in its Rule 4:46-2 statement that "[t]he ILA is a
collective bargaining representative of longshoremen and other waterfront
workers employed in the Port." The Act's definition of "[l]ongshoreman"
includes, in pertinent part, "a natural person, other than a hiring agent, who is
employed for work at a pier or other waterfront terminal" "either by a carrier of
freight by water or by a stevedore physically to perform labor or services
incidental to the movement of waterborne freight on vessels berthed at piers, on
piers[,] or at other waterfront terminals, including, but not limited to, . . . general
maintenance men." Mercedes-Benz, 99 N.J. at 407 (quoting N.J.S.A. 32:23-
85(6)(a)). "Generally, the Act defines 'stevedore' as a contractor engaged by a
third party to move waterborne freight, or to perform labor and services
incidental to the movement of freight, on ships berthed at piers, on the piers
themselves, or at other waterfront terminals." Id. at 410 n.7 (first citing N.J.S.A.
32:23-6; and then citing N.J.S.A. 32:23-85(1)).
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The parties agree the Commission carried out its operations through
various divisions, including the Law Division, which investigated license and
registration applicants to determine if they satisfied the Act's standards and
requirements. The Commission's Police Division investigated criminal activity
on the waterfront, conducted background checks of license and registration
applicants, and maintained the Commission's investigative files. The
Intelligence Division collected and analyzed data concerning organized crime
and racketeering activities on the waterfront.
In April 2012, plaintiff applied for registration to work on the waterfront.
At the time, plaintiff worked for Apexel, LLC, a subsidiary of Maher Terminals,
LLC (collectively Apexel). Prior to 2012, Apexel employees at the facility
where plaintiff worked were not within the Commission's jurisdiction, but the
employees "moved into" the Commission's jurisdiction following relocation of
the facility in 2012. Apexel sponsored plaintiff's application for registration.
See N.J.S.A. 32:23-114 ("The [C]ommission shall accept applications for
inclusion in the longshoremen's register: (a) upon the joint recommendation in
writing of stevedores and other employers of longshoremen [on] the
[waterfront], acting through their representative for the purposes of collective
bargaining with a labor organization representing such longshoremen [;] . . . or
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(b) upon the petition in writing of a stevedore or other employer of
longshoremen [on] the [waterfront] . . . .").
In his application, plaintiff stated he had "knowingly associated with a[]
person known or reputed to be a member or associate of an organized crime
group," and he indicated his "father . . . was arrested in 2001 or 2002, was away
for [five] and a half years[,] and [is] now back, off parole[,] and working. "5
Plaintiff also answered in the application that he had "been arrested for, charged
with, indicted for, or convicted of the commission of or the attempt or
conspiracy to commit any crime or offense," and stated "he had been charged
with 'leaving the scene of [an] accident.'" Plaintiff also reported he had "been
5
The Commission also reports in its statement of material facts, see R. 4:46-
2(a), that "[p]laintiff's father, Pasquale Falcetti, Sr., has been identified by
numerous law enforcement agencies as a capo in the Genovese organized crime
family." The Commission asserts, "In 2003, Falcetti, Sr.[,] was charged in a
civil [Racketeer Influenced and Corrupt Organizations (RICO)] complaint for
extortion conspiracy and racketeering activities on the waterfront," the final
result of which was his "convict[ions for] defrauding the pension and welfare
benefit fund for [waterfront] employees," and for "conspiracy to extort money
from owners, officers, employees and agents of the businesses operating [on]
the [waterfront] and from other ILA . . . union positions." The Commission
states that following his convictions, Falcetti, Sr., "was permanently enjoined
from any commercial activity [on] the [waterfront]." Finally, the Commission
claims that "[i]n 2014, [Falcetti, Sr.,] was again convicted for extortion
conspiracy and sentenced to [thirty] months imprisonment." Plaintiff does not
deny these facts in its response or counterstatement of material facts, and we
therefore deem them admitted for purposes of the Commission's summary
judgment motion. See R. 4:46-2 (a) to (b).
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named . . . or referred to in an[] indictment or other accusatory instrument
(including as an unindicted co-conspirator) or been named in or the subject of a
search warrant or court ordered electronic surveillance," and indicated "he had
been 'asked about on a case of Harold Daggett about how [plaintiff] got the job
of a [l]ongshoreman.'"6
"After receipt of [p]laintiff's application, the . . . Commission commenced
an investigation to determine whether [p]laintiff satisfied the statutory
requirements to be registered as a maintenance worker." The investigation was
"undertaken by a team . . . of senior and assistant counsel[], police detectives[,]
and intelligence analysts."7 "[T]he . . . Commission conducted two separate
6
The Commission asserts in its Rule 4:46-2 statement that "Harold Daggett is
the [p]resident of the [ILA]."
7
Plaintiff denies the Commission's contention in his response to the
Commission's Rule 4:46-2 statement, see R. 4:46-2(b), because the Commission
"claimed privilege in connection with its investigation," and its "assertion of
privilege render[ed] [p]laintiff[ unable] to answer [these m]aterial [f]act[s]."
However, following this denial, plaintiff admits Paul Babchik, Esq., the
Commission's senior counsel, "was the lead attorney supervising the
investigation," and that, "[o]n June 27, 2012, . . . Babchik advised [p]laintiff's
counsel," George Daggett, Esq., "that the . . . Commission had commenced an
investigation to determine whether [p]laintiff met the eligibility requirements. "
Plaintiff also admits "Babchik specifically advised that the . . . Commission was
investigating, among other things, [the] admissions made by [p]laintiff in [his]
application." Plaintiff otherwise admits the existence of an "investigation"
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interviews of [p]laintiff . . . on September 5, 2012 and October 23, 2013," and
questioned plaintiff "about the various answers he provided . . . in [his]
application." "Plaintiff was also questioned about his employment (while his
application was pending) at . . . the Nyack Pour House, his receipt of
unemployment benefits while he was employed [there,] . . . and the reporting of
his income on his tax returns." The Commission also "issued numerous
subpoenas on the Nyack Pour House, seeking documents and testimony related
throughout his responses to the Commission's statement of material facts. See
R. 4:46-2(a) to (b).
In Falcetti v. Waterfront Commission of New York Harbor (Falcetti I),
No. A-1082-15 (App. Div. Dec. 23, 2016) (slip op. at 19-20), we vacated the
trial court's order granting plaintiff's motion to compel discovery of the
Commission's investigatory file and remanded for the court to consider the
Commission's privilege log and perform the requisite balancing test of the
competing interests in disclosure of the documentation under Loigman v.
Kimmelman, 102 N.J. 98, 112-13 (1986). In Falcetti v. Waterfront Commission
of New York Harbor (Falcetti II), No. A-2912-16 (App. Div. July 5, 2017) (slip
op. at 10-11), we again vacated and remanded the court's order compelling
disclosure of the documentation because the court did not make the requisite
findings of fact and conclusions of law pursuant to Rule 1:7-4(a).
The record does not disclose the court's actions following our second
remand, and plaintiff does not appeal from any order entered following the
remand or argue the court erred following the second remand by determining
the Commission's investigative materials should not be provided in discovery
based on privilege or otherwise. Thus, any claim the court erred by determining
on remand that plaintiff is not entitled to discovery of investigative materials is
waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)
(explaining "issue[s] not briefed on appeal [are] deemed waived").
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to [p]laintiff's employment," and "conducted an interview . . . [of] one of the
owners of the [establishment], regarding [p]laintiff's work schedule and salary,"
on July 31, 2013.8 Throughout its investigation, the Commission "also requested
extensive documents from [p]laintiff, which [he] produced."
On or just prior to July 3, 2014, "Babchik . . . spoke (by telephone) with
Jay Ruble, Esq., Apexel's General Counsel." Following their conversation,
"Ruble emailed and mailed a letter to the . . . Commission formally withdrawing
Apexel's sponsorship of [p]laintiff's application." As a result of "Apexel's
withdrawal of [plaintiff's] sponsorship," the Commission was "statutorily
precluded [from taking] any further action . . . on [p]laintiff's application." See
N.J.S.A. 32:23-114. "On July 8, 2014, the . . . Commission notified [p]laintiff
that his application . . . had been administratively withdrawn for lack of
employer sponsorship."
8
Plaintiff again asserts in his response to the Commission's Rule 4:46-2
statement that he cannot respond to "this [m]aterial [f]act because the
[Commission] claimed privilege." However, the Commission supports this fact
with citation to competent record evidence, see R. 4:46-2(a) to (b), and,
moreover, "[p]laintiff's counsel admitted . . . he was made aware from
independent sources of activities taken by the . . . Commission's Police Division
in connection with its investigation of [p]laintiff," and plaintiff's counsel wrote
to Babchik in a May 7, 2013 email, "I learned today that . . . Commission
employees visited an establishment where [plaintiff] has been working in order
to survive."
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Plaintiff filed a complaint on July 14, 2014, "alleging [the Commission]
intentionally delayed and took no action in connection with [plaintiff's]
application," and seeking an order requiring the Commission to immediately
register him. Plaintiff also demanded punitive damages, counsel fees, costs, and
lost wages from April 2012 forward. 9
Following the conclusion of discovery, which included the depositions of
Babchik and Ruble, plaintiff filed an amended complaint asserting five causes
of action: (1) specific performance, "demand[ing a] judgment mandating that
the . . . Commission . . . immediately register . . . [p]laintiff as an approved
employee"; (2) tortious interference with economic advantage; (3) violation of
plaintiff's constitutional rights; (4) failure to act; and (5) breach of duty. Each
cause of action plaintiff asserted in the amended complaint was premised upon
one, or both, of the following factual assertions: (1) that the Commission
"deliberately delayed the application process for . . . [p]laintiff in hopes that
[he] . . . would withdraw his application"; and (2) that Babchik threatened,
coerced, or otherwise "induced" Ruble during their 2014 phone conversation to
withdraw plaintiff's sponsorship.
9
Plaintiff's July 14, 2014 complaint is not included in the record on appeal.
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11
We briefly describe Babchik's and Ruble's testimony concerning the
contents of their 2014 conversation preceding Apexel's withdrawal of plaintiff's
sponsorship. Ruble testified that during the conversation, "one of the
things . . . Babchik had mentioned to him was, '[D]o you know who [plaintiff's]
father is[?]'", and "Ruble responded that he did not." Ruble stated he "believe[d
Babchik] referenced something like a banned list" concerning plaintiff's father,
but he did not "recall if that[ was] the actual term." Ruble claimed, "having
heard that[, he] asked . . . Babchik, . . . 'What's the implications of that?'", and
Babchik responded, "[C]ertainly [plaintiff] would require a hearing." Ruble
testified he could not "recall if . . . Babchik gave [him] a specific amount of time
that [the process] would probably take," and "Babchik . . . didn't [tell him] it was
going to take a long time," but Ruble "believe[d] it was apparent from the
conversation that it was going to take a long time." Ruble testified "the reason
Apexel . . . withdr[ew] its sponsorship . . . [was] because it was going to take a
long period of time and Apexel didn't want to wait any longer."
Ruble testified "Apexel [did not] withdraw its sponsorship of [plaintiff]
because . . . Babchik asked [him] who [plaintiff's] father was," nor
"[d]id . . . Apexel withdraw its sponsorship . . . because . . . Babchik told
[him] . . . [plaintiff]'s father is on a banned list." Ruble further testified Babchik
A-5589-18
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did not "threaten" or "coerce [him] into withdrawing [plaintiff's] sponsorship";
"Babchik [did not] threaten that the . . . Commission would take any action
against [him] if . . . Apexel continued [plaintiff's] sponsorship"; "Babchik [did
not] threaten that the . . . Commission would take any action against . . . Apexel
if they continued [plaintiff's] sponsorship"; Babchik did not "impl[y] . . . that
the . . . Commission would not renew [Apexel]'s . . . license if it continued
[plaintiff's] sponsorship"; and "Babchik said [nothing] to [him] at any
point . . . that gave [him] the impression . . . that the . . . Commission would not
renew [Apexel]'s . . . license if it continued [plaintiff's] sponsorship." Finally,
Ruble testified he did not recall Babchik asking him, "Are you sure you want
[plaintiff] working for . . . Apexel?"
Babchik likewise testified he did not threaten, coerce, or instruct Ruble to
withdraw the sponsorship, and that he never asked Ruble if Ruble was "sure [he]
want[ed plaintiff] to work at Apexel." However, Babchik testified that during
the call, Ruble "apologized to [him] . . . [and] said that he should have told
[Babchik] eight months ago, but [Ruble] had asked around at [Apexel] . . . and
no one had heard of [plaintiff], and . . . for that reason they were withdrawing
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[their] sponsorship."10 Ruble testified he did not recall giving that reason to
Babchik; he did not recall doing any investigation into plaintiff prior to his and
Babchik's 2014 conversation; he did not recall telling Babchik "no one [knew]"
plaintiff; and he "would believe" "people [at Apexel] . . . [knew] who [plaintiff]
was."
Babchik testified that "[f]rom 2012 until . . . [approximately] June of
2013," the Commission's investigation "had . . . disclosed . . . reason[s] to
disqualify [plaintiff] from registration."11 However, Babchik stated he did not
advise anyone outside of the Commission's authority of any reasons to disqualify
plaintiff. When plaintiff's counsel asked Babchik, "What took so long to not
deny [plaintiff's] application if you said there was a reason . . . between 2012
and 2013?", Babchik responded, "The ongoing investigation and awaiting a
manpower assessment from [Apexel]."12 The record further establishes that
10
Babchik also testified the Commission's investigation did not reveal whether
plaintiff actually worked for Apexel, only that he was on Apexel's payroll.
11
Babchik was instructed by his counsel "not to answer [what those reasons
were] on the basis of the law enforcement investigatory privilege."
12
Ruble testified that he did not recall "Babchik [ever asking him] to do a
manpower assessment," and he "ha[d] no recollection of"
"[p]romising . . . Babchik at any time from 2012 to 2014 that [he] would do a
manpower assessment or . . . a staffing assessment in connection with"
plaintiff's application.
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during Babchik's deposition, he testified additional reasons supporting the
possible denial of plaintiff's application were developed during the period of
2013 to 2014, and that, at the time of the deposition, the investigation into
plaintiff's application was still ongoing. During the investigation, Babchik
received "a number of emails" from plaintiff's counsel concerning "why
[plaintiff's] application was taking so long."
The Commission moved for summary judgment. The court heard
argument on the Commission's motion, and, in an opinion from the bench,
granted the motion. The court found "[n]othing in [the] record suggests or
establishes any arbitrary conduct [or malice] on the part of the [Commission] in
connection with [plaintiff's] application." The court acknowledged the
application "took over . . . two years to investigate," but noted "it was not . . . a
simple investigation that did not raise issues." The court also found plaintiff
presented no evidence of a "time limitation[]" on the Commission's
investigation, and he did not offer any "evidence that the delay was unreasonable
or unjustified."
The court further noted that the Commission was conducting its
investigation over the two-year period, and the investigation had not yet been
completed when the sponsorship was withdrawn. The court also found Babchik
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informed plaintiff's counsel "throughout that period of what was going on." The
court then explained there is no constitutional "guarantee of registration to any
applicant," and that "before [the investigation] was concluded[,] Apexel
withdrew its sponsorship of the application . . . . And without that
sponsorship[,] the Commission . . . didn't have jurisdiction" to grant or deny
plaintiff's application.
The court concluded plaintiff did not present any competent evidence
supporting his "whole underlying argument" that the Commission "acted
arbitrarily, capriciously, or unreasonably" by either threatening or directing
Ruble to withdraw plaintiff's sponsorship or by intentionally and unduly
delaying its investigation, and that, as a result, plaintiff did "not sustain a cause
[of action] . . . against the Commission." The court entered an order awarding
the Commission summary judgment on May 23, 2019.
Plaintiff filed a motion for reconsideration of the summary judgment
order, which the court denied on July 12, 2019. In an oral opinion, the court
found plaintiff's motion for reconsideration was "identical to the motion the
[c]ourt[] already decided," and merely "a re-argument of the claims from
[plaintiff's] original [opposition to] summary judgment." The court explained
plaintiff failed to demonstrate that "[t]he [c]ourt expressed its decision based on
A-5589-18
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a palpably incorrect or irrational basis," or "[t]he [c]ourt did not consider or
fail[ed] to appreciate the significance of probative competent evidence ," see
Kornbleuth v. Westover, 241 N.J. 289, 301 (2020), and, therefore, plaintiff did
not sustain his burden to warrant reconsideration.
Plaintiff appeals from the court's May 23, 2019 order granting summary
judgment to the Commission and the court's July 12, 2019 order denying his
reconsideration motion.13 Plaintiff's brief on appeal includes three point
headings in the Legal Argument section of his Table of Contents. The point
headings are:
13
The Commission argues plaintiff's appeal of the court's summary judgment
award was untimely, and that we thus should not address plaintiff's arguments
concerning the summary judgment order. However, where "a motion for
reconsideration [of a summary judgment order] . . . implicate[s] the substantive
issues in the case and the basis for the motion judge's ruling on the summary
judgment and reconsideration motions . . . [are] the same," "an appeal solely
from . . . the denial of reconsideration may be sufficient for . . . appellate review
of the merits of the case, particularly where those issues are raised in the [case
information statement (CIS)]." Fusco v. Bd. of Educ. of Newark, 349 N.J.
Super. 455, 461 (App. Div. 2002). Here, although plaintiff's initial notice of
appeal stated he appealed only from the court's July 12, 2019 order denying
reconsideration, plaintiff indicated in his CIS that he also appealed from the May
23, 2019 order granting summary judgment. Further, "the basis for the motion
judge's ruling on the summary judgment and reconsideration motions [is] . . . the
same," ibid.; the court stated plaintiff's arguments in his motion for
reconsideration were "identical to the motion the [c]ourt[] already decided" on
summary judgment. Thus, even if plaintiff's appeal from the summary judgment
order was untimely, we must necessarily review the order to render a proper
determination on the court's order denying reconsideration. See ibid.A-5589-18
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Point I
The June-July Conversation Between Babchik and
Ruble
Point II
The Summary Judgment in this Case Should Have Been
Denied
Point III
The Motion for Reconsideration Should Have Been
Granted
II.
Initially, we note plaintiff's first point heading does not identify any legal
argument, nor does plaintiff make any legal argument under this point heading
in his brief. Instead, in Point I plaintiff sets forth certain testimony of Ruble and
Babchik, which he claims is contradictory, and he discusses Ruble's inability at
deposition to recall certain conversations with Babchik. Plaintiff asserts that
because Ruble "was [forty-six] years old and had been [c]orporate [c]ounsel for
[Apexel] since 2006," "the inference arises as to Ruble's loss of memory" that
"clearly . . . [Ruble] did not want the fact finder to know exactly what
happened." However, plaintiff does not tether these claims to any legal
arguments or authority. We discern from plaintiff's brief that the purported facts
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included in Point I are actually directed towards plaintiff's Point II argument that
the court erred in granting the Commission summary judgment.
Although plaintiff argues in Point II of his brief that the court's grant of
summary judgment to the Commission was in error, plaintiff again does not offer
any specific legal arguments or provide a single citation to applicable law in
support of his contention. To be sure, he argues we should reverse the summary
judgment award because the Commission allegedly delayed its investigation into
his application and Babchik allegedly threatened Ruble to withdraw his
sponsorship. However, plaintiff offers no legal arguments, or citations to
applicable law, explaining how those factual assertions, if true, would preclude
judgment in the Commission's favor as a matter of law. See R. 2:6-2(a)(6)
(requiring "the brief of the appellant [to] contain[,] . . . under [a] distinctive
title[]," "[t]he legal argument for the appellant, which shall be divided, under
appropriate point headings, distinctively printed or typed, into as many parts as
there are points to be argued"); see also Hayling v. Hayling, 197 N.J. Super. 484,
488-89 (App. Div. 1984) (explaining Rule 2:6-2(a)(6) is intended to ensure an
appellant provides a reviewing court with "an orderly and considered
presentation of the matter on appeal so that the court 'may have before it such
parts of the record and such legal authorities as will be of help in arriving at a
A-5589-18
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proper determination'" (quoting Abel v. Elizabeth Bd. of Works, 63 N.J. Super.
500, 509 (App. Div. 1960))).
Both the Commission and this court have "a right to know precisely what
legal arguments are being made and . . . need not respond to oblique hints and
assertions." Almog v. Isr. Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155
(App. Div. 1997). It is not the role of this court to weave together the fabric of
an argument on plaintiff's behalf, or to fashion hypothetical arguments which
may support a finding of a genuine issue of material fact as to one of plaintiff 's
claims. Thus, because plaintiff presents no specific legal arguments concerning
how the facts alleged in his brief, if true, raise a genuine issue of material fact
as to any of his claims, and does not cite to any legal authority supporting such
a finding, he fails to establish the court erred by granting the Commission
summary judgment. See R. 2:6-2(a)(6); R. 4:46-2(c); see also Hayling, 197 N.J.
Super. at 488-89; Abel, 63 N.J. Super. at 509; Almog, 298 N.J. Super. at 155.
We therefore affirm the summary judgment order.
Despite plaintiff's failure to identify any legal arguments supporting his
claim the court erred by granting summary judgment on the five causes of action
asserted in the complaint, as noted, we discern from his brief on appeal that he
contends the court erred because the evidence establishes that Babchik
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threatened, coerced, or directed Ruble to withdraw Apexel's sponsorship, and
the Commission purposely or unreasonably delayed its investigation to avoid
providing plaintiff with a hearing or a denial of his application. Although
plaintiff does not discuss these factual assertions in the context of any legal
argument related to the court's summary judgment award on his asserted causes
of action, they clearly provide the singular foundation for plaintiff's arguments
on appeal. Plaintiff's argument must therefore fail because the record is bereft
of competent evidence establishing, or demonstrating a genuine issue of material
fact as to whether Babchik threatened, coerced, or directed Ruble to withdraw
the sponsorship or the Commission's investigation was purposely or
unreasonably delayed.
First, although he repeatedly claims Babchik threatened Ruble to
withdraw his application, plaintiff also then illogically "concedes . . . Ruble did
not have a gun to his head, nor was . . . Apexel threatened with interference with
its license by the . . . Commission." (Emphasis added). Plaintiff does not cite
to any record evidence supporting his repeated claim that Babchik "threatened"
Ruble to obtain withdrawal of Apexel's sponsorship. Plaintiff also repeatedly
asserts Ruble "was told by . . . Babchik to withdraw the sponsorship," (emphasis
added), but that claim again is untethered to a citation to any evidence. Plaintiff
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appears to fail to understand that repeating a purported factual assertion
numerous times in a brief does not make it true and does not create a factual
issue that defeats a proper summary judgment motion. Plaintiff was required to
support his factual assertions with citations to competent evidence, and he failed
to sustain that burden.
"Competent opposition [to a summary judgment motion] requires
'competent evidential material' beyond mere 'speculation' and 'fanciful
arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App.
Div. 2009) (quoting Merchs. Express Money Ord. Co. v. Sun Nat'l Bank, 374
N.J. Super. 556, 563 (App. Div. 2005)). "'[C]onclusory and self-serving
assertions' . . . without explanatory or supporting facts will not defeat a
meritorious motion for summary judgment." Id. at 425-26 (quoting Puder v.
Buechel, 183 N.J. 428, 440 (2005)); see also James Talcott, Inc. v. Shulman, 82
N.J. Super. 438, 443 (App. Div. 1964) ("Mere sworn conclusions of ultimate
facts, without material basis or supporting affidavits by persons having actual
knowledge of the facts, are insufficient to withstand a motion for summary
judgment.").
Here, plaintiff's contention Babchik instructed or threatened Ruble to
withdraw his sponsorship is not only unsupported by "competent evidential
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22
material," Hoffman, 404 N.J. Super. at 426 (quoting Merchs. Express, 374 N.J.
Super. at 563), it is directly contradicted by the record evidence. Ruble
unequivocally testified Babchik did not "threaten" or "coerce [him] into
withdrawing [plaintiff's] sponsorship," and that "the reason
Apexel . . . withdr[ew the] sponsorship . . . [was] because" Ruble inferred from
his and Babchik's conversation that the approval process for plaintiff "was going
to take a long period of time[,] and Apexel didn't want to wait any longer."
Babchik also testified he did not threaten Ruble to withdraw the sponsorship ,
and both Babchik and Ruble testified Babchik did not otherwise direct Ruble to
withdraw the sponsorship.
Plaintiff's claims Babchik threatened, coerced, or directed Ruble to
withdraw the sponsorship are based entirely upon "'speculation' and 'fanciful
arguments.'" Ibid. (quoting Merchs. Express, 374 N.J. Super. at 563).
Therefore, the court correctly found these claims did not raise a genuine issue
of material fact precluding summary judgment to the Commission on any of
plaintiff's causes of action. See ibid. (quoting Merchs. Express, 374 N.J. Super.
at 563); Puder, 183 N.J. at 440-41; James Talcott, Inc., 82 N.J. Super. at 443;
see also R. 4:46-2(c).
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23
Plaintiff also does not cite to any competent evidence supporting a finding
the Commission intentionally delayed its investigation; that the Commission's
investigation was delayed in any way; or that the Commission had any desire to
impede plaintiff's registration. Plaintiff does not argue the entirety, or any
specific aspect, of the Commission's investigation took longer for him than it
would have, or should have, for any other applicant who provided the same
responses as plaintiff on the application. Plaintiff also does not dispute the
Commission was actively investigating him from 2012 to 2014, or that the
Commission had the statutory authority to do so based upon his affirmative
responses on the application. See generally N.J.S.A. 32:23-10(11) to -86(4); see
also N.J.S.A. 32:23-92(6) to (7); N.J.S.A. 32:23-29(c). Plaintiff offers only the
conclusory assertion that, two years after submitting his application, the
Commission had not approved or denied him, and therefore the Commission
intentionally delayed its investigation.
Plaintiff's "conclusory and self-serving assertions"—that the Commission
intentionally delayed its investigation; the Commission had some ill-intent
towards plaintiff; or that the investigation was in any way delayed—"without
explanatory or supporting facts," Hoffman, 404 N.J. Super. at 425-26 (quoting
Puder, 183 N.J. at 440), constitute "mere 'speculation,''' id. at 426 (quoting
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24
Merchs. Express, 374 N.J. Super. at 563), and thus "[can]not [serve to] defeat
[the Commission's] motion for summary judgment," id. at 425-26; see also
Puder, 183 N.J. at 440-41; James Talcott, Inc., 82 N.J. Super. at 443. Plaintiff
was required to provide competent evidence supporting those assertions in his
opposition to the Commission's motion. See R. 4:46-2(c); Hoffman, 404 N.J.
Super. at 425-26; Puder, 183 N.J. at 440-41. He did not. Therefore, we concur
with the court's finding that plaintiff's claim that the Commission intentionally
or unreasonably delayed its investigation did not raise a genuine issue of
material fact precluding summary judgment to the Commission. See R. 4:46-
2(c); Hoffman, 404 N.J. Super. at 425-26; Puder, 183 N.J. at 440-41.
Finally, although plaintiff did not make the following argument before the
trial court, see Nieder v. Royal Indem. Ins., 62 N.J. 229, 234 (1973)
("[A]ppellate courts will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation is
available 'unless the questions so raised on appeal go to the jurisdiction of the
trial court or concern matters of great public interest.'" (quoting Reynolds Offset
Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959))), and did not brief
the issue on appeal, see Sklodowsky, 417 N.J. Super. at 657, we nonetheless
acknowledge that "[i]n limited circumstances, agency actions may be set aside
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25
as fundamentally unfair where the agency failed to act within a reasonable time
and the delay 'evidence[d] an entire lack of that acute appreciation of justice
which should characterize a tribunal with [such a] delicate and important duty.'"
N.J. Div. of Child Prot. & Permanency v. G.R., 435 N.J. Super. 392, 403 (App.
Div. 2014) (second and third alterations in original) (quoting In re Arndt, 67
N.J. 432, 436-37 (1975)). We further explained the doctrine of fundamental
unfairness "effectuates imperatives that government minimize arbitrary action,
and [it] is often employed when narrowed constitutional standards fall short of
protecting individual[s] against unjustified harassment, anxiety, or expense."
Ibid. (second alteration in original) (quoting State v. Miller, 216 N.J. 40, 71
(2013)). The "doctrine [is] to be sparingly applied," and only "in those rare
cases where not to do so will subject [an individual] to oppression, harassment,
or egregious deprivation." Ibid. (second alteration in original) (quoting Miller,
216 N.J. at 71-72).
As noted, however, plaintiff presents no evidence of undue delay or
arbitrary action in the Commission's investigation, nor does he offer evidence
supporting a finding the Commission failed to act within a reasonable time.
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26
Plaintiff merely notes the amount of time that elapsed between him filing the
application and Apexel's withdrawal of his sponsorship. 14
Plaintiff argues the investigation was unduly delayed because Babchik
testified he uncovered reasons to deny plaintiff registration during the period of
2012 to 2013 but he did not advise plaintiff of those reasons or deny plaintiff's
application at that time. Plaintiff does not cite to any legal authority supporting
the proposition that the Commission had an obligation to inform him of reasons
it developed to deny the application during its ongoing investigation, and
plaintiff's argument ignores Babchik's testimony that the Commission's
investigation continued to develop reasons to deny plaintiff's application in 2013
and 2014, and that the investigation continued even after Apexel withdrew its
sponsorship. The Commission was entitled to complete its investigation prior
to rendering a final determination on plaintiff's application, and, as noted,
plaintiff provides no evidence the Commission's ongoing investigation was
unreasonably conducted or unduly delayed.
14
We note plaintiff did not appeal from the trial court's determination, following
our remand in Falcetti II, concerning the Commission's privilege log, and
plaintiff does not argue on appeal that his inability to review that documentation
rendered him unable to determine the reasonableness of the Commission's
investigation.
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In sum, the entirety of plaintiff's complaint, as well as his arguments on
appeal, hinge either on his assertion (1) that Babchik threatened, coerced, or
directed Ruble to withdraw plaintiff's sponsorship, or (2) that the Commission
intentionally, unduly, or unreasonably delayed its investigation. Those
assertions constitute "mere 'speculation,''' unsupported by the evidentiary
record. Hoffman, 404 N.J. Super. at 426 (quoting Merchs. Express, 374 N.J.
Super. at 563). The court therefore correctly determined plaintiff failed to raise
a genuine issue of material fact precluding summary judgment to the
Commission on any of his claims. Id. at 425-26; see also Puder, 183 N.J. at 440-
41; R. 4:46-2(c).
III.
We next address plaintiff's argument the court erred by denying his motion
for reconsideration of the summary judgment order. "[A] motion for
reconsideration 'is not properly brought simply because a litigant is dissatisfied
with a judge's decision, nor is it an appropriate vehicle to supplement an
inadequate record.'" Guido v. Duane Morris LLP, 202 N.J. 79, 87 (2010)
(citation omitted). Rather, a motion for reconsideration "is primarily an
opportunity to seek to convince the court that either 1) it has expressed its
decision based upon a palpably incorrect or irrational basis, or 2) it is obvious
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28
that the court either did not consider, or failed to appreciate the significance of
probative, competent evidence." Kornbleuth, 241 N.J. at 301 (quoting Guido,
202 N.J. at 87-88). "[T]he aggrieved party [must] 'state[] with specificity the
basis on which [the motion for reconsideration] is made, including a statement
of the matters or controlling decisions which counsel believes the court has
overlooked or as to which it has erred.'" Ibid. (fourth alteration in original)
(quoting R. 4:49-2).
"We will not disturb the trial court's reconsideration decision 'unless it
represents a clear abuse of discretion.'" Ibid. (quoting Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 283 (1994)). "An abuse of discretion 'arises
when a decision is made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis.'" Id. at 302(quoting Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super.
378, 382 (App. Div. 2015)).
Because we find the court did not err in granting the Commission
summary judgment, we also find the court did not err in denying reconsideration
of the summary judgment award.
Moreover, the court found "plaintiff [did] not identify any grounds that
would qualify for the [c]ourt to reconsider, nothing palpably incorrect. Nor any
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29
evidence that the [c]ourt failed to consider. It's a re-argument of the claims from
the original summary judgment." Plaintiff does not provide the certification he
submitted to the court in support of the motion in his appendix on appeal. As a
result, we are unable to review the certification either to confirm the court's
assessment of plaintiff's argument in support of the motion, or to render an
independent determination on whether plaintiff was merely "dissatisfied with
[the court]'s decision" and re-arguing his initial opposition to summary
judgment, Guido, 202 N.J. at 87 (citation omitted), or if he offered evidence
purporting to establish the court "expressed its decision based upon a palpably
incorrect or irrational basis, or . . . that the court . . . did not consider, or failed
to appreciate the significance of probative, competent evidence," Kornbleuth,
241 N.J. at 301 (quoting Guido, 202 N.J. at 87-88); see also R. 2:6-1(a)(1)(I)
(requiring an appellant to provide "such . . . parts of the record . . . as are
essential to the proper consideration of the issues" in his or her appendix on
appeal); Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-
78 (App. Div. 2002) (finding because an appellant's failure to adhere to the
requirements of Rule 2:6-1(a)(1)(I) "rendered review on the merits impossible,
we ha[d] no alternative but to affirm"). Plaintiff's failure to provide on appeal
the certification submitted in support of his motion for reconsideration leaves us
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30
with no foundation upon which to find the court's denial of the motion was in
error. We therefore affirm the court's order. See R. 2:6-1(a)(1)(I); Soc'y Hill
Condo. Ass'n, 347 N.J. Super. at 177-78. We add only the following comments.
Plaintiff's arguments on appeal do not reveal a "palpably
incorrect . . . basis" upon which the court granted the Commission summary
judgment, nor do they establish the court "failed to appreciate the significance
of [any] probative, competent evidence." Kornbleuth, 241 N.J. at 301 (quoting
Guido, 202 N.J. at 87-88). Plaintiff argues the court ignored that the
Commission "did not deny [p]laintiff's application, did not approve that
application, [and] did not grant a hearing before an [ALJ,] which is a predicate
to denial." Thus, he claims the court "did not deal with [the Commission's]
failure to function in this case." Plaintiff's argument is incorrect and, in part,
self-defeating.
First, the court expressly considered that the Commission did not approve
or deny plaintiff's application or provide plaintiff with a hearing, and determined
these facts did not raise a genuine issue of material fact because (1) the
Commission actively investigated plaintiff's application, (2) plaintiff did not
provide evidence the investigation was unreasonable, see G.R., 435 N.J. Super.
at 402-03, and (3) the Commission was unable to take further action on
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31
plaintiff's application following Apexel's withdrawal of his sponsorship, see
N.J.S.A. 32:23-114. Second, although plaintiff argues the Commission
breached a duty by not affording him "a hearing[,] . . . which is a predicate to
denial," plaintiff admits the Commission did not issue a denial. Thus, the
Commission could not have breached a duty to plaintiff by virtue of its failure
to grant him a hearing that is a "predicate to denial" where the undisputed
evidence established the Commission did not issue a denial.
Plaintiff inaccurately claims "[t]he [c]ourt never dealt with why the
sponsorship was withdrawn." However, the court expressly addressed Apexel's
withdrawal of plaintiff's sponsorship, and found the undisputed facts established
Apexel did not withdraw the sponsorship due to any influence exerted by the
Commission. Because the court found the Commission did not coerce or instruct
Apexel to withdraw plaintiff's sponsorship, Apexel's reasoning was of no
moment to the court's decision. Once Apexel withdrew the sponsorship, the
Commission lacked authority to take further action on plaintiff's application.
See ibid. Plaintiff's mere dissatisfaction with the court's analysis of the evidence
in its summary judgment determination is not a proper basis for reconsideration.
See Guido, 202 N.J. at 87. Further, and as noted, the court analyzed the evidence
before it on the summary judgment motion, and correctly determined the
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32
evidence did not raise any genuine issues of material fact and the Commission
was entitled to judgment as a matter of law.
Because "[w]e will not disturb the trial court's reconsideration decision
'unless it represents a clear abuse of discretion,'" Kornbleuth, 241 N.J. at 301
(quoting Hous. Auth. of Morristown, 135 N.J. at 283), and the court's decision
here was accompanied by "a rational explanation," in accord with case law and
"established policies," and rested on the precise basis a reconsideration motion
should be decided on—whether the movant indicated a palpable error in the
court's issuance of the underlying order or that the court failed to appreciate
probative evidence—there exists no basis for us to disturb the court's denial of
reconsideration, id. at 302 (quoting Pitney Bowes Bank, 440 N.J. Super. at 382);
see also Guido, 202 N.J. at 87-88.
Any arguments made on plaintiff's behalf that we have not expressly
addressed are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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