JOSE VILLANUEVA VS. CITY OF CLIFTONÂ (L-3354-15, PASSAIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4631-15T2
JOSE VILLANUEVA,
Plaintiff-Appellant,
v.
CITY OF CLIFTON,
Defendant-Respondent,
and
CITY OF CLIFTON DEPARTMENT
OF PUBLIC WORKS,
Defendant.
Submitted July 12, 2017 – Decided July 26, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, Docket
No. L-3354-15.
Emolo & Collini, attorneys for appellant (John
C. Emolo, on the brief).
Matthew T. Priore, Clifton Municipal Attorney,
attorney for respondent (Thomas M. Egan,
Assistant Municipal Attorney, on the brief).
PER CURIAM
Plaintiff Jose Villanueva appeals from a May 16, 2016 Law
Division order that denied his motion for reconsideration.
Plaintiff sought reconsideration of an earlier order that denied
his motion to amend his complaint. For the reasons that follow,
we affirm.
On September 8, 2014, plaintiff instituted this action
against defendant City of Clifton and its Department of Public
Works (DPW) (collectively, Clifton) for injuries he allegedly
sustained when he slipped on ice outside the Clifton Municipal
Building on January 10, 2014. Plaintiff asserted that Clifton was
negligent in failing to adequately remove snow and ice from the
walkway in front of the building. A Clifton police officer
responded to the scene and his incident report describes the
pertinent events as follows:
As [plaintiff] exited the building, he slipped
on the wet ground just prior to the outside
steps. He fell back and was unable to get up
due to pain in his upper back and [r]ear neck
area. [Plaintiff] is disabled and has had
surgery on his back in the past. EMS 2 arrived
on [the] scene and transported [plaintiff] to
St. Joseph's Hospital . . . . DPW workers
[are] currently on the scene placing rock salt
on the walkway due to it snowing at this time.
Clifton filed its answer in October 2014. Clifton denied it
was negligent, and set forth numerous affirmative defenses,
including that it was immune from liability.
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The matter was initially assigned an August 6, 2015 discovery
end date (DED). The DED was extended until October 5, 2015, by
consent of the parties. On September 4, 2015, the DED was extended
to January 4, 2016, on plaintiff's motion. On January 19, 2016,
on Clifton's motion, the DED was extended a third time until March
24, 2016, and an arbitration hearing was simultaneously scheduled
for that date.
On February 19, 2016, Clifton moved for summary judgment,
invoking the common law doctrine of snow removal immunity accorded
to public entities that the Supreme Court first recognized in
Miehl v. Darpino, 53 N.J. 49 (1968). Plaintiff opposed the motion,
and cross-moved for leave to amend his complaint to include
additional counts alleging that Clifton violated the New Jersey
Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and
failed to warn of a dangerous condition. In support of the cross-
motion, plaintiff's counsel certified that plaintiff testified at
his September 2015 deposition that he did not use the disability
entrance ramp when he left the Municipal Building "because it was
impassable due to ice and snow, causing him to have to walk in
front of the building to exit same which was covered with ice."
Plaintiff also sought to adjourn the March 24, 2016 arbitration,
and extend the DED a fourth time for an additional ninety days,
to June 24, 2016.
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Clifton opposed the motion to amend on the basis that it
would be prejudiced by the amendment at such a late stage in the
proceedings. Clifton also argued it was absolutely immune from
liability for all snow removal activities under Miehl, thus
rendering the proposed amended complaint futile.
The court declined to adjourn the March 24, 2016 arbitration.
On April 11, 2016, Clifton rejected the arbitration award and
filed a timely demand for a trial de novo. Five days later, a
June 27, 2016 trial date was scheduled.
On April 21, 2016, the court heard plaintiff's motion to
amend the complaint and extend discovery. In denying the motion,
the judge explained: "This [Track] II case has had 531 days of
discovery. A trial date of 6/27/16 is set. Plaintiff knew of the
information for more than [six] months prior to making this motion.
The granting of this motion would unduly delay resolution."
On April 25, 2016, plaintiff filed a motion seeking
reconsideration of that portion of the April 21 order that denied
leave to file an amended complaint. Plaintiff's counsel cited the
liberal standard for granting amendments, and now asserted that
Clifton would not be prejudiced as no further discovery was needed
with respect to the proposed LAD claim. Clifton opposed the
motion, arguing that: (1) plaintiff did not meet the standard for
reconsideration under Rule 4:49-2 and applicable case law; (2) it
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would be prejudiced if it was compelled to defend plaintiff's LAD
claim without the benefit of proper discovery; and (3) as with
plaintiff's original claims, his newly asserted claims were
futile.
The court denied plaintiff's motion for reconsideration on
May 16, 2016. The court found that plaintiff "failed to show that
this [c]ourt's 4/21/16 [o]rder was based on palpably incorrect
reasoning or it failed to consider relevant information."
Subsequently, on June 1, 2016, a different judge granted Clifton's
motion for summary judgment, thereby dismissing plaintiff's
complaint with prejudice.
Plaintiff filed the present appeal on July 1, 2016. The
Notice of Appeal and accompanying case information statement
identify the May 16, 2016 order denying reconsideration as the
order from which plaintiff appeals.
Rule 2:5-1(f)(3)(A) states, "In civil actions the notice of
appeal shall . . . designate the judgment, decision, action or
rule, or part thereof appealed from[.]" Therefore, "it is only
the judgments or orders or parts thereof designated in the notice
of appeal which are subject to the appeal process and review."
Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R.
2:5-1 (2017); see also Campagna ex rel. Greco v. Am. Cyanamid Co.,
337 N.J. Super. 530, 550 (App. Div.) (refusing to consider an
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order not listed in the notice of appeal), certif. denied, 168
N.J. 294 (2001).
"Consequently, if the notice [of appeal] designates only the
order entered on a motion for reconsideration, it is only that
proceeding and not the order that generated the reconsideration
motion that may be reviewed." Pressler & Verniero, supra, comment
6.1 on R. 2:5-1 (2017); see also W.H. Indus., Inc. v. Fundicao
Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008)
(considering only the order denying reconsideration because it was
the sole order designated in the notice of appeal); Fusco v. Bd.
of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App.
Div.) (reviewing only denial of the plaintiff's motion for
reconsideration and refusing to review the original grant of
summary judgment because that order was not designated in the
notice of appeal), certif. denied, 174 N.J. 544 (2002).
The sole argument advanced in plaintiff's brief is that the
motion court abused its discretion when it denied his motion to
amend the complaint. However, as noted, plaintiff's notice of
appeal listed the May 21, 2016 order denying his motion for
reconsideration as the only order being appealed. Therefore, we
limit our review to the provisions of that order.
A trial court's order on a motion for reconsideration will
not be set aside unless shown to be a mistaken exercise of
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discretion. Granata v. Broderick, 446 N.J. Super. 449, 468 (App.
Div. 2016) (citing Fusco, supra, 349 N.J. Super. at 462), certif.
denied, ___ N.J. ___ (2017). Reconsideration should only be
granted in those cases in which the court had based its decision
"upon a palpably incorrect or irrational basis," or did not
"consider, or failed to appreciate the significance of probative,
competent evidence." Ibid. (quoting D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990)). A motion for reconsideration
must "state with specificity the basis on which it 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[.]" R. 4:49-2.
We discern no abuse of discretion on the part of the trial
court in denying reconsideration here. Plaintiff has failed to
present any new facts that were not available at the time the
motion to amend was made, nor has he pointed to any controlling
legal authority that the court either overlooked or misapplied in
denying his original motion to amend. Moreover, while plaintiff
is correct that leave to amend is to be liberally granted, see
Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006), a
decision on a motion to amend "is generally left to the sound
discretion of the trial court, and its exercise of discretion will
not be disturbed on appeal, unless it constitutes a 'clear abuse
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of discretion.'" Franklin Med. Assocs. v. Newark Pub. Sch., 362
N.J. Super. 494, 506 (App. Div. 2003) (internal citation omitted)
(quoting Salitan v. Magnus, 28 N.J. 20, 26 (1958)). "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, supra, 185 N.J. at 501.
Additionally, a motion to amend is properly denied where, as here,
the merits of the amendment are marginal, and allowing the
amendment would unduly protract the litigation or cause undue
prejudice. Pressler & Verniero, Current N.J. Court Rules, comment
2.2.1 on R. 4:9-1 (2017).
Affirmed.
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