Jorge Salcedo v. Public Service Electric & Gas and City of Union City ( 2024 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-3935-22
    JORGE SALCEDO,
    Plaintiff-Appellant,
    v.
    PUBLIC SERVICE ELECTRIC
    & GAS, UNITED WATER NEW
    JERSEY, and COUNTY OF
    HUDSON,
    Defendants,
    and
    CITY OF UNION CITY,
    Defendant-Respondent.
    ____________________________
    Submitted July 16, 2024 – Decided July 29, 2024
    Before Judges Sabatino, Perez Friscia, and Chase.
    On appeal from the Superior Court of New Jersey, Law
    Division, Hudson County, Docket No. L-2340-20.
    Christopher P. Gargano, PC, attorney for appellant
    (Christopher Peter Gargano, of counsel and on the
    briefs).
    Eric J. Nemeth, PC, attorneys for           respondent
    (Chryzanta K. Hentisz, on the brief).
    PER CURIAM
    Plaintiff Jorge Salcedo appeals from an April 14, 2022 Law Division
    order, which granted defendant 1 the City of Union City's motion for a protective
    order quashing the deposition of its mayor. Plaintiff also appeals from a July
    17, 2023 order dismissing his complaint with prejudice. We affirm.
    I.
    We summarize the facts and procedural history from the record. On June
    28, 2018, plaintiff, a laborer employed by defendant's Parks Department, was
    injured while working at Liberty Park. He was watering plants and had stepped
    on a sidewalk utility box, which collapsed and caused him to fall. He contends
    the utility box was in a dangerous condition.
    On April 16, 2019, plaintiff filed an Open Public Records Act (OPRA),
    N.J.S.A. 47:1A-1 to -13, request with defendant for all information related to
    the utility box. Defendant responded no records were available and indicated
    1
    As discussed below, the other named defendants have been dismissed.
    A-3935-22
    2
    Hudson County owned the area where the accident occurred. Plaintiff then filed
    an OPRA request with Hudson County, which yielded no results as the property
    was "not within the Hudson County right of way." Defendant thereafter retained
    a title company that determined defendant "[wa]s the owner of Liberty Plaza"
    and no easements existed.
    Plaintiff successfully filed a workers' compensation claim. The New
    Jersey Intergovernmental Insurance Fund ("NJIIF") covered the workers'
    compensation award, as defendant was a member. Pursuant to N.J.S.A. 34:15-
    40(f),2 the NJIIF notified plaintiff that failing to pursue a liability claim against
    a responsible third party for the accident may result in defendant filing a
    subrogation action for reimbursement.
    On June 29, 2020, plaintiff filed a two-count amended complaint alleging:
    negligence against Public Service Electric and Gas ("PSEG"), United Water of
    New Jersey, SUEZ Water, and fictitious parties John Does and ABC companies;
    and discovery claims against defendant and Hudson County.                    Plaintiff
    2
    N.J.S.A. 34:15-40(f) provides an employer or the employee's insurance carrier can
    institute an action against a liable party if an "injured employee . . . fail[s] within
    [one] year of the accident to either effect a settlement with the [liable] third person
    or . . . institute proceedings for recovery of damages for his injuries." The employer
    or the insurance carrier may only initiate proceedings "[ten] days after a written
    demand on the injured employee." Ibid.
    A-3935-22
    3
    acknowledged his workers' compensation claim and defendant's "statutory lien."
    Defendant was named "for purposes of discovery only" and the claim sought to
    identify the entities or persons responsible for the utility box condition.
    On March 24, 2021, the parties conducted a site visit to observe the
    condition of the utility box and ascertain potentially responsible entities. On
    June 28, plaintiff requested depositions of defendant's mayor Brian Stack and
    defendant's engineer Ralph Tango, Jr., from Colliers Engineering. Defendant's
    counsel responded by email advising only Tango would appear for a deposition
    on a later date. Plaintiff continued to request the mayor's deposition. The next
    day, plaintiff moved to extend discovery, which the motion judge granted as
    unopposed, extending the discovery end date until November 20.                As no
    depositions had occurred, on November 1, plaintiff again moved to extend the
    discovery end date, which the judge granted until February 18, 2022.
    In January 2022, defendant served answers to interrogatories naming
    Tango and Alicia Morejan, the Director of the Parks Department, as parties with
    knowledge of relevant facts. After the parties completed written discovery,
    plaintiff requested defendant's consent to extend discovery to complete the
    mayor's and Tango's depositions. On February 15, defense counsel consented
    to Tango's deposition but stated, "[w]e have not agreed to the dep[osition] of
    A-3935-22
    4
    [the m]ayor. . . at this time." Plaintiff again moved to enforce litigant's rights
    and for a discovery extension representing consent was obtained; however,
    plaintiff failed to advise the judge of defendant's objections to the mayor's
    deposition.   On March 4, the judge granted plaintiff's unopposed motion,
    ordering depositions by March 25 and setting an April 19 discovery end date.
    The judge noted the case by that point had over 630 days of discovery.
    Defendant moved for reconsideration of the order and requested a protective
    order quashing the mayor's deposition.
    While defendant's motion was pending, plaintiff deposed Tango on March
    25. Tango testified he had served as defendant's engineer for thirty-four years
    and reported to the mayor and commissioners.          After years of overseeing
    defendant's road and infrastructure projects, he relayed there was likely no one
    more knowledgeable about the projects. He testified Liberty Plaza had existed
    since the Lincoln Tunnel entrance was built. Tango named multiple departments
    with park and utility box oversight including: the Department of Public Works
    ("DPW"), the Parks Department, and the Building Department. He specifically
    named multiple department heads with possible knowledge. Plaintiff did not
    seek to depose the identified department heads.
    A-3935-22
    5
    On April 14, the judge granted defendant's reconsideration motion, issuing
    a protective order quashing the mayor's deposition. The judge found "the mayor
    [wa]s not likely to have relevant information," plaintiff failed to support that
    "the mayor ha[d] first-hand knowledge," and that the "depositions [of] the
    [defendant's] Finance, DPW, Parks, and Construction Departments have not
    been conducted and those may be more fruitful and less burdensome than
    deposing the mayor."
    After the judge's decision, plaintiff did not seek to depose anyone else and
    sought no further discovery extension. On July 11, 2023, plaintiff voluntarily
    dismissed co-defendants PSEG and Suez Water.3 On July 17, approximately
    fifteen months after the discovery end date, plaintiff appeared for trial. Before
    the trial judge, plaintiff's counsel acknowledged co-defendants were dismissed
    and it was "a discovery case, that [was] it." The judge dismissed the complaint
    with prejudice, finding no viable cause of action, as the only remaining claim
    was for discovery against defendant.
    On appeal, plaintiff contends: a remand reinstating plaintiff's complaint
    is warranted because the protective order quashing the mayor's deposition was
    3
    The order noted plaintiff voluntarily dismissed "Suez Water New Jersey, Inc.,"
    incorrectly pleaded as "Suez Water" and "United Water New Jersey."
    A-3935-22
    6
    erroneously entered and extraordinary circumstances surrounding discovery
    existed, and the trial judge's dismissal of his complaint with prejudice was an
    abuse of discretion.
    II.
    We apply "an abuse of discretion standard to [discovery] decisions made
    by [the] trial courts." C.A. ex rel. Applegrad v. Bentolila, 
    219 N.J. 449
    , 459
    (2014) (second alteration in original) (quoting Pomerantz Paper Corp. v. New
    Cmty. Corp., 
    207 N.J. 344
    , 371 (2011)). "[W]e accord substantial deference to
    a trial court's disposition of a discovery dispute." Brugaletta v. Garcia, 
    234 N.J. 225
    , 240 (2018). Further, appellate courts "will not ordinarily reverse a trial
    court's disposition of a discovery dispute 'absent . . . a judge's misunderstanding
    or misapplication of the law.'" 
    Ibid.
     (quoting Cap. Health Sys., Inc. v. Horizon
    Healthcare Servs., Inc., 
    230 N.J. 73
    , 79-80 (2017)). 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."
    Kornbleuth v. Westover, 
    241 N.J. 289
    , 302 (2020) (quoting Pitney Bowes Bank,
    Inc. v. ABC Caging Fulfillment, 
    440 N.J. Super. 378
    , 382 (App. Div. 2015)).
    Generally, parties may discover non-privileged information "which is
    relevant to the subject matter involved in the pending action." R. 4:10-2(a).
    A-3935-22
    7
    "[A]ppellate courts must start from the premise that discovery rules 'are to be
    construed liberally in favor of broad pretrial discovery.'" Cap. Health Sys., 
    230 N.J. at 80
     (quoting Payton v. N.J. Tpk. Auth., 
    148 N.J. 524
    , 535 (1997)).
    Discovery requests are to be "reasonably calculated to lead to the discovery of
    admissible evidence," and an objection that the information will be inadmissible
    at trial is unavailing. Brugaletta, 
    234 N.J. at 249
     (quoting In re Liquidation of
    Integrity Ins. Co., 
    165 N.J. 75
    , 82 (2000)). Nonetheless, "the scope of discovery
    is not infinite." K.S. v. ABC Pro. Corp., 
    330 N.J. Super. 288
    , 291 (App. Div.
    2000).
    Rule 4:10-3 provides that "a party" may "for good cause shown" seek "any
    order that justice requires to protect a party or person from annoyance,
    embarrassment, oppression, or undue burden or expense." "[T]o overcome the
    presumption in favor of discoverability, a party" seeking a protective order
    under Rule 4:10-3 "must show 'good cause' for withholding relevant discovery."
    Cap. Health Sys., 
    230 N.J. at 80
     (quoting R. 4:10-3). "To determine whether
    the materials sought by [plaintiff] are discoverable, their potential relevance is
    the initial inquiry. In deciding whether evidence is relevant the focus is on the
    'logical connection between the proffered evidence and a fact in issue.'"
    Liquidation of Integrity Ins., 
    165 N.J. at 82
     (quoting State v. Hutchins, 241 N.J.
    A-3935-22
    8
    Super. 353, 358 (App. Div. 1990)). "N.J.R.E. 401 defines relevant evidence as
    'evidence having a tendency in reason to prove or disprove any fact of
    consequence to the determination of the action.'" 
    Ibid.
     (quoting N.J.R.E. 401).
    III.
    Plaintiff contends extraordinary circumstances exist in this case and the
    motion judge's protective order quashing the mayor's deposition therefore
    constituted an abuse of discretion. Plaintiff avers the mayor's deposition was
    warranted because of his potential factual knowledge, which was demonstrated
    by his presence in the park for a dedication ceremony and possible knowledge
    of park projects. We disagree.
    Defendant demonstrated good cause to preclude the mayor's deposition as
    overly burdensome because plaintiff proffered an insufficient foundation to
    establish the mayor's first-hand knowledge of the utility box or the cause of its
    collapse. The mayor's position alone as defendant's chief executive officer is an
    insufficient basis for his deposition. See Hyland v. Smollok, 
    137 N.J. Super. 456
    , 460 (App. Div. 1975) (finding depositions of "high-level government
    officials" are unwarranted "absent a showing of first-hand knowledge or direct
    involvement in the events giving rise to an action, or absent a showing that such
    deposition[s] [are] essential to prevent injustice").
    A-3935-22
    9
    Plaintiff's argument that defendant obfuscated discovery by failing to
    identify responsible parties and specifically that "Tango lacked any information
    regarding the individuals or entities involved in performing any work at the
    subject site" is belied by the record. Tango identified the director of the Parks
    Department in his answers to interrogatories, and at his deposition named
    multiple department heads with knowledge of the park area and utility box.
    Plaintiff's decision not to depose the named individuals with potential
    knowledge before the discovery end date does not serve as cause for reversal.
    We also reject plaintiff's argument that there was limited time to conduct
    a deposition before the discovery end date. There was sufficient time to serve
    deposition notices, under Rule 4:14-2, and no discovery extension was sought.
    Further, under Rule 4:14-2(c), plaintiff failed to notice the deposition of any
    department members on an identified subject matter, which would have required
    defendant to designate a representative "to testify on its behalf. . . . as to matters
    known or reasonably available to the organization." Had plaintiff undertaken
    further discovery and garnered a basis to support the mayor's deposition, then
    he could have moved for reconsideration of the protective order.
    A presumption of broad discovery is ingrained in our jurisprudence,
    "[n]evertheless, there are limits." Lipsky v. N.J. Ass'n of Health Plans, Inc., 474
    A-3935-22
    
    10 N.J. Super. 447
    , 464 (App. Div. 2023). We discern no error by the motion judge
    quashing the mayor's deposition and find no merit to plaintiff's argument that
    "additional time for discovery to uncover the responsible party behind the
    hazard" is mandated.
    Based on the forgoing, we conclude plaintiff's contention that the trial
    judge erroneously dismissed his complaint with prejudice on the trial date is also
    without merit.    Plaintiff acknowledged "all of the other defendants" were
    dismissed because liability "was[] [not] there." The record reflects the only
    remaining claim was a discovery claim against defendant, discovery ended
    almost a year and a half earlier, and plaintiff had already exhausted over 630
    days of discovery. Given those circumstances, we discern no abuse of discretion
    by the trial judge in dismissing plaintiff's action with prejudice.
    To the extent we have not specifically addressed any of plaintiff's
    arguments, it is because they lack sufficient merit to warrant discussion in a
    written opinion. R. 2:11-3(e)(1)(E).
    Affirmed.
    A-3935-22
    11
    

Document Info

Docket Number: A-3935-22

Filed Date: 7/29/2024

Precedential Status: Non-Precedential

Modified Date: 7/29/2024