TROOPER BRETT BLOOM, ETC. VS. STATE OF NEW JERSEYÂ (L-542-12, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-0110-15T1
TROOPER BRETT BLOOM
(BADGE NO. 5239),
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
NEW JERSEY STATE POLICE, THE
OFFICE OF THE ATTORNEY GENERAL
OF THE STATE OF NEW JERSEY,
SERGEANT ROBERT COWDEN, LIEUTENANT
JAMES RYAN, CAPTAIN JOHN FLYNN, and
MAJOR MARSHALL CRADOCK,1
Defendants-Respondents.
_______________________________________
Submitted May 2, 2017 – Decided August 2, 2017
Before Judges Fasciale and Sapp-Peterson.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-542-12.
Daggett & Kraemer, attorneys for appellant
(George T. Daggett, on the brief).
1
Major Marshall Cradock was incorrectly designated as "Major
Craddock" in the record.
Christopher S. Porrino, Attorney General,
attorney for respondents (Lisa A. Puglisi,
Assistant Attorney General, of counsel and on
the brief; Gregory R. Bueno, Deputy Attorney
General, on the brief).
PER CURIAM
Plaintiff, Brett Bloom (Bloom), a member of the New Jersey
Division of State Police (Division), appeals from the August 7,
2015 order granting summary judgment, and dismissing with
prejudice, his complaint against defendants, the State of New
Jersey, the Division, Detective Sergeant Robert Cowden (Cowden),
Lieutenant James Ryan (Ryan), Captain John Flynn (Flynn), and
Major Marshall Cradock (Cradock) (collectively referred to as
defendants). In his complaint, Bloom raised two separate causes
of actions under the New Jersey Conscientious Employee Protection
Act ("CEPA"), N.J.S.A. 34:19-1 to -14, alleging that his superiors
subjected him to harassment and retaliation. Bloom additionally
asserted a claim that defendants violated his right to petition
guaranteed under the First Amendment to the United States
Constitution, U.S. Const. amend. I, and Article I of the New Jersey
Constitution, N.J. Const. art. I, ¶¶ 6 and 18 (Petition Clause)
(Count Three). Finally, in Count Four Bloom alleged that there
2 A-0110-15T1
had been "a systematic endeavor by the [Division] to cover up the
actions of Defendant Cowden."2
In granting summary judgment, the motion judge concluded that
all but one of the facts asserted in Count One, Bloom's retaliatory
transfer in April 2011, were barred by the statute of limitations;
and the remaining 2011 retaliatory transfer claim, as well as the
retaliatory transfer claim in Count Two failed to raise genuinely
disputed issues of fact sufficient to withstand summary judgment.
With regard to the Petition Clause claim in Count Three, the motion
judge granted the motion because Bloom failed to offer any
opposition to the motion.3
I.
We recite the facts found in the summary judgment record,
which we view in a light most favorable to plaintiff. Robinson
v. Vivirito, 217 N.J. 199, 203 (2014); Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995). Bloom graduated from the
115th class of the State Police Academy. He served in the
2
Bloom failed to address Count Four of the complaint in the summary
judgment motion and has not briefed this count in his appeal. We
therefore consider the claim asserted in this count as abandoned.
See McGarry v. Saint Anthony of Padua Roman Catholic Church, 307
N.J. Super. 525, 531, 537 (App. Div. 1998) (deeming particular
count of complaint not briefed on appeal as abandoned).
3
Although the judge's oral decision makes no reference to Count
Four, the order granting summary judgment dismissed the complaint,
with prejudice, in its entirety.
3 A-0110-15T1
Ballistics Unit (BU) from June 2005 until his reassignment to the
Firearms Investigation Unit (FIU). He also served an eight-month
detachment to the Business Integrity Unity (BIU) in 2012.
The facts giving rise to the complaint first unfolded on
September 5, 2007. On that date, Cowden presented plaintiff with
a ballistics report, which he wanted Bloom to "peer review,"
meaning, to verify Cowden's findings. Bloom had not worked on the
particular examination, but was aware that at least one other co-
worker had reviewed Cowden's findings and disagreed with the
conclusions Cowden reached. Bloom did not feel comfortable signing
off on the report and refused to peer-review it. Although Bloom
did not believe Cowden's actions violated any particular law or
standard operating procedure, he considered Cowden's actions to
be "an ethical violation." He also believed Cowden's actions
amounted to falsification of evidence. He reported the incident
to a superior, Lieutenant James Storey, but he did not file a
report.
Shortly thereafter, following several confrontations with
other members of the BU, Cowden was transferred to another unit,
but returned in 2010 as its assistant head under Ryan, who headed
the BU. Upon Cowden's return, he started to verbally harass and
subject Bloom to a hostile working environment. Specific incidents
of harassment Bloom alleged occurred throughout the first part of
4 A-0110-15T1
2010 included Ryan ordering him to speak to a BU employee about
the use of sick time and overtime; Ryan changing his work schedule,
despite the fact the schedule had been approved one year earlier;
no longer serving as a lecturer and instructor on behalf of the
Division; and, having to turn over his newer vehicle to Cowden.
In addition, when Bloom turned over the vehicle, Cowden verbally
attacked him for failing to report a scratch on the vehicle,
leaving a window partially opened, and having the gas card in his
pocket.
In June 2011, Bloom took administrative leave, which he
alleged was caused by the harassing and hostile work environment
engineered by Cowden and Ryan. Upon his return in April 2011,
Cradock transferred him from the BU to the FIU.
On June 6, 2012, Bloom reported to his superiors that the
Division was violating federal statutes because it was not
registering all machine guns and other destructive devices with
the federal government. On June 30, 2012, he was transferred from
the FIU to the BIU, where he remained for eight months before
returning to the FIU at his request.
On March 2, 2012, Bloom filed a one-count complaint alleging
that he had been subjected to a pattern of harassment and
retaliation after reporting that Cowden attempted to fabricate
evidence (Count One). Bloom filed an amended complaint adding a
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second count, in which he alleged that he was transferred from FIU
in June 2012, without notice and without cause, in retaliation for
his complaint that the Division was violating federal law (Count
Two). Finally, in a second amended complaint, Bloom added two
more counts, one alleging that defendants violated his right of
petition guaranteed under the Petition Clause (Count Three) and
another alleging that there had been "a systematic endeavor by the
[Division] to cover up the actions of Defendant Cowden" (Count
Four).
Upon completion of discovery, defendants moved for summary
judgment. Defendants argued that all but one of the retaliatory
acts alleged in Count One were barred by the statute of
limitations. On the merits, with regard to the remaining claims,
defendants urged that plaintiff failed to establish a prima facie
case of retaliation under CEPA or violation of the Petition
Clause.
Addressing Count One, the court granted the motion finding
that, other than the retaliatory transfer, the claims set forth
in this count were barred by the statute of limitations. The
court also found that even if the claims were not statutorily
barred, the purported retaliatory pre-transfer actions about which
Bloom complained, "cumulatively or otherwise," had not impacted
the terms and conditions of his employment. Turning to Bloom's
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transfer from the BU to the FIU in 2011, the court found that
there was a disputed fact as to whether the transfer rose to the
level of an adverse employment action, but concluded summary
judgment was nonetheless appropriate because Bloom failed to
establish a causal connection between his objection to peer-
reviewing Cowden's ballistics report and his transfer from the BU
to the FIU in 2011.
The court next focused upon the 2012 action resulting in
Bloom's transfer from the FIU to the BIU, after he reported the
Division was violating federal law in connection with its firearms
registration requirements. The court found that while there was
a factual dispute as to whether the transfer constituted an adverse
employment action, it could not find a causal connection between
Bloom's complaint and the transfer. The court reasoned that
"giving all inferences for the plaintiff once again," the
articulated reasons for the transfer were "unassailable" and there
was nothing in the record other than Bloom's "own unsupported
allegations with respect to the reasons for the transfer."
Finally, the court addressed the Petition Clause allegation
contained in the third count. The court noted "there was really
no opposition to the [P]etition[] [C]lause."
7 A-0110-15T1
II.
Appellate courts review orders granting summary judgment de
novo, employing the same standard utilized by trial courts. Qian
v. Toll Bros., Inc., 223 N.J. 124, 134-35 (2015). Summary judgment
is granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no 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). An issue
of fact is only genuine "if, considering the burden of persuasion
at trial, the evidence submitted by the parties on the motion,
together with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the issue to the
trier of fact." Ibid. Further, appellate courts review questions
of law de novo and the legal determinations of the trial court are
not entitled to any special deference. Gere v. Louis, 209 N.J.
486, 499 (2012); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
CEPA was enacted to eliminate "vindictive employment
practices[.]" Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J.
405, 418 (1994). CEPA has been construed to place the onus of
compliance upon employers because they "are best situated to avoid
or eliminate impermissible vindictive employment practices, to
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implement corrective measures, and to adopt and enforce employment
policies that will serve to achieve the salutary purposes of
[CEPA]." Ibid.CEPA prohibits employers from taking "any retaliatory action"
against an employee who:
a. Discloses, or threatens to disclose to a
supervisor or to a public body an activity,
policy or practice of the employer, or another
employer, with whom there is a business
relationship, that the employee reasonably
believes:
(1) is in violation of a law, or a rule
or regulation promulgated pursuant to law
. . . ; or
(2) is fraudulent or criminal . . . ;
b. Provides information to, or testifies
before, any public body conducting an
investigation, hearing or inquiry into any
violation of law, or a rule or regulation
promulgated pursuant to law by the employer
. . . ; or
c. Objects to, or refuses to participate in
any activity, policy or practice which the
employee reasonably believes:
(1) is in violation of a law, or a rule
or regulation promulgated pursuant to law
. . . ;
(2) is fraudulent or criminal . . . ; or
(3) is incompatible with a clear mandate
of public policy concerning the public
health, safety or welfare or protection
of the environment.
9 A-0110-15T1
[N.J.S.A. 34:19-3.]4
CEPA defines retaliation as "the discharge, suspension or
demotion of an employee, or other adverse employment action taken
against an employee in the terms and conditions of employment."
N.J.S.A. 34:19-2(e). However, as our Supreme Court clarified,
"the universe of possible retaliatory actions under CEPA is greater
than discharge, suspension, and demotion," as evidenced by the
statute's express inclusion of "other adverse employment action
taken against an employee in the terms and conditions of
employment." Donelson v. Dupont Chambers Works, 206 N.J. 243, 257
(2011) (quoting N.J.S.A. 34:19-2(e)).
An act of retaliation also need not be a single discrete
event. Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448
(2003). Instead, an employee may point to "many separate but
relatively minor instances of behavior directed against an
employee that may not be actionable individually but that combine
to make up a pattern of retaliatory conduct." Ibid. Accord
Beasley v. Passaic Cty., 377 N.J. Super. 585, 608-09 (App. Div.
2005). Ultimately, the question of whether an employer's action
constitutes retaliation "must be viewed in light of the broad
4
Bloom cites to only N.J.S.A. 34:19-3(c).
10 A-0110-15T1
remedial purpose of CEPA . . . ." Donelson, supra, 206 N.J. at
257.
To establish a prima facie claim under CEPA, a plaintiff must
prove each of the following:
(1) he or she reasonably believed that his or
her employer's conduct was violating either a
law, rule, or regulation promulgated pursuant
to law, or a clear mandate of public policy;
(2) he or she performed a "whistle-blowing"
activity described in N.J.S.A. 34:19-3(c);
(3) an adverse employment action was taken
against him or her; and
(4) a causal connection exists between the
whistle-blowing activity and the adverse
employment action.
[Lippman v. Ethicon, Inc., 222 N.J. 362, 380
(2015) (citing Dzwonar v. McDevitt, 177 N.J.
451, 462 (2003)).]
If a plaintiff makes this threshold showing, the burden shifts
to the defendant to set forth a legitimate non-retaliatory reason
for the adverse action. Klein v. Univ. of Med. & Dentistry of
N.J., 377 N.J. Super. 28, 38 (App. Div.), certif. denied, 185 N.J.
39 (2005). "If such reasons are proffered, plaintiff must then
raise a genuine issue of material fact that the employer's
proffered explanation is pretextual." Id. at 39 (citing Bowles
v. City of Camden, 993 F. Supp. 255, 262 (D.N.J. 1998), Kolb v.
Burns, 320 N.J. Super. 467, 479 (App. Div. 1999)).
11 A-0110-15T1
The statute of limitations for filing a CEPA action is one
year. N.J.S.A. 34:19-5. An employee's CEPA claim accrues on the
date the adverse action occurs. Villalobos v. Fava, 342 N.J.
Super. 38, 50 (App. Div.), certif. denied, 170 N.J. 210 (2001).
"A plaintiff need not know with certainty that there is a factual
basis for a claim under CEPA for the one year limitation period
to be triggered; it is sufficient that he should have discovered
that he may have a basis for a claim." Id. at 49 (emphasis
omitted).
In Villalobos, the plaintiff was twice transferred "for the
good of the . . . [o]ffice" and resigned. Id. at 42-43. The
plaintiff later received information that the transfers were an
attempt to force his resignation and sued for constructive
discharge. Id. at 43-44. On appeal, we held that the plaintiff's
claim was barred by the statute of limitations, which started to
run on the date of his resignation and that he should have
discovered his CEPA claim before he received the additional
information regarding his transfers. Id. at 49-50.
We now apply these principles to the facts of this case. We
first address the dismissal of Bloom's pre-transfer claims as
time-barred. Bloom alleges that when he refused to peer review
Cowden's ballistics report in 2007, he was later subjected to a
12 A-0110-15T1
harassing and hostile work environment, after Cowden returned to
the BIU in 2010.
We assume, for purposes of viewing the evidence most favorably
towards Bloom, that Cowden harbored a retaliatory animus towards
him, which Cowden continued to hold upon his return to the BU in
2010, as its assistant head. We further assume that upon Cowden's
return, he and Ryan put into motion the harassing and retaliatory
actions about which Bloom complains led to his leave of absence
in June 2010.
The retaliatory acts he identified as occurring between
January 2010 and June 2010, all occurred nearly two years before
Bloom filed his complaint and are thus time barred. N.J.S.A.
34:19-5. Because those actions are time barred it is unnecessary
to address whether any of the acts are deemed retaliatory within
the meaning of CEPA. Falco v. Cmty. Med. Ctr., 296 N.J. Super.
298, 317-18 (App. Div. 1997) (declining to engage in "any
additional evaluation of [the] plaintiff's CEPA claim" because
"the motion judge correctly determined that [the] plaintiff was
not a whistleblower under CEPA"), certif. denied, 153 N.J. 405(1998).
We turn now to Bloom's transfer in 2011. The motion judge
found that the claim was timely filed, there were genuinely
disputed issues of fact as to whether Bloom engaged in
13 A-0110-15T1
whistleblowing activity and also that it was genuinely disputed
whether his transfer from the BU to the FIU was an adverse
employment action. The motion judge nonetheless concluded summary
judgment was warranted because there was no evidence in the record
establishing a causal connection between the 2007 incident and
Bloom's transfer in 2011, and because the reasons given for Bloom's
transfer were "unassailable."
The requirement that an employee who brings a CEPA action
must show a causal connection between his or her protected activity
and the alleged adverse employment action "can be satisfied by
inferences that the trier of fact may reasonably draw based on
circumstances surrounding the employment...action[.]" Maimone v.
Atlantic City, 188 N.J. 221, 237 (2006). The temporal proximity
between protected conduct and an adverse employment action "is one
circumstance that may support an inference of a causal connection."
Ibid. Here, temporally, Bloom's first transfer occurred more than
three years after the 2007 incident with Cowden. Hence, there is
no temporal proximity from which to draw an inference of
retaliation. Ibid.We note that although temporal proximity to an adverse
employment action is only one circumstance from which an inference
of retaliatory action under CEPA may be established, ibid., it "is
[not] the only circumstance that justifies an inference of causal
14 A-0110-15T1
connection." Romano v. Brown & Williamson Tobacco Corp., 284 N.J.
Super. 543, 550 (App. Div. 1995). The record here, however, is
devoid of any facts from which a trier of fact could reasonably
conclude that there was a causal connection between the 2007
incident and Bloom's transfer in 2011.
Defendants put forth their articulated reasons for Bloom's
reassignment. The record revealed that prior to his actual return
to work in April 2011, Bloom met with Cradock, where he expressed
that he wanted Cowden removed because Cowden "had been involved
in numerous confrontations with other individuals, including
[himself]" and believed "that it would be a natural progression
for [Cowden] to be removed and not [him]." He made clear to
Cradock and others that he did not want to return to the BU as
long as Cowden was there.
Cradock, in his deposition, testified that internal
investigations failed to disclose any wrongdoing on the part of
Cowden. He explained the investigation revealed that Cowden's
management style was decidedly different than his predecessor.
Cradock testified that Cowden's style of supervision held
"everybody to task." He characterized the BU environment before
Cowden's return as "relaxed and laissez faire." He was aware that
Bloom could not work with Cowden, and made the decision that
Bloom's return to the BU was not an option at that time and that
15 A-0110-15T1
he was not going to remove Cowden from BU based solely upon Bloom's
accusations. He told Bloom that if the investigation revealed
wrongdoing on Cowden's part, he would take appropriate action at
that time. He offered Bloom five choices for assignment, but
Bloom told him that he would rather remain out on administrative
leave.
Thus, while the unworkable relationship between Cowden and
Bloom was the reason Cradock told Bloom returning to the BU was
not an option at that time, there was no evidence in the record
that Cradock's decision was tied to the 2007 incident. The fact
that Cowden was essentially still inextricably linked to Bloom,
insofar as Bloom's desire to remain in the BU was concerned, does
not raise an inference that the transfer was effectuated because
of the 2007 incident.
Moreover, even if the intervening instances of harassment to
which Bloom claims he was subjected when Cowden returned to the
BU in 2010 are viewed as evidential, these incidents do not raise
a disputed issue of fact that the stated reason for his 2011
transfer was false. For example, Ryan directed him to speak to
an employee about the use of sick time. Bloom served as this
employee's training officer. There is nothing to suggest that it
was inappropriate for him to speak to the employee about sick time
or, that there was no real issue about the employee's use of sick
16 A-0110-15T1
time and directing Bloom to speak to her was merely a pretext to
retaliate against Bloom for the 2007 incident.
Similarly, while it is undisputed that Ryan changed his work
schedule because he believed Bloom had unilaterally set the hours,
it is also undisputed that Ryan reinstated Bloom's schedule after
learning the schedule had been approved by a captain. Further,
although Bloom complained about inappropriate language directed
at him within the workplace, he himself acknowledged that he too
used inappropriate language in the workplace, admittedly referring
to himself as "a pussy." Additionally, at the time Bloom was
asked to turn over his newer vehicle to Cowden, who was his
superior, Bloom was going on administrative leave. He was also
provided another vehicle.
Finally, in addition to Bloom making it clear that he did not
want to return to the BU as long as Cowden remained assigned to
the unit and Cradock's management decision not to remove Cowden
in the absence of evidence of misconduct, both the Division's
physician and Bloom's therapist recommended that Bloom not be
assigned to the same unit as Cowden because of the personality
conflicts between the two men. There is no evidence in the record
that Cradock's assignment decision or the recommendations of the
Division's physician and Bloom's therapist were in any way linked
to Bloom's 2007 refusal to peer review Cowden's report.
17 A-0110-15T1
Thus, Defendants articulated a legitimate non-retaliatory
reason for Bloom's transfer, namely, the personality conflicts
between Cowden and Bloom and the internal investigation disclosed
no evidence of wrongdoing on the part of Cowden. Therefore, any
presumption of a retaliatory transfer disappeared, with the burden
shifting back to Bloom, to present evidence raising a genuinely
disputed issue of fact that the articulated reasons for the
transfer were false and the real reason was retaliation because
he refused to peer review Cowden's report in 2007. Bloom presented
no evidence in this regard.
In short, there were no genuinely disputed issues of fact
establishing a causal connection between the 2007 incident and
Bloom's 2011 transfer, and, as the motion judge observed,
defendants' articulated reasons for Bloom's transfer were
"unassailable." Thus, the motion judge properly granted summary
judgment dismissing Count One on the merits in its entirety.
We turn to Bloom's June 6, 2012 report that the Division was
violating federal statutes by not registering all machine guns and
other destructive devices. Bloom contends, within weeks of
reporting this violation to his superior, that he was transferred
out of the FIU and into the BIU. According to Bloom, this transfer
occurred without notice or cause despite the fact that there were
members of his unit who had submitted papers seeking a transfer
18 A-0110-15T1
out of the FIU. Bloom characterized the reassignment as a "lateral
move," and one that did not promote career advancement.
Assuming that the true reason for the transfer was in
retaliation for his reporting violations of federal law, this
retaliatory action does not, as a matter of law, constitute an
adverse employment action. It is undisputed that the transfer was
not a demotion, a loss in status, a reduction in pay, any
diminution in job responsibilities, or an assignment to perform
menial tasks. See Mancini v. Township of Teaneck, 349 N.J. Super.
527, 564 (App. Div.), remanded, 174 N.J. 359, reaff'd, 354 N.J.
Super. 282 (App. Div. 2002).
In addition, Bloom does not dispute that transfers within the
Division are discretionary and may occur with or without notice
and may also be accomplished irrespective of any request for a
transfer. Further, Bloom acknowledged that when transferred to
the BIU, he was given the title of "squad leader" and supervisory
responsibilities over fourteen civilian personnel. In contrast,
while assigned to the FIU, Bloom had supervisory responsibility
for two employees and no title as "squad leader."
Consequently, the facts viewed most favorably toward Bloom
do not raise a genuinely disputed issue of fact that his transfer
from the FIU to the BIU in June 2012 was an adverse employment
action under CEPA. Merely because he disagreed or objected to the
19 A-0110-15T1
Division's decision to transfer him and believed his skills were
better suited in the FIU or even the BU does not translate into
an adverse employment action. Ibid. (holding that an adverse
employment action does not occur simply because an employee is
unhappy). Consequently, the second count of Bloom's complaint was
properly dismissed.
III.
Finally, Bloom contends that the motion judge erred in
dismissing the Petition Clause claim set forth in Count Three.
Bloom argues this claim was a matter for the jury, specifically
noting that he had filed an Equal Employment Opportunity grievance.
Bloom urges that there are sufficient facts to infer that
defendants targeted him for an internal investigation after He
initiated the underlying civil lawsuit.
Notably, Bloom offered no opposition before the motion court
below to defeat defendants' summary motion relative to the Petition
Clause claim. Ordinarily, absent extraordinary circumstances, we
will not entertain an argument presented for the first time on
appeal that was not presented to the trial court. 809-811
Washington St. Assocs. v. Grego, 253 N.J. Super. 34, 50 (App. Div.
1992). Bloom has not presented any extraordinary circumstances
in his appellate brief that would lead us to depart from this
general rule of appellate review. See ibid.20 A-0110-15T1
Moreover, any consideration of the Petition Clause claim
would not, based upon the record, be based upon any competent
evidence Bloom submitted to defeat the motion as to that claim.
Paragraph 239 through paragraph 258 of defendants' "Statement of
Undisputed Material Facts," filed in support of their summary
judgment motion, addresses the Petition Clause claim. Bloom's
expressed opposition to these paragraphs in his "Response to
Defendant[s'] Statement of Material Facts," is limited to: "leaves
Defendants to their proofs"; "admits that the testimony was given";
or "denie[s]" the proffered undisputed fact. Further, in his
"Statement of Undisputed Material Facts," Bloom puts forth no
facts regarding the Petition Clause claim.
Rule 4:46-5(a) provides, in pertinent part, that "[w]hen a
motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations
or denials of the pleading[.]" In other words, Bloom's mere
denials or statement that he leaves defendants' to their proofs
will not defeat the motion. G.D. v. Kenny, 205 N.J. 275, 304
(2011) (quoting Rule 4:46-5(a)). Thus, granting summary judgment
on this claim and dismissing Count Three was proper.
21 A-0110-15T1
Affirmed.
22 A-0110-15T1