ORNELLA RODOLICO VS. TOTOWA BOARD OF EDUCATION,WASHINGTON PARK SCHOOL(L-542-14, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4140-15T1
ORNELLA RODOLICO and
PASQUALE RODOLICO, her
husband,
Plaintiffs-Appellants,
v.
TOTOWA BOARD OF EDUCATION,
WASHINGTON PARK SCHOOL,
BOROUGH OF TOTOWA and STATE OF
NEW JERSEY,
Defendants-Respondents.
_________________________________
Submitted August 22, 2017 – Decided August 31, 2017
Before Judges Manahan and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
542-14.
Frederic J. Rossi, attorney for appellants.
Wolff, Helies, Duggan, Spaeth & Lucas, PA,
attorneys for respondents (Peter H. Spaeth,
on the brief).
PER CURIAM
In this Title 59 action, plaintiffs Ornella and Pasquale
Rodolico (collectively plaintiffs) appeal from an order of summary
judgement in favor of defendants Totowa Board of Education (BOE)
and Washington Park School (Washington Park) (collectively
defendants).1 Having reviewed the arguments in light of the record
and applicable law, we affirm.2
We derive the following facts from the discovery record in
the light most favorable to plaintiffs. Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995). On February 21, 2012,
Ornella sustained injuries to her shoulder when she tripped and
fell on raised floor tiles in the lobby entrance of Washington
Park after picking up her son from the nurse's office. Ornella
was transported to Saint Joseph's Hospital where she was diagnosed
with and treated for a dislocated shoulder, and then released.
The next day, Ornella was examined by an orthopedist. Ornella
subsequently underwent surgery.
Following surgery, Ornella completed two rounds of physical
therapy. One commenced in June 2012, and continued through the
end of that calendar year. The second commenced in late 2014, and
1
We utilize Ornella's first name for ease of reference. In doing
so, we intend no disrespect.
2
Plaintiffs' case information statement notes that summary
judgment in favor of the State was entered on August 28, 2014, and
a consent order of dismissal was entered as to the Borough of
Totowa on December 9, 2015. Plaintiffs have not appealed either
order.
2 A-4140-15T1
continued until February 2015. By letter dated June 11, 2015,
plaintiffs' expert, Bryan Massoud, M.D., opined that Ornella's
injuries were permanent and were the cause of her decreased
functional abilities.
During her deposition, Ornella testified that she was
employed full time, worked forty hours, five days a week, and
completed chores in her home including: cooking, laundry, and
making the bed, although with some discomfort. She acknowledged
that she did grocery shopping, and had taken several vacations
subsequent to her fall to the Bahamas, the Dominican Republic,
Wildwood and Disney World.
Ornella further testified that she has surgical scarring and
suffered persistent "dull, throbbing pain" that runs from her
right shoulder down her arm. Concerning physical limitations
resulting from her injury, Ornella testified that she is unable
to lift her arm, she is unable to put her arm behind her back, she
is unable to pull or push anything with her right arm, she has
lost strength in her arm, and she is unable to hold a purse with
that arm. Ornella also testified that she was prescribed an anti-
inflammatory cream that she applies once or twice a week along
with taking Motrin.
Regarding the accident's occurrence, Ornella stated that she
went to the school from work and was wearing pump shoes with a
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heel approximately one-and-three-quarters to two-inches high.
Ornella also stated that she was walking at a normal rate of speed
and had no difficulty walking prior to the fall. Ornella noted
that she was looking straight ahead when she felt her left foot
adhere to something which she later attributed to elevated floor
tiles. Although Ornella previously walked through the school on
several occasions, she could not recall whether, on those
occasions, she had walked over the location where the incident
occurred.
Peter Campilango, the Building and Grounds Supervisor for the
BOE, was deposed as to his knowledge of the maintenance and repairs
in the school district. Campilango testified he and the
maintenance crew would inspect the floors at least weekly to ensure
cleanliness and safe conditions. Campilango stated that although
he never observed any raised tiles, the maintenance department
replaces tiles and re-grouts when necessary. Further, Campilango
testified that missing grout or a disparity in tile elevation
could result in a fall and he acknowledged that women would come
to the school wearing shoes similar to that worn by Ornella.
Beverly Luciano, the school nurse, was deposed. At the time
of her deposition, Luciano had been employed by the BOE for
approximately twelve years. On the day of the incident, Ornella
went to Luciano's office and advised her she had fallen. Luciano
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filled out an accident report. Luciano testified that she walked
over the area of the accident for several years and never observed
any raised tiles or unsmooth areas.
In discovery, plaintiffs produced the expert report of
Michael Natoli, a consulting engineer.3 In reaching his opinion,
Natoli relied upon photographs of the area taken by Ornella days
after the accident, photographs of the shoes worn by Ornella on
the day of her fall, his knowledge of the safety code, various
depositions, and other related information. Natoli concluded
that, "the prior unmarked tile trip hazard present within the
hallway walking surface created extremely hazardous conditions for
pedestrians." He also concluded that the "[half-inch] vertical
tile edge" was the cause of Ornella's injury. Natoli reported
that the zone where Ornella fell violated numerous safety codes
and that a disparity suggestive of a repair was present at the
location of the fall.
At the conclusion of discovery, defendants filed a motion for
summary judgment, which plaintiffs' opposed. Following oral
argument, the judge, in an opinion from the bench, granted
defendants' motion. The judge, citing N.J.S.A. 59:4-2, held there
3
Defendants' brief posits the judge ruled that Natoli's expert
report constituted a net opinion. However, as plaintiffs noted
in their reply brief and the record reflects, the judge did not
make this ruling.
5 A-4140-15T1
was no evidence in the record that demonstrated actual or
constructive notice to defendants of a dangerous condition, or
that any action or inaction on their part was palpably
unreasonable. The judge found there had been no complaints
regarding the floor prior to Ornella's fall and, even given the
alleged height difference in the floor, the condition did not pose
a substantial risk of injury.
The judge identified plaintiffs' burden under N.J.S.A. 59:9-
2(d), the statute limiting awards for pain and suffering to cases
involving objective proof of a permanent loss of a bodily function
that is substantial. Applying the proofs adduced in discovery,
the judge held there was "no factual basis for a fact[-]finder to
conclude that any alleged injury resulted in a substantial loss
of bodily function." Relative to Ornella's injury, the judge
found that although she had undergone surgery on her right shoulder
and underwent physical therapy, she had no medical treatment since
her discharge in March 2016.
An order memorializing the judge's oral decision was entered.
This appeal followed.
Plaintiffs raise the following arguments on appeal:
POINT I
THE TRIAL COURT ERRED IN FINDING THAT THERE
WERE NO ISSUES OF MATERIAL FACT.
6 A-4140-15T1
[A.] The Case Law, Including The
Unpublished Opinion On Which The
Court Primarily Relied, Was
Misapplied To These Facts.
POINT II
THE TRIAL COURT ERRED IN FINDING [THERE] DID
NOT EXIST A DANGEROUS CONDITION OF PUBLIC
PROPERTY.
A. The Court Did Not Properly
Consider And Apply The Uniform
Construction Code To The Facts
Presented.
B. There Is Sufficient Evidence
That Actual Or Constructive Notice
Of The Dangerous Condition Existed
Here And That It Was Palpably
Unreasonable To Not Take Remedial
Actions Prior To [Ornella's] Fall.
POINT III
THE TRIAL COURT ERRED IN FINDING THAT
[ORNELLA'S] INJURY DID NOT MEET THE THRESHOLD
OF N.J.S.A. 39:2-9.2(B).4
Plaintiffs further raise the following arguments on appeal
in their reply brief; two of which are repetitive and one which
we addressed above in a footnote.
4
This appeal involves application of the New Jersey Tort Claims
Act (TCA), N.J.S.A. 59:1-1 to 12-3. Plaintiffs incorrectly cite
to N.J.S.A. 39:2-9.2(b), which relates to reemployment rights of
certain Civil Service employees and commissioners of the
Department of Motor Vehicles. N.J.S.A. 59:9-2(d) is the correct
citation for the TCA "verbal threshold."
7 A-4140-15T1
POINT I
THE TRIAL JUDGE DID NOT DETERMINE THAT THE
EXPERT REPORT OF MICHAEL G. NATOLI, P.E.[,]
WAS A NET OPINION.
POINT II
THE TRIAL COURT ERRED IN DETERMINING THAT
[ORNELLA] DID NOT MEET THE STATUTORY
REQUIREMENTS OF N.J.S.A. 59:4-2, ET SEQ.
POINT III
THE TRIAL COURT ERRED IN FINDING THAT
[ORNELLA'S] INJURY DID NOT MEET THE THRESHOLD
OF N.J.S.A. 39:2-9.2(B).5
I.
We review de novo the trial court's grant of summary judgment,
applying the same standard as the trial court. Henry v. N.J.
Dep't of Human Servs., 204 N.J. 320, 330 (2010). Summary judgment
is proper if the record evidence shows "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;
see also Brill, supra, 142 N.J. at 540. All facts must be viewed
in a light most favorable to the non-moving party, "keeping in
mind '[a]n issue of fact is genuine only if, considering the burden
of persuasion at trial, the evidence submitted by the parties on
the motion . . . would require submission of the issue to the
5
Again, the citation should be N.J.S.A. 59:9-2(d).
8 A-4140-15T1
trier of fact.'" Schiavo v. Marina Dist. Dev. Co., 442 N.J. Super.
346, 366 (App. Div. 2015) (alteration in original) (quoting R.
4:46-2(c)), certif. denied, 224 N.J. 124 (2016). Furthermore,
whether a party is entitled to TCA immunity is a question of law,
Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008),
which we review de novo.
Public entity liability in New Jersey under the TCA is
limited. Polzo v. County of Essex, 209 N.J. 51, 55 (2012) (Polzo
II). In the TCA, the Legislature expressed the balance of
interests between injured parties and governmental entities.
N.J.S.A. 59:1-2. It declared that the public policy of this State
would require public entities to be liable for their negligence
only "within the limitations of this act and in accordance with
the fair and uniform principles established herein." Ibid.
Generally, a public entity is "immune from tort liability
unless there is a specific statutory provision imposing
liability." Kahrar v. Borough of Wallington, 171 N.J. 3, 10
(2002). Even if liability exists, "[c]ourts must 'recognize[] the
precedence of specific immunity provisions,' and ensure 'the
liability provisions of the Act will not take precedence over
specifically granted immunities.'" Parsons v. Mullica Twp. Bd.
of Educ., 440 N.J. Super. 79, 95 (App. Div. 2015) (second
9 A-4140-15T1
alteration in original) (quoting Weiss v. N.J. Transit, 128 N.J.
376, 380 (1992)), aff'd, 226 N.J. 297 (2016).
II.
We first address the parties' arguments relative to
liability. Plaintiffs argue that defendants had actual or
constructive notice of a dangerous condition (the raised tiles),
and that defendants' failure to identify and remediate the
condition was palpably unreasonable. In response, defendants
argue that there is no evidence of a "dangerous condition" and
that, even if such a condition existed, there is no evidence they
had actual or constructive notice. Further, defendants argue that
there is no evidence of palpably unreasonable conduct on their
part.
A public entity may be liable if "a negligent or wrongful act
or omission" of its employee "create[s] [a] dangerous condition"
or, if it had "actual or constructive notice of the dangerous
condition . . . a sufficient time prior to the injury to have
taken measures to protect against the dangerous condition."
N.J.S.A. 59:4-2(a) and (b). As the Court has repeatedly stated,
[I]n order to impose liability on a public
entity pursuant to [N.J.S.A. 59:4-2], a
plaintiff must establish the existence of a
"dangerous condition," that the condition
proximately caused the injury, that it
"created a reasonably foreseeable risk of the
kind of injury which was incurred," that
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either the dangerous condition was caused by
a negligent employee or the entity knew about
the condition, and that the entity's conduct
was "palpably unreasonable."
[Vincitore v. N.J. Sports & Exposition Auth.,
169 N.J. 119, 125 (2001) (quoting N.J.S.A.
59:4-2).]
"Th[e]se requirements are accretive; if one or more of the elements
is not satisfied, a plaintiff's claim against a public entity
alleging that such entity is liable due to the condition of public
property must fail." Polzo v. County of Essex, 196 N.J. 569, 585
(2008) (Polzo I).
A dangerous condition "means a condition of property that
creates a substantial risk of injury when such property is used
with due care in a manner in which it is reasonably foreseeable
that it will be used." N.J.S.A. 59:4-1(a). Even if the public
entity did not create the dangerous condition, it may remain
accountable under the TCA if the entity had actual or constructive
notice of the dangerous condition and its failure to protect
against the danger is determined to be palpably unreasonable.
Polzo II, supra, 209 N.J. at 67. Conversely, liability will not
be imposed "upon a public entity for a dangerous condition of its
public property if the action the entity took to protect against
the condition or the failure to take such action was not palpably
unreasonable." N.J.S.A. 59:4-2.
11 A-4140-15T1
"Palpably unreasonable" conduct contemplates more than mere
negligence. Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005).
Rather, the concept "imposes a steep burden on a plaintiff," and
"implies behavior that is patently unacceptable under any given
circumstances[,]" as well as behavior from which "it must be
manifest and obvious that no prudent person would approve of its
course of action or inaction." Ibid. (quoting Kolitch v.
Lindedahl, 100 N.J. 485, 493 (1985)).
Whether a property is in a "dangerous condition" is generally
a question for the finder of fact. Vincitore, supra, 169 N.J. at
123 (citing Roe v. N.J. Transit Rail Operations, Inc., 317 N.J.
Super. 72, 77-78 (App. Div. 1998), certif. denied, 160 N.J. 89
(1999); Daniel v. State, Dep't of Transp., 239 N.J. Super. 563,
573 (App. Div.), certif. denied, 122 N.J. 325 (1990)).
Nonetheless, "like any other fact question before a jury, [that
determination] is subject to the court's assessment whether it can
reasonably be made under the evidence presented" by the plaintiff
that the property was in a dangerous condition. Vincitore, supra,
169 N.J. at 124 (alteration in original) (citation omitted).
In Atalese v. Long Beach Township, 365 N.J. Super. 1, 6 (App.
Div. 2003), a three-quarter inch pavement differential in a bike
lane spanning an entire block was found to be a dangerous condition
where a plaintiff fell during a power walk. This court took into
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consideration the anticipated uses of the property and held that
it was foreseeable that pedestrians would use the bike lane to
walk, run, bike, etc. and, thus, the height differential
constituted a substantial risk of injury. Ibid.
Providing all favorable inferences to plaintiffs that they
established a prima facie showing that the floor's condition was
"dangerous," they still must satisfy the statute's notice
requirement. As well, they must satisfy the requirement that,
upon notice of a dangerous condition, defendants' failure to
protect Ornella was palpably unreasonable.
N.J.S.A. 59:4-3 provides:
a. A public entity shall be deemed to have
actual notice of a dangerous condition . . .
if it had actual knowledge of the existence
of the condition and knew or should have known
of its dangerous character.
b. A public entity shall be deemed to have
constructive notice of a dangerous condition
. . . only if the plaintiff establishes that
the condition had existed for such a period
of time and was of such an obvious nature that
the public entity, in the exercise of due
care, should have discovered the condition and
its dangerous character.
However, "the mere '[e]xistence of an alleged dangerous condition
is not constructive notice of it.'" Polzo I, supra, 196 N.J. at
581 (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law
Div. 1990)). It follows that absent actual or constructive notice,
13 A-4140-15T1
the public entity cannot have acted in a palpably unreasonable
manner. Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-
51 (App. Div. 2002).
In Gaskill v. Active Environmental Technologies, Inc., 360
N.J. Super. 530, 533 (App. Div. 2003), the plaintiff tripped on a
one-inch elevated tree grate while walking on a sidewalk. Summary
judgment was granted for the defendant township where no evidence
that the township had actual or constructive notice of the raised
grate was in the record. Id. at 537. This court found that the
plaintiff "failed to establish a prima facie case that the inaction
by the township in repairing the grate, removing the tree or taking
other steps to rectify the allegedly dangerous condition prior to
the incident was palpably unreasonable." Ibid.
Similarly, in Maslo, supra, 346 N.J. Super. at 350-51, we
affirmed the grant of summary judgment noting that absent actual
or constructive notice, the conduct of the public entity could not
be found to be palpably unreasonable. We found there was no
factual issue as to constructive notice despite the plaintiff's
expert's opinion that the "observable difference in the height of
two sections of the sidewalk . . . would have been noticeable for
a year or more" given no proof was submitted to any city agency.
Id. at 349. Moreover, this court noted even the plaintiff, "a
14 A-4140-15T1
resident of the neighborhood, said she was unaware of the condition
of the sidewalk." Ibid.
As in Gaskill and Maslo, the discovery record here is devoid
of any evidence that the maintenance department or any employees
had notice, whether in the form of complaints of the alleged
dangerous condition or records of prior accidents occurring at the
site. As such, plaintiffs have not met their burden that
defendants' failure to discover and remediate the condition was
palpably unreasonable.
III.
Despite our determination that plaintiffs failed to establish
defendants' liability, in the event of further review, we address
plaintiffs' argument that the injury Ornella suffered constituted
a permanent loss of bodily function. As evidence of the
permanency, Ornella references the surgeries, her limited range
of motion, her difficulty in performing household chores, her
physical therapy, her need for prescription anti-inflammatory
cream, and Massoud's report.
N.J.S.A. 59:9-2(d), commonly referred to as the "verbal
threshold" of the TCA, provides:
No damages shall be awarded against a public
entity or public employee for pain and
suffering resulting from any injury; provided,
however, that this limitation on the recovery
of damages for pain and suffering shall not
15 A-4140-15T1
apply in cases of permanent loss of a bodily
function, permanent disfigurement or
dismemberment where the medical treatment
expenses are in excess of [$3600].
[N.J.S.A. 59:9-2(d).]
The verbal threshold is not a grant of immunity; it is a
limitation on recoverable damages when the public employee or
entity is not immune. See Gilhooley v. Cty. of Union, 164 N.J.
533, 538 (2000) ("Even where liability is present, the [TCA] sets
forth limitations on recovery. One is the limitation on the
recovery of pain and suffering damages [in N.J.S.A. 59:9-2(d)].").
To vault the threshold, a plaintiff "must show '(1) an objective
permanent injury, and (2) a permanent loss of a bodily function
that is substantial.'" Knowles v. Mantua Twp. Soccer Ass'n, 176
N.J. 324, 329 (2003) (quoting Gilhooley, supra, 164 N.J. at 540-
41). Whether a party has met this second prong requires "a fact-
sensitive analysis." Id. at 331. A trial court must consider
whether the facts and circumstances place a plaintiff's injuries
on "that part of the 'continuum of cases' in which [our] Court has
determined that an injury is substantial and permanent." Ibid.
(quoting Gilhooley, supra, 164 N.J. at 541).
We need not address whether Ornella suffered a permanent
injury as a result of the incident because, even if she did, we
16 A-4140-15T1
are convinced that she failed to demonstrate a "permanent loss of
a bodily function that is substantial."
Certain injuries categorically satisfy the "permanent loss"
requirement - "injuries causing blindness, disabling tremors,
paralysis and loss of taste and smell." Gilhooley, supra, 164
N.J. at 541. These injuries inherently "implicate the substantial
loss of a bodily function (e.g., sight, smell, taste, and muscle
control)." Ibid. A substantial loss does not mean that a
plaintiff must demonstrate a "total permanent loss of use." Brooks
v. Odom, 150 N.J. 395, 406 (1997). Furthermore, "neither an
absence of pain nor a plaintiff's ability to resume some of his
or her normal activities is dispositive of whether he or she is
entitled to pain and suffering damages under the TCA." Knowles,
supra, 176 N.J. at 332.
In Kahrar, supra, 171 N.J. at 6, a plaintiff suffered a
"massive tear of [her] rotator cuff." The resulting surgery left
her with a permanently shortened tendon and forty-percent
decreased range of motion in her shoulder. Id. at 6-8. The Court
held this was a "substantial loss of a bodily function" as the
reduced range of motion "significantly impaired" her "ability to
use her arm to complete normal tasks." Id. at 16. In Gilhooley,
supra, 164 N.J. at 541-42, the plaintiff suffered a fractured
patella that required insertion of "permanent pins and wires to
17 A-4140-15T1
re-establish its integrity." Although the plaintiff had returned
to work, she suffered a "substantial loss" because her knee "could
not function" without the pins and wires. Id. at 542. Summarizing
Kahrar and Gilhooley, the Court in Knowles noted that both
plaintiffs "presented objective medical evidence linking an
injured body part to the plaintiff's inability, without extensive
medical intervention, to perform certain bodily functions."
Knowles, supra, 176 N.J. at 332-33.
At the other end of the "continuum" are cases in which an
injured party is merely "unable to perform certain tasks without
pain." Id. at 333. In Brooks, the plaintiff did not show
substantial loss where she "experience[d] pain" as a result of
soft tissue injuries in her neck and back, but she could still
"function both in her employment and as a homemaker." Brooks,
supra, 150 N.J. at 399, 406. As the Knowles Court summarized, the
Brooks defendant prevailed "because the plaintiff's daily
activities, although painful, were not substantially precluded by
her injuries." Knowles, supra, 176 N.J. at 333.
Similarly, in Ponte v. Overeem, 171 N.J. 46, 51-54 (2002),
the plaintiff did not demonstrate substantial loss where his knee
injury temporarily hindered his ability to exercise and do
housework, but the record did not establish he was permanently
"restricted because of his knee" in performing daily activities.
18 A-4140-15T1
See also Newsham v. Cumberland Reg'l High Sch., 351 N.J. Super.
186, 195 (App. Div. 2002) (concluding there was no substantial
loss where a vertebra fracture caused only "minor" limitations on
plaintiff's ability to perform daily activities).
Applying these principles, plaintiffs cannot satisfy the
threshold because Ornella has not suffered a "substantial loss"
of use of her arm. Ornella testified that the activities impaired
by the injury to her arm are: loss of strength, an inability to
push or pull with the arm, and loss of range of motion. Ornella
further testified that she works full time, completes household
chores with discomfort, and takes destination vacations, both
domestic and foreign. Being unable to perform certain tasks
without pain does not suffice to meet the threshold. Knowles,
supra, 176 N.J. at 333.
Moreover, Ornella's own testimony distinguishes this case
from Kahrar. Although both she and Kahrar each suffered a shoulder
injury that reduced their range of motion, Kahrar's injury
"significantly impaired" her ability to complete normal tasks.
Kahrar, supra, 171 N.J. at 16. Here, Ornella admits her ability
to carry out daily tasks is unchanged. While Ornella's injury has
undoubtedly caused her discomfort and made enjoying some
activities more difficult, there is no genuine dispute that she
is still able to carry out her daily activities. Accordingly,
19 A-4140-15T1
Ornella has not suffered a "substantial loss" of use of a bodily
function.
IV.
Finally, plaintiffs argue that the judge violated Rule 1:36-
3 by relying on unpublished opinions in his decision. The use and
authority of unpublished opinions is governed by Rule 1:36-3,
which provides that "[n]o unpublished opinion shall constitute
precedent or be binding upon any court" and that, "except to the
extent required by res judicata, collateral estoppel, the single
controversy doctrine or any other similar principle of law, no
unpublished opinion shall be cited by any court."
"It is well settled that a trial court's order or judgment
may be affirmed for reasons other than those expressed by the
judge." Price v. N.J. Mfrs. Ins. Co., 368 N.J. Super. 356, 359
n.1 (App. Div. 2004) (citing Ellison v. Evergreen Cemetery, 266
N.J. Super. 74, 78 (App. Div. 1993)), aff'd, 182 N.J. 519 (2005).
"[I]f the order of the lower tribunal is valid, the fact that it
was predicated upon an incorrect basis will not stand in the way
of affirmance." Isko v. Planning Bd. of Livingston, 51 N.J. 162,
175 (1968).
Suffice it to state, despite the judge's reference to
unpublished opinions, we are satisfied he relied upon those
opinions for their reasoning, rather than for precedent. We are
20 A-4140-15T1
further satisfied that the judge's decision granting summary
judgment was also premised upon controlling statutory and
precedential case law. As such, we discern no error.
Affirmed.
21 A-4140-15T1