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Thursday, May 19, 2011

Kent Motor Cars, Inc. d/b/a Honda of Princeton v. Reynolds and Reynolds, Co. (A-102/103-09)

Kent Motor Cars, Inc. d/b/a Honda of Princeton v. Reynolds and Reynolds, Co. (A-102/103-09)

(1) Because the Dealerships seek trebling of counsel fees and damages that were already trebled in Wilson, allowing the Consumer Fraud Act claim to proceed following an inexcusable violation of Rule 4:5-1(b)(2) will result in substantial prejudice to Reynolds; and permitting the contribution claim will allow for fair compensation and prevent Reynolds from avoiding responsibility for an alleged regulatory violation. (2) Because the claims in Wilson did not relate to leasing or financing, they did not give rise to a duty to defend within the meaning of the Universal policy’s coverage for violations of “truth-in-lending or truth- in-leasing” laws.

Gregory Russo v. Board of Trustees, Police and Firemen’s Retirement System (A-20-10)

Gregory Russo v. Board of Trustees, Police and Firemen’s Retirement System (A-20-10)

In this case in which a policeman was involved in a fire rescue that caused injury to him and a victim’s death, the officer was improperly denied accidental disability benefits for his mental injury because of an incorrect application of the standards set forth in Patterson v. Board of Trustees, 194 N.J. 29 (2008).

Ming Yu He v. Enilma Miller (A-81-09)

The jury’s award cannot stand because the trial court provided a sufficient explanation for remittitur and its decision was supported by the record.

Donald C. Sachau v. Barbara Sachau (A-33-10)

Donald C. Sachau v. Barbara Sachau (A-33-10)

Because the judgment of divorce was silent regarding the value to be ascribed to the marital home if it was not sold upon the triggering event – the emancipation of the youngest child – it fell to the court to supply that omitted term. Pacifico v. Pacifico, 190 N.J. 258 (2007), presumes value as of the trigger if the sale takes place at that time. Here, because there was no agreement to the contrary, the marital home should have been valued as of the date of the sale.

ALON FRUMER, ET AL. VS. NATIONAL HOME INSURANCE COMPANY, ET AL. A-1379-10T4

ALON FRUMER, ET AL. VS. NATIONAL HOME INSURANCE COMPANY, ET AL.

A-1379-10T4

The primary issue in this appeal is whether binding arbitration is the exclusive remedy for a dispute involving claims covered by a new home buyer's warranty issued by a private warranty plan. We conclude the warranty provides an election of remedies for a dispute involving a workmanship/systems defects claim; however, where the homeowner files a claim against the warranty, binding arbitration is theexclusive remedy. We also conclude the warranty provides no election of remedies for a dispute involving a major structural defects claim and binding arbitration is the exclusive remedy. 5-16-11

IN THE MATTER OF THE DENIAL OF THE APPLICATION OF GILES W. CASALEGGIO FOR A RETIRED LAW ENFORCEMENT OFFICER PERMIT TO CARRY A HANDGUN A-4924-09T4

IN THE MATTER OF THE DENIAL OF THE APPLICATION OF GILES W. CASALEGGIO FOR A RETIRED LAW ENFORCEMENT OFFICER PERMIT TO CARRY A HANDGUN A-4924-09T4

The issue presented in this case is whether a former assistant prosecutor and deputy attorney general is eligible for a permit to carry a handgun under N.J.S.A. 2C:39-6(l), which covers retired law enforcement officers. Based on our interpretation of the statute and its underlying purpose, we hold that neither an assistant prosecutor nor a deputy attorney general qualifies as a "full-time member of a State law enforcement agency" for the purpose of this exemption. Additionally, as used in N.J.S.A. 2C:39-6(l), the federal Law Enforcement Officers Safety Act of 2004, 18 U.S.C.A. § 926C, does not encompass retired assistant prosecutors or deputy attorneys general. 5-16-11

HAROLD M. HOFFMAN, ETC. VS. SUPPLEMENTS TOGO MANAGEMENT, LLC, ET. AL. A-5022-09T3

HAROLD M. HOFFMAN, ETC. VS. SUPPLEMENTS TOGO MANAGEMENT, LLC, ET. AL.

A-5022-09T3

We reverse the trial court's enforcement of a forum selection clause within the internet webpage of the defendant product sellers, where the webpage was structured in a manner that "submerged" the clause so that it would not appear on a potential purchaser's computer screen unless he or she scrolls down to display it before adding a product to his or her electronic "shopping cart."

JAMES BARACIA VS. BOARD OF TRUSTEES OF THE STATE POLICE RETIREMENT SYSTEM A-3611-09T2

JAMES BARACIA VS. BOARD OF TRUSTEES OF THE STATE POLICE RETIREMENT SYSTEM

A-3611-09T2

An employer's payment of its pro rata share of petitioner's attorney's fees incurred in the prosecution of a third-party action in which the employer received reimbursement of its statutory workers' compensation lien and was relieved of its future workers' compensation liability does not constitute a payment of compensation under N.J.S.A. 34:15-40(b). As a consequence, petitioner's accidental disability retirement allowance from the State Police was not subject to a dollar-for-dollar reduction under N.J.S.A. 53:5A-38.1(b) because it was not compensation or payment of a periodic benefit under the workers' compensation scheme, but represented a credit for the employer's portion of the attorney's fee in the third-party recovery lawsuit. 05-13-11

NICKEMEA WHITFIELD VS. BONANNOREAL ESTATE GROUP, ET AL. A-2830-09T1

NICKEMEA WHITFIELD VS. BONANNOREAL ESTATE GROUP, ET AL.

A-2830-09T1

Plaintiff was injured at work and received workers' compensation benefits from her employer. She instituted a third-party negligence action against a number of parties, including the lessee of the premises, a general partnership in which her employer was a partner. The partnership sought summary judgment, arguing that the immunity provided by N.J.S.A. 34:15-8 applied. It contended that because the partnership shared liability for the actions of its agents, i.e., the individual partners, it was entitled to share in the immunities provided to those partners.

We concluded that the partnership was a separate entity, a third-party, under the Worker's Compensation Act. Further, the Revised Uniform Partnership Act reflected an evolution in the legal theory of partnerships, rejecting the common law notion of a partnership being an aggregate of its partners, and adopting the entity theory. Pursuant to the express language of both statutes, and the general policies of the Workers' CompensationAct, the partnership was not entitled to the immunity provided by N.J.S.A. 34:15-8 to its partner, the employer of plaintiff 05-12-11

VALERIA HEADEN VS. JERSEY CITY BOARD OF EDUCATION A-5947-09T1

VALERIA HEADEN VS. JERSEY CITY BOARD OF EDUCATION A-5947-09T1

In this appeal, we are asked to determine whether school districts that have adopted the New Jersey Civil Service Act, N.J.S.A. 11A:1-1 to :12-6, are required to extend vacation leave to the district's ten-month food service employees pursuant to N.J.S.A. 11A:6-3, and an implementing regulation, N.J.A.C. 4A:6- 1.1(e). We concluded the statute addressed to full-time State and political sub-division employees was not intended to include local school district employees whose employment is subject to the provisions of Title 18A, and whose leave is defined by the terms of the applicable collectively negotiated agreement. 05-12-11

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. A.R., J.R., W.B., AND J.H. IN THE MATTER OF N.R., I.R., AND J.H. A-3161-10T4

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. A.R., J.R., W.B., AND J.H.

IN THE MATTER OF N.R., I.R., AND J.H. A-3161-10T4

The undisputed facts revealed that defendant left his ten- month child to sleep on a twin bed without railings, while a ten-year old child also slept in the bed, near an operating radiator; the ten-month old child was found the next morning on the floor suffering severe burns from the hot radiator. The trial court found defendant was merely negligent and the child neither abused nor neglected within the meaning of N.J.S.A. 9:6- 8.21(c). The court granted leave to appeal and reversed, concluding in its application of the statutory standard, as interpreted in G.S. v. Dep't of Human Servs., 157 N.J. 161 (1991), that defendant was grossly negligent because "an ordinary reasonable person" would understand the situation posed

dangerous potential risks and defendant acted without regard for the serious consequences.

PRIME ACCOUNTING DEPARTMENT VS. TOWNSHIP OF CARNEY'S POINT A-4994-09T4

PRIME ACCOUNTING DEPARTMENT VS. TOWNSHIP OF CARNEY'S POINT

A-4994-09T4

We uphold dismissal of a tax appeal complaint for lack of jurisdiction under N.J.S.A. 54:3-21, which confers limited jurisdiction upon the Tax Court for direct review of real property assessments only after timely filing of a complaint by an aggrieved taxpayer. Under the statute, the complaint must satisfy the State Uniform Tax Procedure Law and the Court Rules, including Rule 8:3-5(a), which requires identification of the taxpayer and subject property. We find the complaint, which named as plaintiff a non-legal entity with no relation to the subject property but identified on the municipal tax list, improper, rendering taxpayer outside the prescribed statutory time limits. The relation back doctrine, Rule 4:9-3, is inapplicable because the named plaintiff is entirely unrelated to taxpayer and would thus not be a routine substitution as permitted by the Rule. 05-09-11

IN THE MATTER OF TOWNSHIP OF PARSIPPANY-TROY HILLS AND PARSIPPANY PUBLIC EMPLOYEES LOCAL 1 A-0471-10T2

IN THE MATTER OF TOWNSHIP OF PARSIPPANY-TROY HILLS AND PARSIPPANY PUBLIC EMPLOYEES LOCAL 1

A-0471-10T2

We affirm the Public Employment Relations Commission's decision that a town cannot as a matter of statutory or managerial right require a union employee to fill out a Family Medical Leave Act (FMLA) medical certification if that employee expressly declines FMLA leave. 05-05-11

ONE STEP UP LTD, VS. SAM LOGISTIC, INC., ET AL. A-2494-09T3

ONE STEP UP LTD, VS. SAM LOGISTIC, INC., ET AL. A-2494-09T3

The primary issue in this case is whether a bailee can escape liability for conversion under the UCC's good faith exception, N.J.S.A. 12A:7-404. We hold that a bailee faced with adverse claims cannot avail itself of this exception where it failed to follow the procedure set forth in Capezzaro v. Winfrey, 153 N.J. Super. 267, 273 (App. Div. 1977). Specifically, in order to establish that the property was released in "good faith," the bailee must show that it either (1) investigated the competing claims and confirmed the validity of the claim underlying the release, or (2) filed an action for interpleader. 05-04-11

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. K.L.W. AND P.L.J. A-5178-09T3, A-5234-09T3 (CONSOLIDATED)

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. K.L.W. AND P.L.J.

A-5178-09T3, A-5234-09T3 (CONSOLIDATED)

Although the Division of Youth & Family Services knew that this child's siblings were in the custody of their maternal grandparents and had their address, the Division did not contact them as required by N.J.S.A. 30:4C-12.1. Because the Division's non-compliance affected the trial judge's analysis of the child's best interests under N.J.S.A. 30:4C-15a(1)-(4), we reverse.05-03-11

ESTATE OF NANCY Z. PALEY VS. BANK OF AMERICA (f/k/a FLEET BANK, f/k/a FIRST JERSEY BANK, f/k/a WESTMINSTER BANK, f/k/a SUMMIT BANK), ET AL. A-4391-07

ESTATE OF NANCY Z. PALEY VS. BANK OF AMERICA (f/k/a FLEET BANK, f/k/a FIRST JERSEY BANK, f/k/a WESTMINSTER BANK, f/k/a SUMMIT BANK), ET AL. A-4391-07T3, A-5519-07T3, A-5864-07T3 (CONSOLIDATED)

We held that the Consumer Fraud Act (CFA) does not apply to a claim by a bank depositor for payment by the bank of multiple checks presented to and paid by it to the depositor's medical aide. We held that the CFA provides no remedy to the depositor when a bank adopts a check presentation and clearance procedure consistent with the Uniform Commercial Code (UCC), specifically Articles 3 and 4 of the UCC, N.J.S.A. 12A:3-101 to -605 and 4-101 to -504, has acted in conformity with those procedures, and does not have an agreement with the depositor that creates a special relationship with duties beyond those imposed by the UCC. 04-29-11

THERESA MEIER, ET AL. VS. PASQUALE D'AMBOSE A-2555-09T1

THERESA MEIER, ET AL. VS. PASQUALE D'AMBOSE A-2555-09T1

In the absence of a lease provision to the contrary, defendant-landlord had a duty to the lessee of a single-family dwelling to maintain the furnace and to inspect periodically for defects in order to prevent a hazardous condition leading to a fire and the lessee's death. Although the lease was for the entirety of the premises, the controlling law is that expressed in Restatement (Second) of Torts § 358, rather than the holdingsof Patton v. Texas Co., 13 N.J. Super. 42 (App. Div.), certif.

denied, 7 601 (App.N.J. 348 (1951), and Szeles v. Vena, 321 N.J. Super. Div.), certif. denied, 162 N.J. 129 (1999). 04-28-11

JEFFREY McDANIEL, ET AL. VS. MAN WAI LEE, ET AL. A-5900-09T1

JEFFREY McDANIEL, ET AL. VS. MAN WAI LEE, ET AL. A-5900-09T1

In this multi-vehicle auto negligence action, we conclude N.J.S.A. 34:15-8, the fellow-servant provision of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, bars a third-party tortfeasor's action against the co-worker seeking indemnification and contribution.

STEVEN ORNER, ET AL. VS. GUANG LIU, ET AL. A-6185-09T4

STEVEN ORNER, ET AL. VS. GUANG LIU, ET AL. A-6185-09T4

This action, which concerned disputes about plaintiffs' sale of certain rental properties to defendants, was settled and dismissed on June 8, 2009. The parties' settlement agreement provided for the execution of new contracts within three days and a closing no later September 15, 2009, after which -- if the closing did not occur -- the parties would have no further obligations. The parties failed to agree on the form and content of new contracts, and plaintiffs sold the properties to others.

Defendants filed a motion for relief, pursuant to Rule 4:50-1, on June 7, 2010, one day short of a year from the order in question. The trial judge denied the motion and the court affirmed, concluding among other things that the motion was untimely. In affirming, the court emphasized that Rule 4:50-2 requires that all motions for relief pursuant to Rule 4:50-1 must be filed within "a reasonable time." Rule 4:50-2's declaration that motions based on subsections (a), (b), or (c) of Rule 4:50-1 may not be filed more than one year from the order in question represents only an outer limit; such motions must still be filed within "a reasonable time," which may be

less than one year. 04-26-11

IN THE MATTER OF THE STATE BOARD OF EDUCATION'S DENIAL OF PETITION TO ADOPT REGULATIONS IMPLEMENTING THE NEW JERSEY HIGH SCHOOL VOTER REGISTRATION LA


IN THE MATTER OF THE STATE BOARD OF EDUCATION'S DENIAL OF PETITION TO ADOPT REGULATIONS IMPLEMENTING THE NEW JERSEY HIGH SCHOOL VOTER REGISTRATION LAW

A-5681-09T3

We construe N.J.S.A. 18A:36-28, which prescribes that the Commissioner of Education "shall adopt pursuant to the'Administrative Procedure Act' . . . rules and regulations necessary to implement the provisions" of the High School Voter Registration Law (the "HSVRL"), N.J.S.A. 18A:36-27, to impose a mandatory, not a directory, obligation upon the Commissioner to adopt regulations implementing the statute.

We affirm the denial of appellants' petition for rulemaking because respondents have enacted regulations under N.J.A.C. 6A:30, Appendix A and B, to monitor compliance with the HSVRL by public school districts. Although appellants contend that those regulations are insufficient, we do not find respondents' chosen method to implement the statute with respect to public schools to be arbitrary or capricious. However, we reverse the denial of appellants' petition with respect to nonpublic schools because N.J.S.A. 18A:36-27 explicitly applies to both public and nonpublic schools, and respondents have not adopted any regulations to implement the HSVRL as to nonpublic schools.

DEAN SMITH VS. HUDSON COUNTY REGISTER, ET AL. JEFF ZEIGER VS. HUDSON COUNTY REGISTER, ET AL. A-4113-09T3, A-4114-09T3,

DEAN SMITH VS. HUDSON COUNTY REGISTER, ET AL. JEFF ZEIGER VS. HUDSON COUNTY REGISTER, ET AL. A-4113-09T3, A-4114-09T3, (CONSOLIDATED)

A requestor who is charged an excessive amount to obtain copies of public records under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, who then prevails in an OPRA action against the public entity that engaged in the overcharging, or whose OPRA action acts as a catalyst to a change in the public entity's practices, is entitled to receive reasonable attorney's fees pursuant to N.J.S.A. 47:1A-6. The requirement within the fee-shifting provision, N.J.S.A. 47:1A-6, that the requestor be "denied access" to the records is not restricted to instances where physical access has been denied, but also encompasses instances where a requestor has been forced to pay excessive copying charges to obtain the records at rates above those prescribed by OPRA in N.J.S.A. 47:1A-5(b). Applying these standards, we hold that plaintiff Dean Smith, who was a prevailing party in Smith v. Hudson County Register, 411 N.J. Super. 538 (App. Div. 2010), which produced a change in defendants' practices, is entitled to an award of reasonable trial and appellate counsel fees. 04-25-11

BARBARA A BOTIS VS. ESTATE OF GARY G KUDRICK VS. WELLS FARGO BANK A-5562-09T4

BARBARA A BOTIS VS. ESTATE OF GARY G KUDRICK VS. WELLS FARGO BANK

A-5562-09T4 Effective January 18, 2009, the statute of frauds, N.J.S.A. 25:1-5 to -16, was amended to include palimony agreements among the types of "agreements or promises" that must be in writing and signed by the parties in order to be enforceable. N.J.S.A. 25:1-5(h); L. 2009, c. 311, § 1. This case requires us to determine whether to accord the amendment retroactive effect in a case filed against the deceased promisor's Estate prior to the effective date of the amendment on an alleged palimony agreement enforceable when the complaint was filed. We conclude that the amendment applies prospectively and affirm the June 9, 2010 order denying the Estate's motion to dismiss the complaint, which is before us on leave granted. 04-21-11

DOVER-CHESTER ASSOCIATES, ETC. VS. RANDOLPH TOWNSHIP AND RANDOLPH TOWN CENTER ASSOCIATES, L.P. ET AL. VS. RANDOLPH TOWNSHIP (CONSOLIDATED) A-3445-09T3

DOVER-CHESTER ASSOCIATES, ETC. VS. RANDOLPH TOWNSHIP AND RANDOLPH TOWN CENTER ASSOCIATES, L.P. ET AL. VS. RANDOLPH TOWNSHIP (CONSOLIDATED) A-3445-09T3, A-3446-09T3

These appeals from the judgment of a county board of taxation to the Tax Court are governed by N.J.S.A. 54:51A-1(b), which requires that all taxes due for the year for which review is sought must have been paid "[a]t the time that a complaint has been filed with the Tax Court[.]" In contrast, direct appeals to the Tax Court and initial appeals to a county board of taxation are governed by N.J.S.A. 54:3-27, which requires the appealing taxpayer to pay all taxes due, up to and including the first quarter of the taxes assessed against him for the current tax year. However, because N.J.S.A. 54:3-27 does not specify when such payment must be made, we have found the requirement satisfied when payment is made by the return date of a motion to dismiss the appeal. The Legislature amended the statutes in 1999, adding provisions that permitted the relaxation of the tax payment requirements in the "interests of justice" but did not define that term. As we have not previously considered the application of that provision and a conflict has arisen in decisions in the Tax Court, we address the question whether relaxation is required in the "interests of justice" under N.J.S.A. 54:51A-1(b) if the tax obligation is satisfied before the return date of a motion to dismiss its complaint. We conclude that it is not.4-20-11

REZEM FAMILY ASSOCIATES, LP VS. THE BOROUGH OF MILLSTONE, ET AL. A-2290-09T2

REZEM FAMILY ASSOCIATES, LP VS. THE BOROUGH OF MILLSTONE, ET AL.

A-2290-09T2

The primary issue on appeal is whether a plaintiff must exhaust administrative and judicial remedies, and obtain a final ruling on its land use claims, before it can pursue a cause of action for alleged violation of its substantive due process rights. We hold that a substantive due process claim in a land use dispute requires both governmental misconduct that "shocks the conscience" and exhaustion of remedies available under our land use law. 4-15-11

Wednesday, May 18, 2011

worker's comp CHRISTINE GILLESPIE, Petitioner-Appellant, v. NEWARK PUBLIC SCHOOLS, DOCKET NO. A-5317-09T4

worker's comp

CHRISTINE GILLESPIE, Petitioner-Appellant,

v. NEWARK PUBLIC SCHOOLS, DOCKET NO. A-5317-09T4

Respondent-Respondent. __________________________________

May 17, 2011 Before Judges Graves and Waugh.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Docket No. 98-038133.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION


PER CURIAM Petitioner Christine Gillespie appeals from three orders of

the Division of Workers' Compensation (Division). We affirm as to one order and dismiss the appeal as to the remaining orders.

Argued May 3, 2011 - Decided

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5317-09T4

I. We discern the following facts and procedural history from

the record. We set forth only the information necessary for the disposition of the issues before us.

Gillespie was a schoolteacher employed by respondent Newark Public Schools (Newark) as a "Language Arts Staff Developer." On September 4, 1998, Gillespie was injured as she was shelving books when "[the bookshelf's] contents fell down upon her, knock[ed] her to the floor . . . [and] gash[ed] her head." On November 20, 1998, she filed a workers' compensation claim in which she alleged that she had "sustained an injury . . . compensable" under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -69.3, because the "accident ar[ose] out of and in the course of [her] employment." On March 5, 1999, respondent filed an answer, denying petitioner was "in the course of employment" at the time of her injuries.

During the ten years following the filing of Gillespie's claim, there was extensive motion practice concerning her eligibility for compensation and medical treatment under the Act, as well as the identity of medical practitioners who could provide treatment. During the course of that motion practice, Gillespie filed a motion seeking the recusal of the judge of

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compensation assigned to her case. The motion was apparently denied.

In or about September 2008, Newark moved to dismiss the compensation petition for lack of prosecution. Gillespie opposed the motion. The judge granted the motion, but his order provided that the matter could be reinstated if Gillespie submitted to certain surgery by a physician named in the order. Rather than appealing that order, Gillespie wrote to the Commissioner of the New Jersey Department of Labor, which includes the Division, asking that the judge and his decision be investigated. She wrote to the Commissioner a second time, and sent a copy to the Division Director, who is the chief judge of compensation. In the interim, the judge who entered the dismissal order had retired.

The chief judge of compensation treated Gillespie's second correspondence as a pro se application for reinstatement, and assigned it to another judge of compensation for disposition. When Gillespie did not appear personally on March 30, 2009, the new judge adjourned the motion and entered an order requiring Gillespie to appear on May 11, 2009. It appears from the record that the judge wanted Gillespie to be at the hearing so that she could directly ascertain Gillespie's position with respect to

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the disputed surgical procedure that had led to the December 2008 order of dismissal.

In a March 31 letter forwarding the order implementing the March 30 adjournment, the judge directed counsel for Newark to provide her with written assurance, prior to the adjourned date of the hearing, that Newark was still willing to have Mark McBride, M.D., perform the proposed surgery on Gillespie and that McBride was still willing to do so. She also requested information concerning McBride's qualifications. She further directed Gillespie's then counsel to provide "a letter executed by [his] client that she will submit to the surgery to be performed by Dr. McBride." The judge asked for "a firm date for (pre-surgery) consultation . . . scheduled with Dr. McBride on the return hearing date," so counsel for Newark could verify the availability of the surgery at the hearing.

The March 31 letter concluded with the following, addressed to Gillespie's then counsel: "Lastly, I have been advised that [Gillespie's husband] may have been tape recording the entire proceeding on the record without court knowledge or permission. I advise you . . . to review the court rules in this regard." Gillespie's husband, a member of the Bar who was not representing his wife at the time, became counsel of record in December 2009.

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Shortly before the May 11 hearing date, Gillespie wrote to the judge stating that she did not wish to proceed with the motion to reinstate.1 Gillespie's counsel appeared on May 11, without his client, and confirmed that Gillespie wished to withdraw the application for reinstatement. Although Newark sought to have the motion denied rather than withdrawn, the judge allowed Gillespie to withdraw the application.

The judge informed Gillespie's counsel that she considered his client's practice of sending ex-parte letters to be "most inappropriate."2 Counsel responded that he had advised his client not to send such letters. The judge described the contents of some of the letters as "venomous" and suggested that Gillespie was attempting to prejudice her against Newark through the letters. Consequently, she stated on the record that she would not consider such letters in the future, but would instead have them forwarded to Gillespie's then attorney.

On December 3, 2009, Gillespie, now represented by her husband, filed another motion to reinstate her claim. On March 1, 2010, Gillespie filed a motion to recuse the judge, arguing

1 The letter is not included in the record.

2 The letters referred to by the judge are not included in the record.

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that she had demonstrated bias toward Gillespie.3 The recusal motion was heard on May 24, 2010.

Gillespie alleged that the judge had engaged in biased conduct, contending that she had wrongfully accused Gillespie's husband of "secretly wire taping a . . . hearing" and then "started screaming and threatened to have security throw [Gillespie's husband] out of the building" when he approached her to discuss the March 31, 2009 letter; that the March 31 letter written by the judge "showed bias"; and that Newark's counsel had "planted [that] bias thought in the Judge's head" by approaching her and informing her that he believed Gillespie's husband was "playing with a tape recorder." She also argued that the judge had acted improperly by

sending all sorts of hurdles and hoops for [her] to jump through, go for an exam, do this, do that, before [the judge] would restore the case. You don't have jurisdiction to do that before you restore. You restore the case. They set it down for a hearing and then you issue your orders [for] scheduling.

3 The motions to reinstate and for recusal are not in the record. However, we note that Gillespie's reply brief improperly contains an affidavit, created in March 2011 while this appeal was pending, setting forth her reasons for the recusal application.

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Finally, Gillespie asserted that the judge was wrong not to have addressed her motion to vacate the dismissal at the March 2009 hearing.

In her ruling, the judge explained that she was not biased against Gillespie. She noted that the March 31, 2009 letter only stated that Gillespie's husband "may have been tape recording"4 the hearing. The judge further explained that she would not speak to Gillespie's husband at the time complained about because she does "not allow petitioners or respondent[s], witnesses, . . . spouses, [or] family members to come into [her] chambers to address [her] in an irate manner."

The judge did not directly address Gillespie's argument that she demonstrated bias when she adjourned the motion because Gillespie failed to appear on March 29. The judge did state that she did not address the motion in May because it had been "voluntarily withdrawn."

However, during the recusal argument, the judge outlined her own well-founded concerns with the 2008 dismissal order:

I'm not sure that [the prior judge] properly dismissed [Gillespie's claim]. There really shouldn't be conditional dismissal of any claim by th[e] statute because you can't

4 At the May 11 hearing, counsel for Newark stated that he had informed the judge of the possible use of a tape recorder. The circumstances under which that occurred are not set out in the record.

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extend the statute beyond the one year ....

....

. . . I agree with [Gillespie] in that the language of the original order of dismissal should not have been made a condition for attendance of a medical exam. Because what that can do is it can extend the time period beyond a year and a judge does not have the authority to extend that jurisdiction. So the way that the language reads in that order, I agree with you in that I think it's improper.

After the judge denied the recusal motion, Gillespie immediately demanded "[t]hat leave to appeal to the Commissioner [of Labor be] included in the Order." The judge adjourned the motion to reinstate, which is still pending.

This appeal followed.

II. In her notice of appeal, which was filed on July 8, 2010,

Gillespie lists three orders: (1) the December 5, 2008 order of dismissal, (2) the March 30, 2009 order rescheduling the reinstatement motion to May 11, 2009, and (3) the May 24, 2010 order denying the recusal application. The first issue we address is whether this appeal is properly before us as to those orders.

We view the December 2008 order as a final administrative order, appealable as of right. R. 2:2-3(a)(1). Appeals from

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such orders must be filed within forty-five days of their entry. R. 2:4-1(a). Although the December 5 order may have been erroneous, it should have been appealed within the forty-five days required by the rule.5 Because the time to appeal the December 2008 order has long-since expired, that order is not properly before us. Consequently, we dismiss that aspect of the appeal.

The March 2009 order was interlocutory and related to Gillespie's motion to reinstate her claim. That motion was subsequently withdrawn by Gillespie, as confirmed by her attorney, on the record, on May 11, 2009. Because the underlying motion was withdrawn, we conclude that the March 2009 order is moot. In any event, even if its withdrawal in May 2009 did not render it moot, the time to appeal would have commenced on May 11 and expired prior to the filing of this appeal over one year later. Consequently, we also dismiss that aspect of the appeal.

The May 2010 order denied a motion that was filed while Gillespie's most recent motion to reinstate was pending. In fact, the motion sought recusal of the judge who was scheduled to decide the pending motion. When recusal was denied,

5 Once the time to appeal expired, the proper approach was to move for reinstatement in the compensation court. See R. 4:50- 1(d) (allowing relief from a void final judgment).

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Gillespie requested the opportunity to appeal the denial to the Commissioner of Labor. We know of no such avenue of administrative appeal. N.J.S.A. 34:15-66 provides that appeals from the decisions of judges of compensation are made to the Appellate Division.

Although Gillespie filed her notice of appeal within forty- five days of entry of the May 2010 order, we have concluded that it was not a final order because her motion to reinstate was still pending. Leave to appeal should have been sought on motion pursuant to Rule 2:2-4. Nevertheless, we grant leave to appeal nunc pro tunc. We will consider the merits of Gillespie's arguments with respect to the issue of recusal.

The disposition of a recusal motion is entrusted to the "'sound discretion' of the judge whose recusal is sought." Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:12-2 (2011) (citing Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009)); see also Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). The mere fact that a litigant disagrees with a judge's decisions when they are not in his or her favor, however, is not grounds for recusal. The denial of a motion seeking recusal is reviewed under "an abuse of discretion standard." See Panitch v. Panitch, 339 N.J. Super. 63, 71 (App. Div. 2001).

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Judges of compensation are governed by rules of conduct, N.J.A.C. 12:235-10.1 to 10.23, modeled on the Code of Judicial Conduct. With respect to disqualification, N.J.A.C. 12:235- 10.7(a)(1) provides that a "judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, [if] . . . [t]he judge has a personal bias or prejudice concerning a party or a party's lawyer or has personal knowledge of disputed evidentiary facts concerning the proceeding."

Gillespie premises her argument for recusal on personal bias, pointing primarily to the judge's comments about her ex- parte letters, her letter suggesting that Gillespie's husband might have been using a tape recorder during one proceeding, her refusal to speak to Gillespie's husband at a time he was not counsel of record, her order requiring Gillespie to set forth her position on the surgical procedure in advance of the May 11, 2009 hearing, and her failure to rule on the motion to restore the compensation claim. We see no basis for recusal in the record before us.

The writing of ex-parte letters to any court is inappropriate, and the judge properly advised Gillespie not to continue that conduct. The judge's March 31, 2009 letter did not wrongfully accuse Gillespie's husband of misconduct, but

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stated that she had been advised that there might have been a tape recorder and that the appropriate rules should be consulted in that regard. The judge was under no obligation to speak with a litigant's relative in an informal setting, especially if that relative was seeking to express his or her views concerning the merits or procedures involving a pending case. We see no reasonable basis to believe that those actions are indicative of personal bias against Gillespie or her husband.

We also see no personal bias reflected in the judge's instruction to counsel for both sides that their clients' respective positions concerning the proposed McBride surgery be firmly established prior to consideration of the application to reinstate the claim.6 Nor do we see any indication of bias with respect to the judge's direction that a party be present at a hearing so that future actions can be decided upon. Finally, the judge properly declined to decide the reinstatement motion when it was withdrawn at the May 11, 2009 hearing. On May 24, 2010, the judge would have addressed setting aside the December 2008 order, about which she expressed considerable doubt, had Gillespie not insisted on her not doing so pending an appeal.

6 Nevertheless, we recommend that the motion for reinstatement be considered on its own merits and that, if granted, the judge then establish timelines for an orderly and expeditious resolution of all issues remaining in this case.

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Gillespie's briefs raise other arguments, many of them related to issues not properly before us, that are without merit and not warranting discussion in a written opinion. R. 2:11- 3(e)(1)(E).

In summary, we dismiss the appeal as to all orders except the May 24, 2010 order denying the recusal motion, which we affirm. The matter is remanded to the Division for consideration of Gillespie's pending motion to reinstate.

Affirmed in part, dismissed in part.

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Thursday, May 12, 2011

Lemma v. Penwood Racing DOCKET NO. A-5078-09T3

Lemma v. Penwood Racing DOCKET NO. A-5078-09T3

,ANTHONY LEMMA and GAIL GRINKEVICH,

Plaintiffs-Appellants,

v.

PENNWOOD RACING, STATE OF NEW JERSEY, DIVISION OF N.J. RACING COMMISSION,

Defendants-Respondents,

and PATRICK BERRY,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Defendant. _______________________________________

Submitted March 22, 2011 – Decided May 11, 2011

Before Judges Parrillo, Yannotti and Skillman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5564-07.

Anthony F. Malanga, Jr., appellants.

attorney for

Ronan, Tuzzio & Giannone, respondent Pennwood Racing Boyle, of counsel and on the brief).

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5078-09T3

attorneys for (Gregory W.

Paula T. Dow, Attorney General, attorney for respondent State of New Jersey, Division of N.J. Racing Commission (Laura A. Schaff, Deputy Attorney General, on the brief).

PER CURIAM Plaintiffs Anthony Lemma (Lemma) and Gail Grinkevich

(Grinkevich) appeal from orders entered by the Law Division dismissing their claims against defendants Pennwood Racing (Pennwood), and the State of New Jersey, Division of Racing Commission (State). We affirm.

I. On November 23, 2005, Lemma was the driver of a horse named

"Cocoa Aulait," which was entered in the eleventh race at Freehold Raceway (Raceway). Lemma alleges that he had finished the post-parade warm up and was "scoring down" his horse when another driver, defendant Patrick Berry (Berry), entered the racetrack, lost control of his horse and collided with Lemma's cart and horse, causing Lemma to sustain severe and permanent personal injuries.

On November 23, 2007, Lemma and Grinkevich filed a complaint in the Law Division, naming Pennwood, the State and Berry as defendants.1 Lemma alleged that Pennwood and the State

1 It appears that Pennwood was incorrectly named as the owner of the Raceway in the complaint. The owner is F.R. Park Racing, L.P.

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were negligent because they failed to enforce certain regulations governing the "scoring down" of horses at the Raceway. Lemma also alleged that Pennwood was negligent in the ownership, maintenance and operation of the Raceway. He further claimed that Berry had negligently driven his horse, causing the collision that threw him to the ground. In addition, Grinkevich asserted a per quod claim.

On March 3, 2008, the State filed a motion for summary judgment pursuant to Rule 4:46-2. The State argued that it was immune from liability under the Tort Claims Act, N.J.S.A. 59:1-1 to 9-7 (TCA). The court granted the State's motion and entered an order dated April 14, 2008, dismissing plaintiffs' claims against the State, finding that the State was entitled to immunity under the TCA, specifically N.J.S.A. 59:2-4.

After Pennwood filed its answer, the court entered a case management order which required plaintiffs to produce their expert reports by March 11, 2009. Thereafter, the court entered another order which extended the time for plaintiffs to produce their expert reports, scheduled depositions, and directed that discovery be completed by October 15, 2009.

Because plaintiffs had not complied with the court's case management order, Pennwood filed a motion in July 2009 to compel them to produce their expert reports. On August 20, 2009, the

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court entered an order which extended discovery to December 11, 2009, and required plaintiffs to produce their expert reports by September 14, 2009, and barred any expert reports that were not produced by that date.

Plaintiffs did not comply with the court's order. In September 2009, Pennwood filed a motion for summary judgment. Pennwood argued that, because plaintiffs had not produced any expert reports, they failed to establish that Pennwood had breached a duty of care owed to Lemma. The court did not grant the motion. Instead, the court entered an order dated November 6, 2009, which extended the discovery end date to April 15, 2010.

The court gave plaintiffs additional time to produce their expert reports. The court required plaintiffs to serve their medical expert reports by December 31, 2009, and their liability expert reports by January 31, 2010. Plaintiffs did not serve their expert reports within the times required by the order.

On March 5, 2010, Berry filed a motion for summary judgment, in which he alleged that Lemma's claims against him were barred by the Workers' Compensation Act, N.J.S.A. 34:15-1 to -69.3, because Berry was Lemma's co-employee. Berry also argued that Grinkevich could not pursue a per quod claim because she was not married to Lemma.

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On March 23, 2010, Pennwood filed another summary judgment motion, and also argued that Grinkevich's per quod claim should be dismissed because she and Lemma were not married. Plaintiffs filed a cross-motion, seeking a further extension of time for discovery.

The court considered the motions on April 16, 2010, and entered an order that day granting Pennwood's motion for dismissal of Grinkevich's claim and Berry's motion for dismissal of all claims against him. The court also denied plaintiffs' motion to extend discovery and barred them from serving any expert reports.

On April 16, 2010, Pennwood filed yet another motion for summary judgment, arguing that, without expert testimony, Lemma could not maintain his claims against it. The court heard argument on May 14, 2010, and granted the motion. The court entered an order dated May 14, 2010, memorializing its decision.

On June 28, 2010, plaintiffs filed a notice of appeal from the April 14, 2008, order dismissing plaintiffs' claims against the State; the April 16, 2010, order dismissing Grinkevich's claims against Pennwood; and the May 14, 2010, order dismissing Lemma's claims against Pennwood.

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II. Plaintiffs argue that the trial court erred in granting the

State's motion for summary judgment. We disagree. The TCA provides that "public entities shall only be liable

for their negligence within the limitations of this act and in accordance with the fair and uniform principles" set forth therein. N.J.S.A. 59:1-2. The "dominant theme of the TCA was to reestablish the immunity of all governmental bodies in New Jersey, subject only to the TCA's specific liability provisions." Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 207 (2004). Under the TCA, "'immunity from tort liability is the general rule and liability is the exception.'" Coyne v. State, Dep't of Transp., 182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)).

The TCA provides that "[a] public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:2-2(a). However, N.J.S.A. 59:2-1(b) states that "[a]ny liability of a public entity established by this act is subject to any immunity of the public entity[.]"

Here, the trial court found that the State was entitled to immunity under the TCA, specifically N.J.S.A. 59:2-4, which

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provides that "[a] public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law." Under N.J.S.A. 59:2-4, a public entity has absolute immunity from liability where the essential conduct associated with the injury consists "of a failure to act, an omission, or non-action" and qualified immunity for actions taken in good faith in enforcing the law. Bombace v. City of Newark, 125 N.J. 361, 367-68 (1991). Absolute immunity for failure to enforce a law applies when there is no "act" that "'requires an external manifestation of the actor's will.'" Id. at 368 (quoting Marley v. Borough of Palmyra, 193 N.J. Super. 271, 293 (Law Div. 1983)).

In this case, plaintiffs alleged that the State's Racing Commission negligently failed to enforce its regulations. In support of these allegations, plaintiffs cite various regulations, including N.J.A.C. 13:70-19.31 (requiring the track superintendent to exercise control over the course as may be necessary "to protect its condition and the rights of all parties entitled to its use"); N.J.A.C. 13:70-16.4 (stating that stewards have the power and duty "to regulate and govern the conduct of all racing officials" as well as "other persons attendant on horse during, before, and after races" unless the power and duty resides with the Commission); N.J.A.C. 13:71-

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17.5(a) (providing for removal of a horse if, in the opinion of the judges or starter, the horse is "unmanageable or liable to cause accidents"); and N.J.A.C. 13:71-8.24(a)(2) (requiring judges to observe "preliminary warming up of horses and scoring" and to note the behavior of the horses, including "any unusual incidents pertaining to horses or drivers participating in races"). Plaintiffs contend that, because the State and its employees failed to enforce these regulations, Berry failed to control his horse during the "scoring down" process and collided with Lemma and his horse.

We are satisfied that the State is absolutely immune under N.J.S.A. 59:2-4 from liability on such claims, which are based on allegations of inaction rather than any specific affirmative steps taken by the State's employees at the Racetrack. As we have explained, the TCA provides absolute immunity where, as here, "the critical causative conduct by government employees consists of non-action or the failure to act with respect to the enforcement of" the applicable regulations. Bombace, supra, 125 N.J. at 373. We therefore conclude that the trial court correctly determined that the State was entitled to absolute immunity under N.J.S.A. 59:2-4.

Plaintiffs argue, however, that the trial court erred by granting the State's motion because these parties had not yet

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exchanged discovery. Again, we disagree. An affirmative defense, such as immunity from liability under the TCA, may be raised in a motion to dismiss under Rule 4:6-2(e) based upon the allegations in the pleadings. If a Rule 4:6-2(e) motion is based on any material outside of the pleadings, the motion must be treated as one seeking summary judgment. Ibid.

Here, the State filed what it called a motion for summary judgment but its motion was addressed solely to the allegations in the pleadings. The court correctly determined that, based on the facts in the complaint, the State was entitled to immunity under N.J.S.A. 59:2-4. Moreover, even if we accept the State's characterization of its motion as one for summary judgment, the court did not err by granting the motion before plaintiffs had the opportunity for discovery. Discovery would not have had any bearing on whether the State was entitled as a matter of law to summary judgment, based on the allegations in the complaint. Welling v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003).

III. Next, plaintiffs argue that the trial court erred by

granting Pennwood's motion for summary judgment. Again, we disagree.

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In this case, plaintiffs alleged that Pennwood was negligent in its operation of the Raceway. Plaintiffs claimed that Pennwood had an obligation to monitor and oversee all pre- race activities of the drivers and horses entered in the race, and to enforce the State's regulations regarding the "scoring down" of horses at the track.

The trial court determined that the standard of care for the management of racetrack operations was not "within the ken of typical jurors" and thus required expert testimony, which plaintiffs failed to produce within the time required by the court's case management orders. The court therefore concluded that Pennwood was entitled to judgment on the claims asserted against it.

Plaintiffs contend that the trial court erred by finding they were required to present expert testimony in order to support their claim that Pennwood negligently operated the Raceway. In order to succeed in a suit based on negligence, the plaintiff must establish that the defendant owed it a duty to exercise reasonable care, the defendant breached that duty and the breach was a proximate cause of the plaintiff's injury. Polzo v. City of Essex, 196 N.J. 569, 584 (2008); Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994), certif. denied, 139 N.J. 441 (1995).

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Where the court finds that a defendant owed the plaintiff a duty to exercise reasonable care, expert testimony will be required when "the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable." Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982); see also Kelly v. Berlin, 300 N.J. Super. 256, 269 (App. Div. 1997).

In support of their claims, plaintiffs cite numerous regulations that a horse track operator must comply with, including N.J.A.C. 13:70-3.13, which requires the operator to "maintain its grounds and facilities . . . with special consideration for the comfort and safety of patrons, employees and other persons whose business requires their attendance[.]" In addition, N.J.A.C. 13:70-19.31 provides that a track superintendent must "exercise such control over the course as may be necessary to protect its condition and the rights of all parties entitled to its use."

These regulations do not, however, specify the actions a track operator must take in order "to protect" the conditions of the track and its users during the "scoring down" process. Moreover, such actions are not "matters of common judgment and experience," and therefore jurors cannot be expected to know,

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without the guidance of expert testimony, whether Pennwood's alleged acts or omissions breached a duty of care owed to Lemma.

Plaintiffs argue, however, that our decision in Calhanas v. S. Amboy Roller Rink, 292 N.J. Super. 513 (App. Div. 1996), supports their argument that expert testimony was not required for their claims against Pennwood. In Calhanas, the plaintiff alleged that he sustained personal injuries while skating at the defendant's roller rink. Id. at 516. The plaintiff said that he was injured when a young child, who was allegedly "going a little wild," crossed the rink and collided with him. Id. at 517. The plaintiff brought suit against the rink owner, alleging that it was negligent because it failed to adequately supervise the rink or enforce its safety rules. Ibid. The trial court granted the defendant's motion for summary judgment. Id. at 518. The plaintiff appealed. Id. at 516.

We noted that, under the New Jersey Roller Skating Rink Safety and Fair Liability Act, N.J.S.A. 5:14-1 to -7 (the RSRFLA), skaters are deemed to assume the risks of roller skating, including injuries that result from "'incidental contact'" with other skaters. Id. at 519 (quoting N.J.S.A. 5:14- 6). We also noted that the RSRFLA barred any suit by a skater against the operator of the rink for injuries resulting from the assumed risk, unless the operator violated some specific duty or

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responsibility imposed by the RSRFLA. Ibid. (citing N.J.S.A. 5:14-7).

We concluded that the trial court erred by granting summary judgment to the rink operator because, based on testimony that the child had been "skating in an obviously reckless manner for some minutes before" running into the plaintiff, a jury could reasonably determine that the collision with the child "was not a normal incident of skating." Id. at 522-23. We additionally found that summary judgment should not have been granted because there was a genuine issue of material fact as to "what actually caused or contributed to the collision[.]" Id. at 523.

In our view, plaintiffs' reliance upon Calhanas is misplaced. As we have explained, Calhanas dealt with whether the rink operator was immune under the RSRFLA. There is no comparable statute at issue in this case. Moreover, Calhanas involved the supervision of roller skating rinks and their inherent risks, which are matters that jurors of common knowledge and experience can evaluate. The handling of horses during the "scoring down" process, and the manner in which track owners should supervise that process, is more complex and esoteric. Therefore, while expert testimony may not have been required in Calhanas, it was required here.

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Plaintiffs also contend that, because Pennwood is a commercial establishment and the public is invited onto its premises, it has a duty to exercise reasonable care and discover and eliminate dangerous conditions, maintain the premises in a safe condition and avoid creating conditions that would render the premises unsafe. Plaintiffs contend that Pennwood had a heightened duty to warn persons at the track of concealed hazardous conditions that Pennwood knew or should have discovered through the exercise of reasonable diligence.

These contentions fail, however, because the duties that plaintiffs rely upon pertain to dangerous conditions of property. See Bauer v. Nesbitt, 198 N.J. 601, 615 (2009). In this matter, Lemma was not injured as a result of an alleged dangerous condition of the racetrack's property. Rather, Lemma was injured when Berry allegedly lost control of his horse and collided with Lemma's horse and cart. Furthermore, in their reply brief, plaintiffs concede that the collision did not occur because of a dangerous condition on the racetrack property.

IV. Plaintiffs also argue that the trial court erred by

refusing to grant their motion for a further extension of time for discovery. Again, we disagree.

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Rule 4:24-1(a) specifies the time in which discovery must be completed, ranging from 150 to 450 days, depending upon the track to which the particular case is assigned. The parties may agree to extend the discovery period for an additional sixty days. R. 4:24-1(c). If the parties do not agree to such an extension, or if a longer extension of time is sought, a motion must be made and may be granted on a showing of good cause. Ibid. The rule states that "[n]o extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." Ibid.

Plaintiffs contend that, because the case had not been scheduled for trial and an arbitration date had not been fixed, the trial court should have granted their motion for another extension of time for discovery. Plaintiffs assert that they established good cause for a further extension of the discovery period.

Plaintiffs assert that they were unable to obtain the expert medical reports because certain doctors allegedly failed to cooperate with Lemma and his attorney. They also assert that, despite their best efforts, they were unable to complete depositions of a number of fact witnesses at the Raceway and, as a consequence, could not obtain their liability expert reports prior to the discovery end dates set by the court.

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We are satisfied, however, that the trial court did not err by denying plaintiffs' last motion to extend the time for discovery. As we explained previously, on January 27, 2009, the trial court required the production of expert reports by March 11, 2009. Plaintiffs did not produce their reports by that date. On March 9, 2009, the court extended the time for discovery, requiring plaintiffs to serve their expert reports in April and June 2009. Plaintiffs failed to meet these deadlines. On August 20, 2009, the court again extended the discovery end date and ordered plaintiffs to provide their expert reports by September 14, 2009. Plaintiffs did not meet this deadline.

On September 24, 2009, Pennwood filed a motion for summary judgment. The court did not grant that motion but again extended the time for discovery to April 15, 2010, and directed plaintiffs to file their expert medical reports by December 31, 2009, and their liability expert reports by January 31, 2010. Plaintiffs did not meet these deadlines.

After Pennwood filed another summary judgment motion, and Berry filed a motion seeking the same relief, plaintiffs sought a further extension of time for discovery. The denial of that motion was not a mistaken exercise of discretion because the trial court had repeatedly extended the time for discovery, and plaintiffs failed to provide the court with a suitable

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explanation for their failure to provide their expert reports within the times prescribed by the court. Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 168-69 (App. Div.), certif. denied, 200 N.J. 502 (2009).

V. Grinkevich argues that the court erred by granting summary

judgment in favor of Pennwood and Berry on her per quod claims. New Jersey recognizes a spouse's derivative claim for loss of consortium. Friedman v. Klazmer, 315 N.J. Super. 467, 469 (Law Div. 1998). However, our courts have not extended this cause of action to unmarried individuals, including engaged couples and unmarried cohabitants. See Childers v. Shannon, 183 N.J. Super. 591, 593 (Law Div. 1982). Grinkevich argues that the right to pursue a per quod claim should be extended to her because she and Lemma have allegedly been "longtime, live-in companions."

We decline to address Grinkevich's argument. Her per quod claim is a derivative claim. Here, the trial court dismissed the claims against the State, Pennwood and Berry. Plaintiffs have not challenged the dismissal of their claims against Berry, and we have concluded that the trial court correctly granted summary judgment to the State and Pennwood. Because Grinkevich's claims are also premised on the alleged negligence of these parties, her claims were properly dismissed as well.

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Affirmed.

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