On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8030-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 15, 2010
Before Judges Axelrad and J. N. Harris.
Plaintiff Miguel Alvarado appeals from summary judgment dismissal of his complaint against defendants, Officer Jessica DeJesus, her employer, Perth Amboy Police Department ("Police Department") and the City of Perth Amboy ("City"), and the Middlesex County Improvement Authority, owner of the patrol car, for injuries sustained when the officer's vehicle struck the parked car in which plaintiff was sitting. The judge found defendants immune from liability under the Tort Claims Act (TCA), N.J.S.A. 59:3-3, which states that "[a] public employee is not liable if he [or she] acts in good faith in the execution or enforcement of any law." Plaintiff also appeals from denial of his motion for reconsideration in which he sought, in part, to submit eyewitness statements obtained both after the discovery end date and the grant of summary judgment. We affirm.
Viewed most favorably for plaintiff, Brill v. Guardian Life Insurance Co. of Am., 142 N.J. 520, 523 (1995), the motion record reveals the following. On the evening of September 23, 2005, plaintiff was sitting in his parked car on Herbert Street in Perth Amboy and speaking to Jose Ramos, who had just exited plaintiff's vehicle. A patrol car driven by Officer DeJesus turned right from Smith Street onto Herbert Street on wet pavement, lost traction and skidded, spun around three times, and the rear struck the front of plaintiff's parked vehicle and then a utility pole. The responding officer issued no ticket, noting on his report that the wet road was the main contributing factor of this accident. Plaintiff apparently suffered serious personal injuries as a result of the impact and filed a timely Notice of Tort Claim. See N.J.S.A. 59:8-4.
On September 20, 2007, plaintiff commenced this Tort Claims action, seeking damages due to the alleged negligence of DeJesus.*fn1 Plaintiff testified in his deposition that Officer DeJesus' patrol car had its overhead lights on, although not the siren, and he estimated the officer was driving approximately fifty-five miles per hour. Plaintiff further stated that "from what [he] heard," the officer was "going towards a fight." He elaborated that "[t]here was a fight on Market Street and prior to the accident a car went by real fast, another police car, towards Market Street." Officer DeJesus' statements noted in the police report and contained in her interrogatory answers similarly reflected that she was responding to a dispute at 215 Grant Street involving approximately fifteen people.
Mutual depositions for plaintiff and Officer DeJesus had been scheduled for August 20, 2008, before the expiration of the initial discovery period. According to defense counsel, the depositions were adjourned notwithstanding his having informed plaintiff's counsel that Officer DeJesus would not be available again until mid-November due to job training activities with her new employer, the Secret Service. Based primarily on the officer's unavailability, the court granted the parties' joint motion to extend discovery by order of November 7, 2008, which required all depositions to be completed by November 30, 2008, and set a new discovery end date of January 31, 2009. Plaintiff never rescheduled the officer's deposition for November or any subsequent date and never filed a motion to compel her deposition. An arbitration was conducted on February 13, 2009, after which defendants filed a demand for trial de novo. Trial was scheduled for June 1, 2009.
On February 25, 2009, defendants filed a motion for summary judgment and plaintiff filed a response and cross-motion to strike defendants' answers and affirmative defenses for failing to produce the officer for depositions. Following oral argument on April l7, 2009, Judge Edward Ryan granted summary judgment in favor of defendants, finding that while Officer DeJesus may have been negligent in the operation of her vehicle, "it [wa]s clear [she] was acting in an objectively reasonable manner when she responded to an emergency situation on [the accident date]," and thus good faith immunity attached pursuant to N.J.S.A. 59:3-3, as interpreted in Canico v. Hurtado, 144 N.J. 361, 365-66 (1996). By separate order of the same date, the judge then denied, without prejudice, plaintiff's motion to suppress defendant's pleadings, finding the issue to be moot.
Plaintiff belatedly amended his answers to interrogatories by listing two eyewitnesses and annexing their affidavits, supplying sixteen new photographs, and providing a July 2005 newsletter from the Union County Prosecutor's Office, evidencing DeJesus' recent graduation from the police academy. In particular, the May 6, 2009 affidavits of Ramos, who had been a passenger in plaintiff's car immediately preceding the accident, and Moises Pinero, an employee of a business located near the intersection of Smith and Herbert Streets, reported they observed Officer DeJesus speeding with no lights or sirens, abruptly turn onto Herbert Street and both opined her driving was "reckless." Relying on these newly-identified discovery materials, plaintiff moved for reconsideration of both orders. Following oral argument on June 12, 2009, and order of that date, the judge denied reconsideration, finding plaintiff's submissions to be untimely. This appeal ensued.
On appeal, plaintiff argues: (1) it is debatable whether Officer DeJesus was reckless; (2) the judge should have granted plaintiff's motion to strike based on the failure of Officer DeJesus to appear at depositions, which prejudiced his case by depriving him of the ability to obtain information about her training and experience; and (3) on reconsideration, the judge should have considered the eyewitness affidavits because pursuant to Rule 4:17-7, defense counsel acquiesced in the submission of the supplementing interrogatories by not filing a motion objecting to the submission.
Based on our review of the record and the briefs and oral arguments of counsel, we find unpersuasive all of plaintiff's arguments and affirm substantially for the reasons articulated by the motion judge. We add the following comments.
The record is devoid of any evidence that Officer DeJesus refused to attend depositions and thus no sanctions were warranted against defendants. Plaintiff was aware Officer DeJesus would be unavailable until mid-November as a result of her Secret Service training out-of-state. Plaintiff never attempted, by notice or court order, to secure the officer's deposition during the extended discovery period.
Pursuant to Rule 4:46-2, summary judgment must be 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." "Bare conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. l961). When reviewing summary judgment, we use the same standard as the trial court, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, l54 N.J. 608 (1998), and do not ...