NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9430-09.
Ronald M. Gutwirth argued the cause for appellant.
Christine G. Hanlon argued the cause for respondents (Archer & Greiner, P.C., attorneys; Ms. Hanlon, on the brief).
Before Judges Axelrad and Haas.
In this personal injury case, plaintiff Dante Metta appeals the December 2, 2011 order of the Law Division granting the municipal defendants' motion for summary judgment. He also appeals the court's March 30, 2012 order denying his motion for reconsideration and his motion for leave to amend his complaint and for an extension of the discovery period. After reviewing the record in light of the contentions advanced on appeal, we affirm.
We recite the record in the light most favorable to plaintiff, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff's girlfriend, Francesca Julian, was formerly married to Mark Andrews. Pursuant to a December 21, 2005 consent order entered in their divorce proceeding, Julian and Andrews agreed to exchange their daughter for parenting time at the Middletown Police Department. There is no competent evidence in the record to indicate the police department was ever made aware of the order. On September 5, 2008, Andrews went to the police station with a friend, Angelo Aceta, to pick up his then five-year-old daughter from Julian. At approximately 8:15 p.m., Andrews went into the station and asked the officer at the desk, Corporal Patricia Colangelo, to come outside to observe the exchange. She had never met Andrews before that evening.
Corporal Colangelo had previously sustained a shoulder injury and, therefore, she had been assigned to "modified duty, desk duty. So, we don't have any contact with any prisoners we are processing." She testified at the municipal hearing that an officer assigned to desk duty is responsible for "handling all walk in's." The officer explained that, in the case of a custody exchange, "[u]sually [the parents] come to the window and it is, can you go out in the parking lot to watch the exchange." There is no evidence in the record that the Middletown Township Police Department has any standard operating procedures (SOPs), rules, regulations, or guidelines for how officers are to handle custody exchanges or which officers may do so.
In response to his request, Corporal Colangelo accompanied Andrews outside. She brought a cell phone with her. She did not bring a radio, a weapon, or handcuffs.
Corporal Colangelo and Andrews left the building and crossed through a small parking area reserved for police cars. They then approached some steps that led up to another parking level, where visitors could park. At that point, Andrews told the officer he could see Julian sitting in her car at the other side of the lot taking pictures of them. At first, Corporal Colangelo could not see Julian, but she could see "flashes from the camera." The officer had never met either Julian or plaintiff before. Julian had brought plaintiff with her to the parenting time exchange. When she saw Andrews, Julian began videotaping him from her car.
Plaintiff got out of the car with Julian's daughter. They were about thirty feet away from the steps where Corporal Colangelo and Andrews were waiting. The DVD begins with plaintiff walking toward Andrews and Corporal Colangelo with the child. He held the child's hand as she walked on plaintiff's right side.
As plaintiff drew nearer to the top of the steps, the child began holding onto his leg and stepping behind him. Plaintiff and the child stopped near the top of the steps and Andrews and the officer remained at the bottom. A female passerby walked in from the right and began to approach the stairs to go down to the police station. As she did so, Andrews walked up the steps toward his daughter. At that point, the DVD shows plaintiff raising his arm and it appears he is ...