The opinion
NOT FOR PUBLICATION WITHOUT THE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-2494-23
JEFFREY S. FELD, ESQ.,
Plaintiff-Appellant,
v.
THE TOWNSHIP OF MILLBURN,
MAYOR TARA B. PRUPIS,
DEPUTY MAYOR RICHARD
WASSERMAN, COUNCILPERSON
DIANE THALL-EGLOW,
COUNCILPERSON MAGGEE
MIGGINS, COUNCILPERSON
SANJEEV VINAYAK, and
BUSINESS ADMINISTRATOR
ALEXANDER MCDONALD,
individually and in their
official capacities,
Defendants-Respondents.
______________________________
Argued May 14, 2025 – Decided August 28, 2025
Before Judges Rose, DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-5448-21.
Jeffrey S. Feld, appellant, argued the cause pro se.
Matthew J. Giacobbe argued the cause for respondents
(Cleary Giacobbe Alfieri Jacobs, LLC, attorneys;
Matthew J. Giacobbe, of counsel and on the brief; Mary
Anne Groh, on the brief).
PER CURIAM
Plaintiff Jeffrey S. Feld appeals from three Law Division orders in this
action in lieu of prerogative writs challenging the adoption of a bond ordinance
by the governing body of defendant Township of Millburn (Township) and
alleging civil rights claims. Plaintiff appeals: (1) the May 17, 2023 case
management order establishing a schedule for defendants' summary judgment
motion; (2) the September 22, 2023 order granting defendants' summary
judgment motion and dismissing the complaint with prejudice; and (3) the
March 5, 2024 order denying plaintiff's motion for reconsideration of the
September 22, 2023 order pursuant to Rule 4:49-2 and for relief from the
September 22, 2023 order pursuant to Rule 4:50-1(b), (c), and (d). We affirm.
I.
On June 1, 2021, Bond Ordinance 2579-21 (Bond Ordinance) was
introduced and offered for a first reading at a meeting of the Millburn Township
Committee (Committee). The Bond Ordinance authorized the Township to incur
indebtedness to finance capital improvements, including the construction of a
A-2494-23
2
September 11 memorial, the reconstruction of Short Hills Avenue, and the
removal of flex parking spaces on Millburn Avenue (the Flex Parking Project).
The Bond Ordinance also appropriated the funds to finance those improvements.
Defendant Tara B. Prupis, then mayor of the Township, owned and
operated a business on Millburn Avenue, in front of flex parking spaces. Under
the Township's form of government, Prupis also served as a member of the
Committee.
Before the close of the June 1, 2021 meeting, the Committee opened the
meeting for public comment on any matter, including the Bond Ordinance. As
reflected in the minutes of the meeting, plaintiff, a Township resident, addressed
the Committee.
On June 2, 2021, plaintiff requested information and documents from the
Township relating to the Bond Ordinance. On June 3, 2021, the Bond Ordinance
was published. On June 14, 2021, the Township gave plaintiff a supporting
supplemental debt statement relating to the Bond Ordinance. Plaintiff claimed
the information provided by the Township was incomplete.
At its June 15, 2021 meeting, the Committee offered the Bond Ordinance
for a second reading and opened the meeting for public comment. Comments
A-2494-23
3
from members of the public were limited to three minutes each. Plaintiff
questioned the basis for the three-minute limitation.
According to the minutes of the meeting, plaintiff made public comments
with respect to the Bond Ordinance. The minutes summarized plaintiff's
comments as follows:
Jeffrey Feld . . . stated his concerns on Ordinance 2579-
21. He offered several recommendations to the
Committee for consideration. He voiced his concern
[about] the removal of flex parking and asked if the
Committee members who owned businesses in the area,
where the flex parking was located, could vote on the
ordinance in question.
Although he did not provide a transcript of the meeting, plaintiff alleged
he questioned whether Prupis had a disqualifying conflict of interest relating to
the Flex Parking Project and if there would be an appearance of impropriety if
she voted on adoption of the Bond Ordinance. He also alleged he addressed the
following issues: (1) why the cost of the Flex Parking Project was not specially
assessed against Millburn Avenue property owners and businesses; (2) how the
cost of the Project had been determined; (3) whether the local elected officials
had a duty to respond to questions posed by members of the public on a second
reading of an ordinance; (4) the source of funding for the September 11
memorial; (5) other funding options for the capital improvements authorized in
A-2494-23
4
the Bond Ordinance; and (6) whether the Committee received a written legal
opinion regarding the validity of the Bond Ordinance.
The Committee thereafter unanimously adopted the Bond Ordinance, with
Prupis casting a vote in favor of adoption. Notice of the adoption of the Bond
Ordinance was published on June 24, 2021.
On July 13, 2021, plaintiff filed a complaint in lieu of prerogative writs
challenging the adoption of the Bond Ordinance. In addition to the Township
and Prupis, plaintiff named as defendants in their official and individual
capacities: (1) Deputy Township Mayor Richard Wasserman; (2) Committee
Member Dianne Thall-Eglow; (3) Committee Member Maggee Miggins; (4)
Committee Member Sanjeev Vinayak; and (5) Township Business
Administrator Alexander McDonald.
The complaint alleged five counts. In count one, plaintiff alleged the
Bond Ordinance was invalid because: (1) its adoption was arbitrary, capricious,
and ultra vires; (2) Prupis voted on the Bond Ordinance despite her disqualifying
conflict of interest pursuant to the Local Government Ethics Law (LGEL),
N.J.S.A. 40A:9-22.1 to -22.25; and (3) the cost of the Flex Parking Project
should have been financed as a special assessment on property owners and
businesses on Millburn Avenue.
A-2494-23
5
In count two, plaintiff alleged defendants "impair[ed] our robust
marketplace of competing ideas" by failing to provide the public with reasonable
notice and an opportunity to be heard before adopting the Bond Ordinance.
In count three, plaintiff alleged defendants engaged in a failure to
supervise. The factual predicate and legal basis for count three is unclear.
In count four, plaintiff alleged defendants' conduct constituted a "state
created danger." The factual predicate and legal basis for count four is unclear.
In count five, plaintiff alleged defendants violated his constitutional right
to engage in an exchange of ideas with the Committee prior to adoption of the
Bond Ordinance in violation of the New Jersey Civil Rights Act (NJCRA),
N.J.S.A. 10:6-1 to -2.
In addition, plaintiff, an attorney, alleged Prupis impugned his
professional reputation, character, integrity, and competence by calling him a
"misogynist" at the June 15, 2021 meeting. Finally, plaintiff alleged Prupis
instituted a policy of not permitting the public to comment at Committee
meetings until after the Committee had acted on its agenda items.1
1
According to plaintiff, in January 2022, a new mayor changed the policy to
permit public comment at Committee meetings prior to the Committee acting on
its agenda items.
A-2494-23
6
Plaintiff sought an order invalidating the Bond Ordinance and declaring:
(1) elected officials have a constitutional, statutory, and common law duty to
answer all questions raised "in a second reading public hearing on all legislative
discretionary ordinances"; (2) the three-minute limitation on public comments
at "second reading public hearing[s]" invalid; (3) defendants failed to give
plaintiff reasonable notice and an opportunity to be heard prior to adoption of
the Bond Ordinance; (4) all members of the public have a constitutional,
statutory, and common law right to "immediate access to a proposed ordi nance
and all its underlying supporting transactional documentation prior to the second
reading public hearing"; (5) all members of the public have a constitutional,
statutory, and common law right to be heard "on an agenda resolution action
item prior to consideration and official action"; (6) defendants violated their
constitutional, statutory, and common law fiduciary duties; and (7) awarding
plaintiff damages and attorney's fees.
Because plaintiff's complaint was pending, the Township did not issue
debt under the Bond Ordinance. The capital improvements identified in the
Bond Ordinance were completed without the need for the financing authorized
by that ordinance. At its March 7, 2023 meeting, the Committee adopted a
resolution canceling the appropriations authorized by the Bond Ordinance.
A-2494-23
7
On May 17, 2023, the court conducted a case management conference
during which plaintiff sought to conduct discovery, including depositions of
defendants. See R. 4:69-4 (providing the court in actions in lieu of prerogative
writs, unlike other Track IV cases, may determine "[t]he scope and time to
complete discovery, if any"). Defendants' counsel opposed the application,
arguing plaintiff's challenge to the Bond Ordinance could be decided based on
the minutes of the relevant Committee meetings. In the alternative, defense
counsel requested a proffer from plaintiff of the factual issues he intended to
address in discovery.
Plaintiff explained the nature of his claims to the court:
This is an adoption of an ordinance where I'm
challenging the validity of that ordinance. [A]nd that
question is ["]what is the record[?"]. When you look at
the record that they . . . made to approve it, they just
said we're adopting this bond ordinance, they didn't
answer the questions that I put on the record at (sic) that
date. And we have videos of that.
....
But this is a question about use of public monies and I
just think . . . the best way to start doing this, so we
have a clear record . . . that we at least get the discovery
requests served on the parties, and if there's questions
about protective orders . . . you handle that in the
process of the motion practice.
In response, the court proposed the following:
A-2494-23
8
Or maybe [a] way of approaching the whole discovery
issue – and when you say have a complete record,
[plaintiff], maybe the complete record would be this:
[Defendants' counsel] files her motion for
summary judgment and if there is some motion or
application for discovery, then a complete record would
be the litigant seeking that [discovery] lays out what
exactly is required, what they need, how that might
impact on the summary judgment with respect to the
issues that the summary judgment seeks to address, and
then the [c]ourt would have a complete – or be able to
make a decision on a complete record with . . . the
ability to look at and see how specific discovery
requests relate to a specific summary judgment motion
....
....
So, [plaintiff], why wouldn't the procedural . . . track
. . . that would provide for the most complete and fullest
record be to allow [defendants] to file [a] motion and
. . . if there is a cross-motion or a separate motion for
discovery, then the [c]ourt could look at the specific
issues that are being raised in the summary judgment
motion and have a way of saying whether or not the
[c]ourt finds that there [are] issues of fact that might
have to be addressed in discovery or otherwise?
In response to the court's inquiry, plaintiff replied, "Your Honor, I defer to you,
how you want to handle the matter."
At the conclusion of the case management conference, the court entered a
May 17, 2023 order establishing a schedule for submission and briefing of
defendants' summary judgment motion.
A-2494-23
9
Defendants subsequently moved for summary judgment. Although
plaintiff opposed the motion as premature asserting a need for nonspecific
discovery, he admitted all but one of the material facts in response to defendants'
statement of undisputed material facts. He did not cross-move to compel
discovery.
On September 22, 2023, the court issued an oral decision granting
defendants' motion. With respect to plaintiff's challenge to the Bond Ordinance
asserted in count one, the court concluded:
[T]he arguments advanced by [plaintiff] at oral
argument were . . . in . . . many respects, not matters
that really were addressed in the complaint. There . . .
was a lot of presentation by [plaintiff] . . . about . . .
matters . . . that even occurred subsequent to the time
the complaint was filed.
Similarly, the . . . counts about the [B]ond
[O]rdinance [are] not so much the issue because . . . the
statement of material facts that were admitted show[]
that there was the opportunity to speak with respect to
the ordinance.
....
It seemed there wasn't a basis to find that there
was some impairment or . . . some issues with respect
to the [B]ond [O]rdinance that would allow the [c]ourt
to have the first count go forward, which was voiding
the [B]ond [O]rdinance, both with respect to the
conflict of interest and with respect to the opportunity
to . . . be heard.
A-2494-23
10
With respect to the remaining counts of the complaint, the court
concluded:
Count [two] was impairment of the robust marketplace
[of] competing ideas, Count [three] was failure to
supervise, Count [four] was state created danger, and
five was civil rights violations.
....
[T]he [c]ourt agrees . . . with respect to those
other counts that the issues raised by [plaintiff] have
more to do with the statutory framework for public
meetings and . . . citizen participation, not with ones
that . . . on this motion record could be seen, even under
the summary judgment standard, as violative of
[plaintiff's] rights.
A September 22, 2023 order memorialized the court's decision, granted
defendants' motion for summary judgment, and dismissed the complaint with
prejudice.
On October 3, 2023, plaintiff moved for reconsideration of the September
22, 2023 order pursuant to Rule 4:49-2 and for relief from the September 22,
2023 order pursuant to Rule 4:50-1(b), (c), and (d). He sought an order: (1)
dismissing count one of the complaint on mootness grounds; (2) granting
summary judgment to defendant on counts two to five to the extent those counts
arise from or relate to the adoption of the Bond Ordinance, statements made by
defendants about plaintiff on June 15, 2021, and the denial of plaintiff's right to
A-2494-23
11
be heard on all non-ordinance agenda prior to consideration of those items by
the Committee; (3) stating "the trial court did not consider or rule on the
procedural due process and Whispering Woods validity of the July 30, 2021
[F]air [S]hare [H]ousing settlement under State law." 2
On March 5, 2024, the court issued an oral decision denying plaintiff's
motion. The court concluded count one was not moot because the Bond
Ordinance had not been rescinded by the Committee, even if the Township had
not incurred debt under the ordinance. That conclusion negated plaintiff's
request for relief in favor of defendants for most of his claims. The court also
concluded plaintiff did not establish grounds for relief under Rule 4:50-1(b), (c),
or (d).
A March 5, 2024 order memorialized the court's decision denying
plaintiff's motion. This appeal followed.
Plaintiff raises the following arguments.
2
This aspect of plaintiff's motion refers to the holding in Whispering Woods at
Bamm Hollow, Inc. v. Twp. of Middletown Planning Bd., 220 N.J. Super. 161,
173 (Law Div. 1987), which confirmed the authority of a local land use board
to settle disputes with an applicant that challenged, in an action in lieu of
prerogative writs, the board's denial of a development application. The Fair
Share Housing settlement to which plaintiff refers appears to be a settlement
involving Township and a developer. That settlement is not referenced in the
complaint and is not related to the Bond Ordinance or plaintiff's claims against
defendants.
A-2494-23
12
Point I.
The Trial Court Improperly Placed Its Thumbs Upon
the Scales of Justice.
Point II.
Defendants Obfuscated the Facts and the Law.
Point III.
Defendant Prupis Had a Disqualifying Flex Parking
Removal Conflict of Interest and Appearance of
Impropriety.
Point IV.
The Trial Court Committed a Series of Patently
"Manifestly Unjust" Reversible Errors and Omissions
Supporting Reconsideration, Vacation, Amendment
and Alteration of the September 22, 2023 Pre-
Discovery Dispositive Summary Judgment Dismissal
in Favor of All Defendants.
Point V.
The Doctrine of Mootness Applied Here.
Point VI.
The Doctrine of Equitable Estoppel and Turning Square
Corners Supported Reconsideration, Vacation,
Amendment and Alteration of the September 22, 2023
Pre-Discovery Dispositive Summary Judgment
Dismissal in Favor of All Defendants.
Point VII.
A-2494-23
13
The Trial Court Failed to Exercise its Powers and
Jurisdiction Under the Prerogative Writs Clause and
Rule 4:69-4.
II.
A. The May 17, 2023 Case Management Order.
We review a decision concerning the management of discovery for an
abuse of discretion. Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 87
(App. Div. 2007). "That is, '[w]e generally defer to a trial court's disposition of
discovery matters unless the court has abused its discretion or its determination
is based on a mistaken understanding of the applicable law.'" Pomerantz Paper
Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (quoting Rivers v. LSC
P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005) (alteration in original)).
We have reviewed the record and conclude the trial court did not
mistakenly exercise its discretion when it established a schedule for submission
of defendants' motion for summary judgment without a period of discovery. We
discern no abuse of discretion in the trial court's decision to deny plaintiff's
request for discovery. Plaintiff filed a complaint in lieu of prerogative writs ,
and such actions are generally limited to the record created before a municipal
board or council. See Willoughby v. Plan. Bd. of Deptford, 306 N.J. Super. 266,
273-74 (App. Div. 1997); see also R. 4:69-4.
A-2494-23
14
Here, the motion court, with plaintiff's consent, permitted him to cross-
move in response to defendants' summary judgment motion to compel any
discovery he deemed necessary. Plaintiff, however, did not do so. In fact, in
response to defendants' statement of material facts not in dispute, plaintiff
contested only one: that "Defendant Prupis never used the word misogynist"
when describing plaintiff at the June 15, 2021 Committee meeting. Plaintiff
offered no evidence supporting his claim that Prupis departed from the written
statement she read at the meeting, which did not contain the word misogynist,
when discussing plaintiff. In addition, whether Prupis described plaintiff as a
misogynist was not material to the claims alleged in the complaint. Plaintiff did
not allege a claim for defamation against Prupis. The exact content of Prupis's
statement about plaintiff, therefore, was not relevant.
B. The September 22, 2023 Order
Granting Summary Judgment.
We review a grant of summary judgment de novo, applying the same
standard as the motion court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That
standard requires us to "determine whether '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.'" Branch
A-2494-23
15
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).
"Summary judgment should be granted . . . 'against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the motion court's legal
analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).
Self-serving assertions that are unsupported by evidence are insufficient
to create a genuine issue of material fact. Miller v. Bank of Am. Home Loan
Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015). "Competent
opposition requires 'competent evidential material' beyond mere 'speculation'
and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.
415, 426 (App. Div. 2009). We review the record "based on our consideration
of the evidence in the light most favorable to the parties opposing summary
judgment." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523-24 (1995).
Municipal ordinances are presumed valid, and the presumption of validity
may not be overcome unless the ordinance is "clearly arbitrary, capricious or
unreasonable." Berardo v. City of Jersey City, 476 N.J. Super. 341, 355 (App.
A-2494-23
16
Div. 2023) (quoting Riggs v. Twp. of Long Beach, 109 N.J. 601, 610-11 (1988)).
The party challenging the ordinance "bears the burden of overcoming the
presumption." Riggs, 109 N.J. at 611 (citing Ward v. Montgomery Twp., 28
N.J. 529, 539 (1959)). A "[r]eviewing court[] should not be concerned over the
wisdom of an ordinance" and "[i]f debatable, the ordinance should be upheld."
Blackridge Realty, Inc. v. City of Long Branch, 481 N.J. Super. 183, 194 (App.
Div. 2025) (quoting Griepenburg v. Twp. of Ocean, 220 N.J. 239, 253 (2015)
(internal quotations omitted)).
Thus, "[t]he proper scope of judicial review is not to suggest a decision
that may be better than the one made by the [Township], but to determine
whether the [Township] could reasonably have reached its decision on the
record." Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005). We do
not substitute our judgment for that of the municipality unless there is a clear
abuse of discretion. Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013).
We agree with the motion court's conclusion defendants did not deny
plaintiff an opportunity to address the Bond Ordinance at the June 1, 2021 and
June 15, 2021 Committee meetings. The record unequivocally established
plaintiff spoke at both meetings. He cites no legal precedent, and we have found
none, for the proposition that members of the Committee were required to permit
A-2494-23
17
him to speak prior to their acting on any item on its agenda or to engage in a
colloquy with plaintiff.
Nor did plaintiff establish Prupis had a conflict of interest or appearance
of impropriety disqualifying her from voting on the Bond Ordinance. The LGEL
creates a statutory code of ethics that governs when a disqualifying conflict of
interest arises for a local government official. See Piscitelli v. City of Garfield
Zoning Bd. of Adjustment, 237 N.J. 333, 349-50 (2019); Grabowsky v. Twp. of
Montclair, 221 N.J. 536, 552-53 (2015). "The overall objective 'of conflict of
interest laws is to ensure that public officials provide disinterested service to
their communities' and to 'promote confidence in the integrity of governmental
operations.'" Piscitelli, 237 N.J. at 349 (quoting Thompson v. City of Atl. City,
190 N.J. 359, 364 (2007)).
The statute provides:
No local government officer or employee shall act in
his [or her] official capacity in any matter where he [or
she], a member of his [or her] immediate family, or a
business organization in which he [or she] has an
interest, has a direct or indirect financial or personal
involvement that might reasonably be expected to
impair his [or her] objectivity or independence of
judgment.
[N.J.S.A. 40A:9-22.5(d).]
A-2494-23
18
See also N.J.S.A. 40A:9-22.2 (setting forth the Legislature's declarations
concerning the duties of local government officials).
"We must construe N.J.S.A. 40A:9-22.5(d) to further the Legislature's
expressed intent that '[w]henever the public perceives a conflict between the
private interests and the public duties of a government officer,' 'the public's
confidence in the integrity' of that office is 'imperiled.'" Piscitelli, 237 N.J. at
351 (alteration in original) (quoting N.J.S.A. 40A:9-22.2(b) to (c)).
Disqualification is required when a public official has (1) a direct pecuniary
interest; (2) an indirect pecuniary interest; or (3) a direct personal interest
sufficient to justify disqualification. Grabowsky, 221 N.J. at 553 (quoting
Wyzykowski v. Rizas, 132 N.J. 509, 525 (1993)).
"'[A] court's determination "whether a particular interest is sufficient to
disqualify is necessarily a factual one and depends upon the circumstances of
the particular case."'" Piscitelli, 237 N.J. at 353 (quoting Grabowsky, 221 N.J.
at 554). "A conflicting interest arises when the public official has an interest
not shared in common with the other members of the public." Wyzykowski, 132
N.J. at 524. Accordingly, "[t]he ethics rules must be applied with caution, as
'[l]ocal governments would be seriously handicapped if every possible interest,
no matter how remote and speculative, would serve as a disqualification of an
A-2494-23
19
official.'" Grabowsky, 221 N.J. at 554 (second alteration in original) (quoting
Wyzykowski, 132 N.J. at 523). "It is essential that municipal offices be filled
by individuals who are thoroughly familiar with local communities and
concerns." Ibid. Consequently, conflict-of-interest rules "do not apply to
'remote' or 'speculative' conflicts because local governments cannot operate
effectively if recusals occur based on ascribing to an official a conjured or
imagined disqualifying interest." Piscitelli, 237 N.J. at 353.
In support of his argument, plaintiff relies on Prupis's ownership and
operation of a business on Millburn Avenue adjacent to the flex parking spaces.
He produced no evidence that removal of those spaces would directly benefit
Prupis's business or, any such benefit, if it existed, would not be shared with
other members of the community, including the other businesses on Millburn
Avenue. The record is void of evidence of how removal of parking spaces would
constitute a direct, individual benefit to Prupis or her business disqualifying her
from voting on adoption of the Bond Ordinance.3
3
Plaintiff alleges Prupis received a campaign contribution from the owner of
the building in which her business is located after adoption of the Bond
Ordinance. The contribution is not alleged in the complaint and plaintiff offers
nothing but his speculation to connect the alleged contribution to Prupis's
participation in the adoption of the Bond Ordinance.
A-2494-23
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With respect to plaintiff's NJCRA claim, the statute provides, in relevant
part:
Any person who has been deprived of any substantive
due process or equal protection rights, privileges or
immunities secured by the Constitution or laws of the
United States, or any substantive rights, privileges or
immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those
substantive rights, privileges or immunities has been
interfered with or attempted to be interfered with . . . by
a person acting under color of law, may bring a civil
action for damages and for injunctive or other
appropriate relief.
[N.J.S.A. 10:6-2(c).]
The NJCRA, which was modeled on 42 U.S.C. § 1983, created a private
cause of action for violations of civil rights secured by the federal and New
Jersey Constitutions. Tumpson v. Farina, 218 N.J. 450, 474 (2014); Rezem Fam.
Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 115 (App. Div. 2011).
Thus, in interpreting the NJCRA, New Jersey courts often look to federal cases
analyzing § 1983. See Farina, 218 N.J. at 474 (cases applying "[§] 1983 may
provide guidance in construing our Civil Rights Act").
As noted above, we agree with the motion court's conclusion plaintiff
failed to establish defendants violated his right to speak at the Committee's
meetings and did not establish a constitutional or statutory right to engage in a
A-2494-23
21
colloquy with Committee members. He, therefore, did not establish a violation
of the NJCRA.
C. The March 5, 2024 Order.
Rule 4:49-2 provides:
Except as otherwise provided by R. 1:13-1 (clerical
errors), a motion for rehearing or reconsideration
seeking to alter or amend a judgment or final order shall
. . . state with specificity the basis on which it is made,
including a statement of the matters or controlling
decisions which counsel believes the court has
overlooked or as to which it has erred, and shall have
annexed thereto a copy of the judgment or final order
sought to be reconsidered and a copy of the court’s
corresponding written opinion, if any.
"A motion for reconsideration . . . is a matter left to the trial court's sound
discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane
Morris LLP, 202 N.J. 79, 87 (2010)); see also Cummings v. Bahr, 295 N.J.
Super. 374, 389 (App. Div. 1996). A party may move for reconsideration of a
court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based
its decision on "a palpably incorrect or irrational basis," (2) the court either
failed to consider or "appreciate the significance of probative, competent
evidence," or (3) the moving party is presenting "new or additional information
. . . which it could not have provided on the first application . . . ." Id. at 384
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)). The
A-2494-23
22
moving party must "initially demonstrate that the [c]ourt acted in an arbitrary,
capricious, or unreasonable manner, before the [c]ourt should engage in the
actual reconsideration process." D'Atria, 242 N.J. Super. at 401.
A motion for reconsideration is not an opportunity to "expand the record
and reargue a motion. [It] is designed to seek review of an order based on the
evidence before the court on the initial motion, . . . not to serve as a vehicle to
introduce new evidence in order to cure an inadequacy in the motion record."
Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super. 299, 310 (App.
Div. 2008).
Rule 4:50-1 sets forth the grounds on which a party may be relieved from
a final judgment. The Rule provides, in relevant part:
On motion, with briefs, and upon such terms as are just,
the court may relieve a party or the party’s legal
representative from a final judgment or order for the
following reasons: . . . (b) newly discovered evidence
which would probably alter the judgment or order and
which by due diligence could not have been discovered
in time to move for a new trial under R. 4:49; (c) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party; [and] (d) the judgment or order is void . . . .
[R. 4:50-1.]
An application to set aside an order pursuant to Rule 4:50 is addressed to
the motion judge's sound discretion, which should be guided by equitable
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principles. Hous. Auth. of Town of Morristown v. Little, 135 N.J. 274, 283
(1994). A trial court's determination under Rule 4:50-1 is entitled to substantial
deference and will not be reversed in the absence of a clear abuse of discretion.
US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). To warrant
reversal of the court's order, the movant must show that the decision was "made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis." Ibid. (quoting Iliadis v. Wal-Mart Stores,
Inc., 191 N.J. 88, 123 (2007) (internal quotations omitted)).
To obtain relief under subsection (b), the newly discovered evidence must
be: (1) material to the issue and not merely cumulative and impeaching; (2)
discovered after entry of the order that is the subject of the motion; and (3) of
such a nature as to likely change the result. DEG, LLC v. Twp. of Fairfield, 198
N.J. 242, 264 (2009). Under subsection (c), "[f]raud is not presumed; it must be
proven through clear and convincing evidence." Stochastic Decisions, Inc. v.
DiDomenico, 236 N.J. Super. 388, 395 (App. Div. 1989) (citing Albright v.
Burns, 206 N.J. Super. 625, 636 (App. Div. 1986)). Subsection (d) requires the
movant to establish the order that is the subject of the motion is void. Jameson
v. Great Atl., 363 N.J. Super. 419, 425 (App. Div. 2003).
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Having reviewed the record, we find no mistaken exercise of the court's
discretion in its denial of plaintiff's motion for reconsideration of, or relief from,
the September 22, 2023 order. Plaintiff's motion repeated many of the
arguments rejected by the court on defendants' summary judgment motion and
focused on developments that took place after the filing of the complaint that
were tangentially related to plaintiff's claims or irrelevant.
To the extent we have not specifically addressed any of plaintiff's
remaining arguments, we conclude they either concern issues outside the
pleadings, were not raised below, or lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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