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NOT FOR PUBLICATION WITHOUT THE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-2648-17T1
WINBERRY REALTY
PARTNERSHIP, JOHN
WINBERRY, MARY
LOURDES WINBERRY,
CELESTE WINBERRY,
and GREGORY WINBERRY,
Plaintiffs-Appellants,
v.
BOROUGH OF RUTHERFORD,
and CARYN MILLER, in her
official and individual capacities,
Defendants-Respondents,
and
STEVEN KRISCH, in his
individual capacity,
Defendant.
Argued March 6, 2019 – Decided May 31, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-7126-10.
Bruce D. Greenberg argued the cause for appellants
(Lite DePalma Greenberg, LLC, attorneys; Bruce D.
Greenberg, on the briefs).
Kathy A. Kennedy argued the cause for respondents
(Hanrahan Pack, LLC, attorneys; Thomas B. Hanrahan,
of counsel and on the brief; Kathy A. Kennedy, on the
brief).
PER CURIAM
Plaintiffs Winberry Realty Partnership (the Partnership), John Winberry
(Winberry), Mary Lourdes Winberry, Celeste Winberry, and Gregory Winberry,
on July 22, 2010, filed a complaint against defendants, the Borough of
Rutherford and Caryn Miller, in her official and individual capacity, 1 alleging
six different causes of action for damages arising from Miller's refusal to
calculate the payoff figure in satisfaction of a tax sale certificate and foreclosure
judgment on the Partnership's property. It is difficult to understand how this has
occurred, but in the intervening nine years the matter has never even been listed
for trial. The complaint was dismissed once with prejudice for the Partnership's
failure to comply with discovery requests—an order we reversed—and summary
judgment was then granted to defendants—an order also reversed on appeal. We
1
Steven Krisch was dismissed from the case in 2011.
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2
now again reverse the trial court's grant of summary judgment. The judge
seemingly applied a mistaken notion of the conduct necessary in order to strip
qualified immunity from a public official.
The reader is referred to the two prior unpublished opinions for a more
detailed description of events leading to this decision. Winberry Realty P'ship
v. Borough of Rutherford, No. A-3846-13 (App. Div. May 4, 2016) (hereafter
Winberry II); Winberry Realty P'ship v. Borough of Rutherford, No. A-5760-11
(App. Div. Aug. 9, 2013) (hereafter Winberry I).
Suffice it to say for our purposes that defendant's second application for
summary judgment, which resulted in this appeal, was made on virtually the
same basis as the first, and granted on virtually the same basis as the first. This
despite the fact that post-discovery, it is abundantly clear that there are disputes
of material fact that mandate the matter be decided by a jury.
On July 23, 2008, Winberry called Miller to obtain the payoff amount, so
the Partnership could redeem the tax sale certificate and vacate the judgment on
its property. July 23 was the day before final judgment would enter in the tax
sale foreclosure matter.
When deposed, Winberry testified that when he called the Borough Tax
Office, Miller told him she could not provide the payoff figure because she did
A-2648-17T1
3
not have the time that day. Winberry asked for the per diem rate so that he could
calculate the amount himself—but Miller said she had no time for that. After
Winberry offered to pay any amount in order to redeem, Miller asked him why
the outstanding amount had not been paid earlier, before telling him that she did
not have the authority to accept the money regardless because the deadline had
already passed.
In Miller's interrogatory answers, she said her recollection was limited,
but that she could not help Winberry because the figures were unavailable. She
denied telling Winberry that he could not pay an amount in excess of the lien,
or hearing him say that he could pay the entire amount owed. According to her
"limited recollection," she could not help Winberry redeem the property because
she did not have the figures available: "[Winberry] had contacted my office
seeking information concerning the redemption of the [p]roperty. I had
informed [Winberry] that I was unable to provide him with the information he
sought at that time. I do not recall anything further."
At deposition, while reiterating that she could not remember the relevant
events, Miller explained that she had developed her own policy for the
redemption of property by delinquent tax owners. The policy required the
applicant to submit the request in writing, allowing Miller time to prepare the
A-2648-17T1
4
figures. She would then contact the lienholder to ensure that all parties were in
agreement. Miller could not remember if she had informed Winberry of this
policy during their phone conversation. She also admitted that the software in
her office provided payoff information within minutes.
Nearly a year later, once the Partnership retained counsel, it successfully
applied to vacate the final foreclosure judgment and redeemed the tax sale
certificate. This complaint followed.
In rendering his decision granting defendants' summary judgment, the
judge said:
Miller performed her duties as the Borough's Tax
Collector in an objectively reasonable manner and
therefore enjoy[ed] qualified immunity. No
information supplied by the [p]laintiffs since this
matter has been remanded has shown that . . . Miller
acted in an unreasonable manner. . . . There is no
evidence that the denial was a malicious, intentional act
so as to pierce the qualified immunity . . . .
This court is also unconvinced that the existence of an
informal policy to check with the lienholder's attorney
or representative before the generation of a payoff
figure rises to the level of an unreasonable, intentional,
or malicious action required to pierce immunity, let
alone a Borough policy which has systematically
resulted in the deprivation of civil rights.
....
A-2648-17T1
5
In sum, the [p]laintiffs have failed, despite their
opportunity to conduct additional discovery for over a
year, to show any facts which would abrogate the
immunity generally enjoyed by the [d]efendants in this
case, and would thus create a genuine issue of material
fact. Thus, the court must grant the [d]efendants'
motion for summary judgment and deny the [p]laintiffs'
cross-motion.
On appeal, the Partnership raises the following points:
POINT I
THE LAW DIVISION WRONGLY DISREGARDED
THIS COURT’S PREVIOUS OPINION HOLDING
THAT GENUINE ISSUES OF MATERIAL FACT
PRECLUDED SUMMARY JUDGMENT BASED ON
QUALIFIED IMMUNITY.
POINT II
EVEN IF THIS COURT HAD NOT ALREADY
RULED THAT MR. WINBERRY'S TESTIMONY BY
ITSELF CREATED GENUINE ISSUES OF
MATERIAL FACT, THE RECORD ON REMAND
ESTABLISHED THAT THERE WERE SUCH
GENUINE ISSUES, WHICH PRECLUDED
SUMMARY JUDGMENT.
A. The Law Division Erred in
its Treatment of the Facts.
B. The Law Division Erred in
[i]ts Application of the Law.
POINT III
THE SUMMARY JUDGMENT IN FAVOR OF THE
BOROUGH SHOULD BE REVERSED, BECAUSE
THE TAX COLLECTOR'S ACTIONS AGAINST
PLAINTIFFS EMBODIED A POLICY OF THE
A-2648-17T1
6
BOROUGH FOR WHICH THE BOROUGH IS
LIABLE UNDER THE FEDERAL AND NEW
JERSEY CIVIL RIGHTS ACTS.
POINT IV
THE LAW DIVISION ERRED IN FAILING TO
GRANT PLAINTIFFS' CROSS-MOTION FOR
SUMMARY JUDGMENT ON LIABILITY.
POINT V
THE LAW DIVISION ERRED IN FAILING TO
GRANT PLAINTIFFS' MOTION TO COMPEL
DISCOVERY.
I.
The judge's factual and legal determination, based on competing answers
in discovery, that Miller was immune because she acted reasonably and without
malice had no foundation in the law. Furthermore, he did not view the evidence
in favor of the non-moving party, as he was required to do on a motion for
summary judgment. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
540 (1995).
"Qualified immunity is a doctrine that shields government officials from
a suit for civil damages when 'their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.'" Gormley v. Wood-El, 218 N.J. 72, 113 (2014) (emphasis added)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, qualified
A-2648-17T1
7
immunity may shield an officer from liability if the officer "reasonably believes
that his or her conduct complies with the law." Pearson v. Callahan, 555 U.S.
223, 244 (2009).
The doctrine's applicability may also depend on the distinction bet ween a
public official's discretionary and ministerial acts. Harlow, 457 U.S. at 816. An
act is considered ministerial if it is performed "to the mandate of legal authority,
without regard to or the exercise of . . . [discretion] upon the propriety of the act
being done." Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485, 502
(App. Div. 2013) (quoting Morey v. Palmer, 232 N.J. Super. 144, 151 (App.
Div. 1989)).
"Whether an official is covered by qualified immunity is a matter of law
to be decided by a court, 'preferably on a properly supported motion for
summary judgment or dismissal.'" Gormley, 218 N.J. at 113 (quoting Wildoner
v. Borough of Ramsey, 162 N.J. 375, 387 (2000)). Moreover, there is no
presumption of qualified immunity; rather, the immunity is considered "an
affirmative defense that the defendant must establish." Schneider v. Simonini,
163 N.J. 336, 354 (2000).
To begin, Miller's informal policy was objectively unreasonable. It was
her statutory, ministerial obligation to provide the information Winberry
A-2648-17T1
8
requested without delay or consultation with the purchasers of the tax sale
certificate. Certainly, the statute states that a request for redemption calculation
be made in writing. See N.J.S.A. 54:5-54. But Miller never informed Winberry
that he needed to submit his request in writing, nor was that the reason she
denied his request. She denied his request because she was implementing a
policy that she developed and instituted on her own, without statutory authority
to do so. According to Winberry, she responded to his inquiry by telling him
she did not have the time to help, and she refused to accept any sum of money
for redemption.
Miller's "discretionary policy" thus ran afoul of the Partnership's right to
redeem its property pursuant to N.J.S.A. 54:5-54, not to mention the court order
in the tax foreclosure matter. Rather than assisting Winberry, she put him off
without providing him with the information it was her job to provide.
As we said in our prior decision reversing summary judgment in this
matter, "[i]f, as Winberry asserts, Miller refused to timely redeem the tax sale
certificate — not during the specific phone call, but at all — notwithstanding
Winberry's established right to do so, then the doctrine of qualified immunity
would not be available to her." Winberry II, slip op. at 14. To have refused
Winberry's request when her computer could produce the requested figure
A-2648-17T1
9
within minutes was patently and objectively unreasonable. See Pearson, 555
U.S. at 244.
Furthermore, once the Partnership elected to exercise the legal right to
redemption, any obstruction created by a public official's failure to fulfill her
ministerial duties was inherently unreasonable. The issue of whether qualified
immunity exists is ordinarily best reserved for summary judgment. In this case,
however, the disputed material facts raise questions of who to believe and what
to believe, best left to a factfinder. See Gormley, 218 N.J. at 113.
None of the exceptions to the doctrine of qualified immunity applied here.
As a tax collector charged with knowing the law and fulfilling her ministerial
duties, Miller should have known, assuming Winberry's facts are considered to
be true, that her conduct violated the Partnership's rights.
Defendants argue that Miller's refusal to assist was protected by qualified
immunity in part because it was discretionary conduct. This argument is
incorrect.
An act is considered ministerial if it is performed "to the mandate of legal
authority, without regard to or the exercise of . . . [discretion] upon the propriety
of the act being done." Henebema, 430 N.J. Super. at 502 (quoting Morey, 232
N.J. Super. at 151). Although Miller would have a general claim for immunity
A-2648-17T1
10
if her action had truly been discretionary, her refusal to permit Winberry to
redeem conflicted with her ministerial obligations, which she chose to disregard
in favor of her informal policy. Winberry was legally entitled to an answer
within a reasonable time. Thus, her decision to disregard the law was not
discretionary.
II.
The Partnership next contends that the Borough is liable through the
actions and policies of Miller. More specifically, because Miller's informal
policy of contacting the lienholder prior to providing a redemption figure
violated the Tax Sale Law and the Partnership's rights under 42 U.S.C. § 1983
and N.J.S.A. 10:6-2, the Borough should also be liable. A government entity,
however, cannot be held liable for the actions of its employees purely under the
theory of respondeat superior. Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S.
658, 694 (1978); Bayer v. Twp. of Union, 414 N.J. Super. 238, 270 (App. Div.
2010).
Two Civil Rights Acts are pertinent to this appeal. First, "[g]enerally
speaking, [42 U.S.C. § 1983] provides a cause of action in state or federal courts
to redress federal constitutional and statutory violations by state officials."
GMC v. City of Linden, 143 N.J. 336, 341 (1996). Thus, in order to allege a
A-2648-17T1
11
claim under to 42 U.S.C. § 1983, a plaintiff must show "a violation of a right
secured by the Constitution or laws of the United States committed by a person
acting under color of state law." Bernstein v. State, 411 N.J. Super. 316, 335
(App. Div. 2010) (citing Kollar v. Lozier, 286 N.J. Super. 462, 473 (App. Div.
1996)).
A state official acting within an official capacity "is immune from § 1983
damages-liability," as the official is not considered a "person" under the statute.
Id. at 336 (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)).
A local governmental entity, on the other hand, is deemed a person under the
statute if the alleged unconstitutional action was implemented, executed, or
adopted by its officers. Monell, 436 U.S. at 690; Bayer, 414 N.J. Super. at 270.
There is no action, however, for wrongs committed by State employees "solely
on a theory of respondeat superior." Bayer, 414 N.J. Super. at 270. Rather,
municipal liability is reserved for when "execution of a government's policy or
custom . . . inflicts the injury that the government as an entity is responsible
[for] under § 1983." Monell, 436 U.S. at 694.
Second, analogous to 42 U.S.C. § 1983, the New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 to -2, was adopted "for the broad purpose of assuring a state law
cause of action for violations of state and federal constitutional rights and to fill
A-2648-17T1
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any gaps in state statutory anti-discrimination protection." Ramos v. Flowers,
429 N.J. Super. 13, 21 (App. Div. 2012) (quoting Owens v. Feigin, 194 N.J. 607,
611 (2008)). The Act contains two types of claims, one for any deprivation of
a right, and another for when rights are "interfered with, by threats, intimidation
or coercion by a person acting under color of law[.]" Ibid. (quoting N.J.S.A.
10:6-2(c)).
It is undisputed that the Parnership was initially deprived of the right to
redemption under N.J.S.A. 54:5-54. This deprivation was committed by Miller,
a government official acting under color of law. See Bernstein, 411 N.J. Super.
at 335. For this reason alone, the Parnership submits that the Borough is liable
for Miller's actions. But the Borough itself is not liable because it did not inflict
injury as an entity, had no knowledge of it, or participation in it. See Monell,
436 U.S. at 690; Bayer, 414 N.J. Super. at 270. Miller's policy was not the
Borough's policy, thus the Borough should not be held vicariously liable.
III.
The Parnership argues that because there is no genuine issue of material
fact that defendants deprived it of the statutory right of redemption, a summary
judgment as to liability is warranted. But the facts relied upon for liability come
from interrogatory answers and depositions from witnesses in which the
A-2648-17T1
13
circumstances are in dispute. Because the issue of liability remains factually
contested, summary judgment would have been improper and was correctly
denied to the Partnership at this stage.
Motions for summary judgment are reserved for circumstances where
"there is no genuine issue as to any material fact challenged" and the moving
party is entitled to judgment "as a matter of law." R. 4:46-2(c). In considering
a motion for summary judgment, the judge must determine whether "the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Brill,
142 N.J. at 540.
Depositions may be utilized to decide whether a genuine issue of material
fact exists. See R. 4:46-2(c). Here, the Partnership points to Winberry's
deposition as definitive proof that Miller was liable, and further suggest that
because the Partnership had an established right to redeem the property, the only
question left to the court is whether Miller's action was objectively reasonable.
Just because Miller could not recall certain events, does not definitively prove
those events occurred as the Partnership perceived them. Viewing the evidence
A-2648-17T1
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in favor of the non-moving party does not nullify the conflicts of fact. See Brill,
142 N.J. at 540. Liability cannot be ruled on given this record.
IV.
Finally, the Partnership contends that their motion to compel discovery
should not have been dismissed as moot. The discovery request concerns a
questionnaire that Winberry completed for defendants' expert, who then
generated a report. That report was provided to the Partnership, and it had,
according to the record on appeal, notice that if they did not inform the expert
that they wanted a copy of the questionnaire, it would be destroyed in the
ordinary course.
This motion to compel was made after the expiration of the discovery
period and after the Partnership was advised that the document would be
destroyed if not earlier requested. Since the request was made almost a year
after the discovery period and the Partnership has a copy of the full report, the
motion was properly dismissed for reasons other than being moot.
To summarize, we affirm summary judgment granted to the Borough,
reverse summary judgment granted to Miller, as there are disputed material facts
that did not approximate establishing that she engaged in a discretionary act, and
A-2648-17T1
15
we affirm the order denying additional discovery and for discovery sanctions.
The matter will be returned for trial and scheduled promptly.
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16