RAYMOND L. CAPRA VS. SETON HALL UNIVERSITY (L-0891-18, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4053-18T2

RAYMOND L. CAPRA,

Plaintiff-Appellant,

v.

SETON HALL UNIVERSITY,

an educational corporation of

New Jersey,

Defendant-Respondent.

__________________________

Submitted May 11, 2020 – Decided June 4, 2020

Before Judges Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law

Division, Essex County, Docket No. L-0891-18.

Rabner, Baumgart, Ben-Asher & Nirenberg, PC, and S.

Micah Salb (Lippman, Semsker & Salb, LLC) of the

Maryland bar, admitted pro hac vice, attorneys for

appellant (Eugenie F. Temmler, of counsel; David H.

Ben-Asher, of counsel and on the briefs; S. Micah Salb,

on the briefs).

McElroy, Deutsch, Mulvaney & Carpenter, LLP,

attorneys for respondent (James P. Lidon, of counsel

and on the brief; Kelly R. Anderson, on the brief).

PER CURIAM

Plaintiff Raymond L. Capra appeals from a January 31, 2019 Law

Division order denying his motion for summary judgment; a February 11, 2019

order granting summary judgment to defendant Seton Hall University (Seton

Hall) dismissing counts one and two of Capra's complaint; and an April 12, 2019

order granting summary judgment to defendant dismissing count three of the

complaint.1 Capra argues the motion court erred in granting summary judgment

because he presented prima facie evidence that Seton Hall breached its

employment contract with him and acted in bad faith. We disagree and affirm.

I.

In 2006, Seton Hall hired Capra as a full-time instructor in the Classical

Studies in the Languages, Literatures, and Cultures Department (the Department).

The terms of Capra's employment were outlined in the Full-Time Faculty Member

1

Plaintiff did not brief the dismissal of his claim for declaratory judgment

(count three). We deem the issue waived and decline to address it. See

Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310, 318-19 (App. Div.

2017) ("An issue not briefed on appeal is deemed waived." (quoting Sklodowsky

v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011))); Pressler & Verniero,

Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020) (same).

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2

Term Contract that both he and Seton Hall renewed annually. In 2010, Capra

received a Ph.D. in Classical Philology. That same year, he was selected for a

tenure-track position at Seton Hall as an Assistant Professor. Following the

promotion, Capra signed a series of annual Full-Time Faculty Member Probationary

contracts.

Each probationary contract required Capra to "apply for tenure not later than

the fall semester of 2015." In the event he was not granted tenure, his employment

would "automatically terminate on June 30, 2017." The contracts also stated that

"[t]here is no automatic right to tenure. Tenure is conferred only by specific

affirmative action by the University's Board of Regents." Each contract noted that

Capra's position with Seton Hall was "subject to the Faculty Guide."

In the fall of 2015, Capra applied for promotion to the position of Associate

Professor with tenure. Capra acknowledges that the Department's Policies and

Procedures Regarding Applications for Promotion and Tenure impose the following

minimum scholarly performance requirements: (1) at least four articles published

or accepted in peer-reviewed journals and at least one additional scholarly article

published; (2) a contract or manuscript pending publication; (3) at least five

conference papers given; and (4) a clear research program laid out.

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Further, Capra acknowledges the standards, criteria, policies, and procedures

pertaining to promotion and tenure are contained in Article 4 of Seton Hall's Faculty

Guide. Under Article 4, three overarching factors would be applied in evaluating

Capra's application: (1) teaching effectiveness; (2) scholarship; and (3) service to

Seton Hall, the profession, and the community. Moreover, Capra had to demonstrate

"four (4) years of full-time college or university teaching experience, evidence

of teaching excellence, scholarly publication, research, or other creative work

in the appropriate discipline or field" and "promotion to this rank rests on proven

ability and accomplishments." (Emphasis added).

Capra's application was first considered by the Rank and Tenure Committee

for the Languages, Literatures, and Cultures Department. There, Capra was

recommended for promotion by an anonymous vote of fourteen to one. The

dissenting voter noted Capra's limited publications, having "published only two

articles for the book chapters in the fall of 2010 and in the spring of 2015." Another

colleague, who voted to advance Capra's application, did so "[d]espite [Capra]

having few publications." A colleague who voted in favor of the promotion

expressed "considerable misgivings about [Capra's] scholarly record and promise,"

stating "two chapters in books (not even peer-reviewed articles) are not sufficient to

merit tenure according to our Departmental standards." Another colleague stated, "I

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wish he had a more active profile in scholarship." The Chair of the Department

supported Capra's promotion but noted "[w]hile several voters wished that Dr. Capra

had been able to publish a bit more, only the lone dissenter felt that Dr. Capra's

scholarship did not meet departmental requirements."

Next, Capra's application was considered by the Rank and Tenure Committee

for the College of Liberal Arts and Sciences, which recommended Capra for

promotion by an anonymous vote of seven to two. One dissenting voter explained

"Capra's research/scholarly productivity is not sufficient to warrant tenure and

promotion to associate professor." The other dissenting Committee member stated:

"Unfortunately, [Capra's] scholarship output is low. He only has produced [three]

publications in the time since his hire: one of these publications being a book

review." Another Committee member stated Capra has been "less productive" in his

scholarship and had produced "not quite enough to meet the department's standards."

Under the Faculty Guide, the Dean of the College of Arts and Sciences

submits a separate recommendation to the Provost. The Dean recommended

promoting Capra to Associate Professor but expressed the following concern, "I, like

a few of his colleagues, lament his limited publications, albeit in substantial presses."

Capra's application was then submitted to the University Rank and Tenure

Committee for review. Under the Faculty Guide, the Committee issues its

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recommendations to the Provost. The Committee recommended that Capra be

promoted and granted tenure by a vote of eight to three.

Finally, Capra's application was submitted to Seton Hall's Provost. At the

time, Dr. Larry A. Robinson served as the Provost and Executive Vice President. In

his capacity as provost, Robinson was required by the Faculty Guide to consider

each application for promotion and/or tenure after the applicant's department,

College Rank and Tenure Committee, dean, and the University Rank and Tenure

Committee had evaluated the application and provided their advisory

recommendations. The prior recommendations were not binding meaning the

provost could either endorse the application—thereafter referring it to the

University's Board of Regents for consideration and approval—or deny it. A denial

would be final unless "the application had been positively recommended by majority

vote of the University Rank and Tenure Committee." In that case, "the decision of

the provost is appealable to the president" by letter.

Robinson denied Capra's application. In a March 16, 2016 letter, Robinson

advised Capra:

I have carefully considered your application for

Associate Professor with Tenure. This review has

included my personal study of your application

materials, as well as the recommendations of your

department, dean, and University Rank and Tenure

Committee.

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I regret to inform you that I am unable to recommend

you for promotion to the rank of Associate Professor

with Tenure. My decision is based on my evaluation of

your performance as a faculty member according to the

criteria, and only the criteria, set forth in Article 4.1-

4.5 of the Faculty Guide, which states the standards in

the areas of Teaching Effectiveness, Scholarship, and

Service to the University, the Profession and the

Community.

I am appreciative of the contributions that you have

made to Seton Hall.

Capra appealed Robinson's decision to Seton Hall's then President, Dr. A.

Gabriel Esteban. In his letter to President Esteban, Capra surmised that the

Robinson's denial was due to his "error in writing the application in that [he]

underrepresented [his] scholarship as required under Faculty Guide 4.3b." He

claimed this underrepresentation "led to a few negative evaluations of [his]

scholarship and may have been a factor in the Provost's decision."

On April 8, 2016, President Esteban notified Capra that she would not

overturn Robinson's decision, stating that "[a]fter careful consideration and

reflection, I have decided to not grant your appeal to overturn the Provost's decision

that you have not yet fully satisfied all criteria for the rank of associate professor

with tenure as contained in Article 4-1 to 4.5."

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On February 6, 2018, Capra filed a three-count complaint alleging breach of

contract (count one) and breach of the implied covenant of good faith and fair

dealing (count two) based upon Robinson's purportedly generic denial letter. Capra

also sought a declaratory judgment (count three) that he "satisfied the requirements

of the Faculty Guide for promotion and tenure, and that [Seton Hall] is obligated to

grant promotion and tenure to [Capra], retroactive to July 1, 2016," and award him

back pay, lost benefits, punitive damages, interest, and costs.

Capra moved for summary judgment on counts one and two while Seton Hall

cross-moved for summary judgment as to those same counts. The motion court

heard oral argument on January 31, 2019.2 It issued an oral decision and separate

orders denying Capra's motion and granting Seton Hall's cross-motion.

Regarding Capra's breach of contract claim, the motion court found that he

failed "to identify any contractual provisions that require [Seton Hall or Robinson]

to provide detailed reasoning when denying an application for promotion to

associate professor with tenure."3 The court determined that Seton Hall was not

2

The complaint did not allege that Seton Hall breached the contract by not

providing annual evaluations of Capra. In addition, Capra made no such

argument during oral argument before the motion court.

3

The motion court did not consider Capra's late reply brief and opposition to

Seton Hall's cross-motion, which were received by the court on January 30,

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obligated to promote Capra but "was [only] required to weigh certain criteria and

follow certain procedures in evaluating his application for promotion," which it did.

As to Capra's implied covenant of good faith and fair dealing claim, the motion court

concluded that Capra could not "establish that . . . defendant acted pursuant to [an]

improper motive or in bad faith in the evaluation of [his] application for promotion."

Seton Hall subsequently moved for summary judgment on count three. The

motion court granted defendant's unopposed motion dismissing that count. This

appeal followed.

Defendant raises the following points for our consideration:

POINT I. SETON HALL DENIED DR. CAPRA'S

APPLICATION FOR PROMOTION WITHOUT

REASON.

A. Seton Hall and Dr. Capra Formed a Contract.

B. Dr. Capra Fully Satisfied the Criteria for

Promotion.

1. It is Undisputed that Dr. Capra Satisfied

the Effective Teaching Requirement.

2. It is Equally Clear – and Undisputed –

that Dr. Capra Satisfied the Record of

Service Requirement.

2019, the day before the motions' return date. See R. 4:46-1 (requiring reply

briefs and opposition to cross-motions to be served and filed not later than four

days before the return date).

A-4053-18T2

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3. Dr. Capra Has Proved Excellence in His

Scholarship.

4. Tenure is Consistent with "the Needs of

the Department or College."

C. The Provost Denied Dr. Capra's Application

Without Reason.

D. Seton Hall Also Refused to Identify Any

Reasons for the Provost's Decision During the

Litigation.

POINT II. BY DENYING DR. CAPRA'S

APPLICATION FOR PROMOTION WITHOUT

EXPLANATION, SETON HALL BREACHED ITS

CONTRACT WITH DR. CAPRA.

POINT III. SETON HALL IS FORECLOSED FROM

ARGUING THAT DR. CAPRA'S JOB

PERFORMANCE DID NOT MERIT PROMOTION.

POINT IV. THE PROVOST IS NOT EMPOWERED

TO MAKE HIS DECISIONS BY FIAT.

POINT V. SETON HALL'S ARBITRARY DECISION

CONSTITUTES A BREACH OF THE COVENANT

OF GOOD FAITH AND FAIR DEALING.

POINT VI. THE TRIAL COURT PLAINLY

VIOLATED LAW BY GRANTING DEFENDANT'S

CROSS-MOTION.

II.

Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the motion court. Townsend v. Pierre, 221 N.J. 36, 59

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(2015) (citing Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014)).

That is, we "consider 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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995).

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." RSI

Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018) (quoting R.

4:46-2(c)). "When no issue of fact exists, and only a question of law remains,"

a reviewing court "affords no special deference to the legal determinations of

the trial court." Ibid. (quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire

Ins. Co., 224 N.J. 189, 199 (2016)).

III.

We first address Capra's claim that the motion court erred by dismissing his

breach of contract claim. We disagree.

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Capra argues "Seton Hall breached its contract with [him] because it cannot

demonstrate that it evaluated [his] application for promotion according to the criteria

stated in the" Faculty Guide. The motion court noted that Article 5.3 of the Faculty

Guide "omits the provost from the listed individuals and bodies required to provide

reasons for a recommendation." Thus, unlike the prior reviewers, the provost is only

required to notify an applicant "of his action on the application," namely whether he

endorsed or denied it. Robinson did just that, advising Capra that he was "unable to

recommend [Capra] for promotion to the rank of Associate Professor with Tenure."

Capra states that he had written three book chapters and two book reviews;

was working with another author to translate a book into English; delivered

presentations at eleven academic conferences; and had various ideas for future

research projects. However, despite Capra's accomplishments, several of his

colleagues—both voting for and against Capra's promotion—cited his lack of

academic work as his primary setback. Even the Dean acknowledged Capra's

"limited publications."

The Faculty Guide makes clear that only advisory "recommendations" were

garnered from the three Rank and Tenure Committees and the Dean. Robinson was

free to endorse or deny it without relying upon faculty opinion.

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Neither Capra's self-serving representations regarding his academic

credentials, nor the comments of colleagues in favor of promotion and tenure, suffice

to create an issue of disputed material fact precluding summary judgment. See

Molthan v. Temple Univ. of Com. Sys. of Higher Educ., 778 F.2d 955, 962 (3d Cir.

1985) (stating "the evidence as a whole must show more than a denial of tenure [or

promotion] in the context of disagreement about the scholarly merits of the

candidate's academic work, the candidate's teaching abilities or the academic needs

of the department or university") (alteration in original) (quoting Zahorik v. Cornell

Univ., 729 F.2d 85, 94 (2d Cir. 1984)); Sarmiento v. Montclair State Univ., 513 F.

Supp. 2d 72, 89 (D.N.J. 2007) (finding "plaintiff's subjective belief he was more

qualified for the job does not create an issue of fact for the jury") (quoting Dungee

v. Ne. Foods, Inc., 940 F. Supp. 682, 689 (D.N.J. 1999), aff'd, 285 F. App'x 905 (3d

Cir. 2008)); Harel v. Rutgers, State Univ., 5 F. Supp. 2d 246, 271 (D.N.J. 1998)

(explaining that Faculty Appeal Board's recommendation for tenure and

disagreement with the President, Vice President, and University's denial of tenure

was insufficient to warrant grant of tenure), aff'd sub nom., Harel v. Rutgers, 191

F.3d 444 (3d Cir. 1999).

Capra also argues that Seton Hall "breached the contract by failing to provide

[him] with the annual evaluations required by the contract." He claims "Seton Hall

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evaluated [him] only once during his five years of probationary service" and did not

advise him of his progress toward tenure.

Capra's complaint, however, does not allege that Seton Hall breached the

contract by failing to perform annual evaluations or contain any facts in support of

that claim. Capra cannot amend the complaint through opposition to a dispositive

motion. See Labree v. Mobil Oil Corp., 300 N.J. Super. 234, 236-37 (App. Div.

1997) (rejecting a plaintiff's fraud claim first raised in an opposing brief where the

complaint did not allege fraud, the underlying facts for fraud were not pleaded, and

plaintiff did not move to amend the complaint). Moreover, this argument was not

argued before the motion court and was not decided on the merits. "[A]ppellate

courts will decline to consider questions or issues not properly presented to the trial

court when an opportunity for such presentation is available unless the questions so

raised on appeal go to the jurisdiction of the trial court or concern matters of great

public interest." Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012)

(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Capra does not

raise jurisdictional questions or matters of significant public interest.4

4

In his reply brief on appeal, Capra concedes that Seton Hall's failure to conduct

annual evaluations is not reviewable. Moreover, the record establishes that Capra

was denied promotion and tenure due to inadequate scholarship not inadequate work

performance, teaching effectiveness, or service to Seton Hall, the profession, and

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Capra also argues that his employment contract with Seton Hall is illusory

because "[u]nder [Seton Hall's] interpretation of the contract, [it] could never be held

to its promise to evaluate tenure applications based on the criteria established by the"

Faculty Guide. The record demonstrates, however, that Robinson's discretion was

not "unfettered," as Capra claims. Instead, as provost, he was required to evaluate

each application for tenure according to the Faculty Guide criteria and then to "notify

each applicant of his action on the application." In his denial letter to Capra,

Robinson stated that he based his decision upon Articles 4.1 to .5, "which states the

standards in the areas of Teaching Effectiveness, Scholarship, and Service to the

University, the Profession and the Community." Robinson certified that he

"conducted [his] own independent review and analysis" of Capra's application,

which was "extensive, rigorous and contemplative." Ultimately, he concluded that

"Capra's record as a whole did not evidence sufficient proven ability and

community. In any event, the minimum requirements for adequate scholarly

performance are set forth in Department Policies and the Faculty Guide. Capra

does not claim he was unaware of those requirements nor does he claim that

annual evaluations were necessary to inform him whether he met those

requirements. He merely argues that annual evaluations were not performed in

four of his five probationary years. For these reasons, we decline to consider this

issue.

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accomplishments during his probationary period to merit a promotion to Associate

Professor with the accompanying award of lifetime tenure."

In any event, Robinson's decision was not final because Capra appealed to

President Esteban, who could have reversed it. The record also indicates Capra later

pursued reconsideration by interim President, Mary J. Meehan, who responded:

In your request to me for reconsideration, you

offer only your own disagreement with the academic

judgments of both the former Provost and former

President. Essentially, you are asking me to consider

substituting my judgment for the judgment of my

predecessor and the former Provost. This I cannot do -

- your personal disagreement (and the several letters of

support from former students and one of your own

professors) is not a basis to revisit the substantive and

reasoned decisions made before my arrival at the

University. Indeed, both under the Faculty Guide and

through your attorney, you have been provided with

ample opportunity to explain and advance your

application and dispute any aspect of the decisions by

Drs. Robinson and Esteban. Consequently, not only

have you exhausted all appeals under the Faculty

Guide, but you present no basis for reconsideration.

[(Emphasis omitted).]

The contract was not illusory; it provided further review of the provost's

decision to deny an application for promotion and tenure, which Capra availed

himself of.

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IV.

Finally, Capra argues Seton Hall breached the implied covenant of good faith

and fair dealing by denying his "application without stating any facts, reasons, or

analysis for the decision—indeed, without even proof that the [P]rovost considered

the application on its merits—it acted capriciously and it breached the covenant of

good faith and fair dealing." We are unpersuaded by this argument.

The implied covenant of good faith and fair dealing is "a component of every

contract." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 109 (2007). "'Good faith'

entails adherence to 'community standards of decency, fairness or reasonableness.'"

Id. at 109-10 (quoting Wilson v. Amerada Hess Corp., 168 N.J. 236, 245 (2001)). It

"requires a party to refrain from 'destroying or injuring the right of the other party to

receive' its contractual benefits." Id. at 110 (quoting Brunswick Hills Racquet Club,

Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 224-25 (2005)). Accordingly,

to succeed on this claim a plaintiff must demonstrate a defendant's "bad motive or

intention." Ibid. (quoting Brunswick Hills, 182 N.J. at 225).

The motion court concluded that Capra could not establish Seton Hall acted

with an "improper motive or in bad faith in the evaluation of [Capra's] application

for promotion." The court found that the contractual "process and procedure were

followed, event to the extent that after this [P]rovost denied him, he followed the

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next process, which was an appeal, and was addressed by the [P]resident, who

had the right and the authority to overrule the [P]rovost and did not."

A party opposing summary judgment cannot merely rely on unsupported

allegations in its pleadings. See Pressler & Verniero, cmt. 2.2 on R. 4:46-2 ("[B]are

conclusions in the pleadings without factual support in affidavits will not defeat a

motion for summary judgment." (Citations omitted)).

During discovery, Capra elected not to take any depositions. As a result, there

is no testimony impeaching Robinson or President Esteban, which might have lent

credence to his bad faith claim. The motion record contains no other evidence of

any improper motive or intention.

As the motion court noted, the record demonstrates that Seton Hall provided

Capra with the proper procedures and notice for promotion that were contractually

afforded to him by the Faculty Guide. Capra has not demonstrated a prima facie

case for a breach of the implied covenant of good faith and fair dealing. See Wilson,

168 N.J. at 251 (holding that bad motive or intention is an essential element of

a breach of the implied covenant of good faith claim).

Additionally, Seton Hall presented Robinson's certification, explaining that he

engaged in an "independent," "extensive," "rigorous," "contemplative," and

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"thorough review" of Capra's application and his decision to deny it came after

"careful deliberation." Robinson also noted the following:

I understand that Dr. Capra now asserts that my

decision not to endorse his application to the

University's Board of Regents represents bad faith

conduct on my part that resulted in a breach of contract

by the University. Those allegations reflect both a

dramatic change and deviation from Dr. Capra's

previously-stated acceptance of responsibility for the

denial of his application [detailed in his March 21, 2016

letter to President Esteban] and a troubling lack of

candor. . . . It is noteworthy that Dr. Capra did not

accuse me of failing to review his application until after

Dr. Esteban denied his appeal. . . .

In sum, although Capra claims that Robinson and Seton Hall reviewed his

application in bad faith, his "[b]are conclusions in the pleadings without factual

support in tendered affidavits, will not defeat a meritorious application for summary

judgment." Cortez v. Gindhart, 435 N.J. Super. 589, 606 (App. Div. 2014) (quoting

Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)). It

was Capra's burden, in response to Seton Hall's motion for summary judgment, to

present evidence demonstrating there is a genuine issue of material fact for trial.

Brill, 142 N.J. at 528-29; Pressler & Verniero, cmt. 2.2 on R. 4:46-2. He failed to

do so. Accordingly, the court properly granted summary judgment dismissing count

two.

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Capra's remaining arguments are without sufficient merit to warrant

further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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