DALNOKY v. THE PINELANDS REGIONAL SCHOOL DISTRICT

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3411-21
A-0396-22
PAUL B. DALNOKY,
Plaintiff-Appellant,
v.
THE PINELANDS REGIONAL
SCHOOL DISTRICT,
Defendant-Respondent.
____________________________
Submitted October 12, 2023 – Decided November 13, 2023
Before Judges Vernoia and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division and Chancery Division, Ocean County,
Docket Nos. L-0435-22 and C-000082-22.
Paul B. Dalnoky, appellant pro se.
Lenox, Socey, Formidoni, Giordano, Lang, Carrigg &
Casey, LLC, attorneys for respondent (Patrick F.
Carrigg, on the brief).
PER CURIAM
NOT FOR PUBLICATION WITHOUT THE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.
2 A-3411-21
We calendared these appeals back-to-back and consolidate them for
purposes of this opinion because they arise from the same facts. In A-3411-21,
plaintiff, Paul B. Dalnoky, appeals from a May 3, 2022 Law Division order
dismissing his amended complaint against defendant, Pinelands Regional
School District, alleging breach of contract, breach of the covenant of good faith
and fair dealing, invasion of privacy, intentional infliction of emotional distress,
and "violation of [a] state regulation," N.J.A.C. 6A:16-7.7.1 In A-0396-22,
plaintiff appeals from a July 22, 2022 Chancery Division order dismissing his
complaint, in which he sought an injunction requiring that defendant "make and
strictly enforce a no[-]cell phone[-]use[-]by[-]students policy in its schools and
particularly in its classrooms." Having considered the parties' arguments and
the applicable legal principles, we affirm the challenged orders.
I.
Plaintiff filed his Law Division complaint on December 6, 2021, and the
court entered an order dismissing plaintiff's subsequently filed amended
complaint on May 3, 2022. At some undefined point following the filing of the
1 In the amended complaint, plaintiff asserted a cause of action alleging
defendant had violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-
1 to -13. The court severed that claim from the remaining causes of action and
disposed of the claim in a separate proceeding. The disposition of plaintiff's
OPRA claim is not before us on these appeals.
3 A-3411-21
amended complaint in the Law Division and defendant's motion to dismiss th at
complaint, plaintiff filed a Chancery Division complaint founded on the same
facts as those alleged in the Law Division matter.2 However, in the Chancery
Division action, plaintiff sought an injunction requiring defendant enact and
enforce a policy prohibiting students from having cell phones in the classroom.
Because the appeals require that we review orders granting Rule 4:6-2(e)
motions to dismiss the complaints in both actions for failure to state claims on
which relief may be granted, and the complaints share the identical nucleus of
pertinent facts, we accept as true and summarize the facts asserted in those
complaints. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
746 (1989).
Defendant employed plaintiff as a substitute teacher during the 2018-2019
school year and from September 2019 to March 2020. Plaintiff estimates that
during his employment he worked approximately 100 days for defendant.
2 Plaintiff's appendix on appeal includes a three-page, twenty-eight paragraph,
Chancery Division complaint that plaintiff identifies as the operative complaint
in this matter, but which does not include a "filed" date. We discern the
complaint was filed after defendant's motion to dismiss the complaint in the Law
Division because the Chancery Division complaint refers to the filing of the
motion to dismiss the Law Division action. We also note that at the end of the
Chancery Division complaint, plaintiff included a date of "April 2022," thereby
further supporting an inference the Chancery Division complaint was filed prior
to entry of the May 3, 2022 order dismissing the Law Division complaint.
4 A-3411-21
Plaintiff alleged that during his employment he had "never missed a
day[,] . . . called out[,] . . . arrived late[,] . . . [or] requested to leave early."
According to plaintiff, the conduct of the students in the school district's
"junior and high school" was "abhorrent, verging on criminal conduct." Plaintiff
asserted the students "have no compunction about using their [cell] phones in
class" and, during periods in which the students are allowed independent study,
they "sit on their desks alone or in groups, chatting, and being on their phones."
Plaintiff further claimed he had witnessed an incident during which "a co-
teacher, a very small woman, [had] attempted to take a student's phone," the
student "physically fought the teacher for control of his phone," and "the student
was never disciplined." Plaintiff alleged it was during that incident he believes
he had first "raised his voice" in the school.3
Plaintiff averred defendant has "no rules in [its] schools concerning
students' use of [cell] phone[s]." He also asserted defendant
3 Although not alleged in the complaints in the two matters, plaintiff's briefs on
appeal suggest that at two different times students recorded him raising his voice
in the classroom. Plaintiff's briefs also suggest defendant improperly relied on
those recordings, and another student's recording allegedly showing plaintiff
sleeping in the classroom, as the basis for its decision to terminate his
employment. As noted, those purported facts and allegations are not included
in the operative complaints in the Law Division or Chancery Division, and we
therefore do not rely on them in our de novo review of the court's orders
dismissing the complaints.
5 A-3411-21
"twice . . . presented what it claims are [the] rule[s]," but the document provided
to him "states that it [includes] merely guidelines." Plaintiff alleged students do
not need to have a cell phone in class and students' cell phones should be "left
in their lockers."
Plaintiff's complaints further aver that on three occasions during the 2019-
2020 school year, students in his classes had surreptitiously video- and audio-
taped him while performing his duties as a substitute teacher. In his Law
Division complaint, plaintiff claimed that during the 2019-2020 school year a
student had surreptitiously video- and audio-taped him during "the performance
of his duties" in the classroom and showed the recording to the school
administration. According to the allegations in the Law Division complaint, a
second student subsequently video- and audio-taped plaintiff "in the
performance of his duties," and a third student later did so as well.
Plaintiff alleged the students' recordings were either authorized or ratified
by the school administration. He further asserted the students who made the
first two recordings had uploaded them to social media, and the school
administration had made a copy of the recording made by the third student.
Plaintiff claims the school administration is responsible for the students '
surreptitious recordings and their publication of the recordings.
6 A-3411-21
Defendant terminated plaintiff's employment in March 2020. He alleged
the superintendent of the school district advised him at the time about the
students' surreptitious videotaping "and wrongly terminated [his] employment
agreement" at that time "based upon the wrongful acts of the . . . students."
The Law Division Action
Based on those factual allegations, in A-3411-21, plaintiff filed his initial
complaint in the Law Division in Atlantic County asserting causes of action for
breach of contract and the covenant of good faith and fair dealing, invasion of
privacy, intentional infliction of emotional distress, and an OPRA violation.
Plaintiff later filed an amended complaint adding a cause of action for an alleged
violation of N.J.A.C. 6A:16-7.7 and other state regulations. The amended
complaint is the operative complaint the court later dismissed.
Defendant moved for a change of venue to Ocean County and, in a
February 22, 2022 order and an amended February 24, 2022 order, the court
granted defendant's motion in part, transferring venue of plaintiff's claims for
breach of contract and the covenant of good faith and fair dealing, invasion of
privacy, intentional infliction of emotional distress, and violations of State
regulations to Ocean County. The court denied the motion as to the OPRA cause
of action.
7 A-3411-21
On March 15, 2022, plaintiff requested entry of default against defendant
for "failure to plead or otherwise defend as provided for in Rule 4:43-1." The
court entered default against defendant on March 21, 2022.4
Following entry of default, defendant moved for dismissal of the
complaint under Rule 4:6-2(e), arguing the complaint failed to state a claim upon
which relief could be granted. While its dismissal motion was pending,
defendant also moved to vacate default. Plaintiff filed opposition to the motion
to dismiss.
The court heard arguments virtually on the motions on the same day. At
the outset of the hearing, plaintiff explained to the court he was an attorney who
had practiced law for seventeen years. He also noted he had received notice of
the hearing only minutes before it began because he had provided the wrong
email address to the court with his submissions. The court inquired as to
whether plaintiff was unable to file written opposition to the motions due to his
delayed receipt of the notice of the hearing. Plaintiff advised the court his late
receipt of the notice of the hearing had not prevented him from filing his
4 The record does not include an order from the court showing when default was
entered. We rely on defendant's representation in its merits brief that default
was entered on March 21, 2022. Plaintiff does not dispute defendant's
representation in his reply brief.
8 A-3411-21
opposition to the motion to dismiss but had prevented him from filing opposition
to the motion to vacate default.
The court first granted defendant's motion to vacate default and then, after
hearing arguments on defendant's dismissal motion, granted the motion to
dismiss plaintiff's complaint, finding the complaint did not contain claims on
which relief may be granted against defendant. The court entered a May 3, 2022
order dismissing the complaint without prejudice. The appeal in A-3411-21
followed.
The Chancery Division Action
Based on the same essential facts as set forth in the Law Division
complaint, in A-0396-22, plaintiff filed a single-count complaint in the
Chancery Division seeking an injunction requiring that defendant adopt a
disciplinary cell phone policy prohibiting students from having cell phones in
the classrooms of defendant's school district. Defendant filed a motion to
dismiss under Rule 4:6-2(e) for failure to state a claim upon which relief may
be granted.
In support of its motion to dismiss, defendant submitted a certification of
its counsel explaining plaintiff had previously filed a complaint against
defendant in the United States District Court for the District of New Jersey based
9 A-3411-21
on essentially the identical facts alleged in the Chancery Division matter. In the
complaint filed in the District Court, plaintiff sought damages under 42 U.S.C.
§ 1983 and attorney's fees under 42 U.S.C. § 1988 based on a cause of action
for invasion of privacy. Counsel submitted a copy of plaintiff's federal
complaint and the order dismissing it as exhibits to her certification.
In her certification, counsel also explained the District Court had
dismissed plaintiff's complaint, finding plaintiff's invasion of privacy claim
failed because he did not have a reasonable expectation of privacy in his
recorded actions, which took place in the classroom in front of students.
Counsel further detailed plaintiff's filing of the Law Division complaint
and the court's dismissal of the complaint without prejudice. Counsel noted
plaintiff had not filed an amended complaint in the Law Division action.
In her certification, counsel also stated defendant has in place a cell phone
policy, which is available on defendant's "publicly accessible website." Counsel
submitted a copy of the policy to the court as an exhibit to her certification.
After hearing arguments on defendant's motion, the court rendered a
detailed decision from the bench, finding plaintiff's request for an injunction
requiring defendant to enact a disciplinary policy prohibiting the use of cell
phones by students in the district's schools was moot because defendant had a
10 A-3411-21
disciplinary policy concerning cell phone usage in place. The court further
determined plaintiff lacked standing to request an injunction requiring defendant
adopt his version of a disciplinary policy because he was no longer employed
by defendant and he has no children attending schools in the district.
The court also concluded plaintiff's claim for injunctive relief is barred
under the entire controversy doctrine because it is based on the identical facts
as those alleged in support of the claims dismissed by the court in the Law
Division matter. For the same reasons, the court determined plaintiff's
complaint is barred under the doctrine of res judicata.
The court further rejected plaintiff's contention defendant's motion should
be converted to one for summary judgment because the motion required
consideration of documents outside the allegations in the four corners of the
complaint. The court reasoned it could properly consider the documents —
including the federal court complaint, the order dismissing the federal
complaint, and defendant's disciplinary policy—because they were referred to
in plaintiff's Chancery Division complaint.
The court entered a July 22, 2022 order dismissing the Chancery Division
complaint with prejudice. In A-0396-22, plaintiff appeals from that order.
11 A-3411-21
II.
In A-3411-21, plaintiff claims the court erred by granting defendant's
motion to vacate default. More particularly, plaintiff contends defendant's
motion to dismiss should have been denied as a nullity because defendant filed
the motion while in default. Plaintiff also asserts that under Rule 4:43-3, a
motion for default must be accompanied by "either an answer to the
complaint . . . or a dispositive motion pursuant to Rule 4:6-2," and defendant
violated the Rule by filing its motion to dismiss without simultaneously filing a
motion to vacate default. Plaintiff further claims defendant failed to
demonstrate the requisite good cause under Rule 4:43-3 to vacate default.
Under Rule 4:43-3, a court may vacate the entry of default upon a mere
showing of "good cause," which, under the Rule means "the presence of a
meritorious defense . . . and the absence of any contumacious conduct."
O'Connor v. Altus, 67 N.J. 106, 129 (1975); see also U.S. Bank Nat'l Ass'n v.
Guillaume, 209 N.J. 449, 466-67 (2012) ("When nothing more than an entry of
default pursuant to Rule 4:43-1 has occurred, relief from that default may be
granted on a showing of good cause."). The presence of a meritorious defense
is included within "good cause." O'Connor, 67 N.J. at 129. Considering whether
12 A-3411-21
good cause to vacate default exists "requires the exercise of sound discretion by
the court in light of the facts and circumstances of the particular case." Ibid.
A trial court's decision to grant or deny a motion to vacate a default will
not be disturbed unless there is an abuse of discretion. Guillaume, 209 N.J. at
467 (citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009); Hous.
Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). We "find[] an abuse
of discretion when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.'" Guillaume, 209 N.J. at 467-68 (citations omitted).
Defendant submitted a certification from its counsel in support of its
motion to vacate default. The certification detailed defendant's active and
ongoing participation in the litigation of plaintiff's claims including: its filing
of a motion to change venue within eighteen days of service of plaintiff's initial
complaint in Atlantic County; the court's entry of an order granting the motion
to change venue of all plaintiff's claims other than his OPRA claim; the transfer
of the matter to Ocean County pursuant to the change-of-venue order; and
defendant's filing of a dispositive motion to dismiss the claims that were
transferred to Ocean County pursuant to the change-of-venue order. Counsel
also explained that the court in Atlantic County had denied plaintiff's earlier
13 A-3411-21
request for default based on the pendency of the venue motion, and defendant's
failure to timely file the dipositive dismissal motion in response to the complaint
was the result of an erroneous understanding the motion to change venue
constituted the filing of a responsive pleading such that defendant was not in
default.
Counsel also argued plaintiff failed to demonstrate he would suffer any
prejudice if the default, which had been entered only days before defendant filed
its motion to dismiss the complaint, was vacated. In addition, counsel asserted
defendant would suffer prejudice if default was not set aside because defendant
would be precluded from asserting its defenses.
Based on those circumstances, we discern no abuse of discretion in the
court's decision to vacate the default. The record shows defendant actively
participated in the litigation from its inception, its failure to timely file an answer
or dispositive motion in response to the complaint was not the result of any
"contumacious conduct[,]" O'Connor, 67 N.J. at 129, it filed the dispositive
dismissal motion within days of the entry of default, and its dismissal motion,
which proved successful, established defendant had a meritorious defense.
Defendant demonstrated good cause to vacate default, and the court did not err
by granting defendant's motion.
14 A-3411-21
We also reject defendant's claim the court could not properly consider
defendant's dismissal motion because it was filed while defendant was in
default. Although defendant filed the motion to dismiss before the court vacated
default, and Rule 4:43-3 requires that a motion to vacate default be accompanied
by either an answer or dispositive motion, defendant effectively complied with
the Rule by filing separate motions—one to vacate default and the other to
dismiss the complaint—that were returnable before the court, and were heard
and decided by the court, at the same time. Plaintiff suffered no prejudice
simply because defendant satisfied the requirements of the Rule by filing
separate motions instead of one. And the court did not consider the merits of
defendant's dismissal motion until it heard argument on defendant's motion to
vacate default and granted that motion. We therefore affirm the court's order
granting defendant's motion to vacate default.
III.
In A-3411-21, plaintiff also argues the court erred by granting defendant's
motion to dismiss the causes of action asserted in the amended complaint for
failure to state a claim upon which relief may be granted under Rule 4:6-2(e).
Plaintiff generally argues the complaint alleged sufficient facts supporting the
15 A-3411-21
elements of the causes of action asserted and the court erroneously concluded
otherwise.
We conduct a de novo review of a decision on a motion to dismiss under
Rule 4:6-2(e), applying the same standard as the motion court. Frederick v.
Smith, 416 N.J. Super. 594, 597 (App. Div. 2010). We therefore "'owe no
deference to the . . . judge's conclusions.'" Mac Prop. Grp. LLC & The Cake
Boutique LLC v. Selective Fire & Cas. Ins. Co., 473 N.J. Super. 1, 16 (App.
Div. 2022) (quoting State ex rel. Comm'r of Transp. v. Cherry Hill Mitsubishi,
Inc., 439 N.J. Super. 462, 467 (App. Div. 2015)).
In determining whether to grant a motion to dismiss under Rule 4:6-2(e),
"the complaint's allegations are accepted as true with all favorable inferences
accorded to plaintiff." Ibid. (citation omitted). A court must consider only "'the
legal sufficiency of the facts alleged on the face of the complaint,'" Nostrame v.
Santiago, 213 N.J. 109, 127 (2013) (quoting Printing Mart, 116 N.J. at 746), and
must search the complaint "in depth and with liberality to ascertain whether the
fundament of a cause of action may be gleaned even from an obscure statement
of a claim," Mac Prop., 473 N.J. Super. at 16 (quoting Printing Mart, 116 N.J.
at 746).
16 A-3411-21
In the amended complaint plaintiff asserts putative causes of action for
breach of contract and the covenant of good faith and fair dealing, invasion of
privacy, intentional infliction of emotional distress, and violation of state
regulations. As we explain, based on our de novo review of defendant's motion
to dismiss those claims under Rule 4:6-2(e), we are convinced the court correctly
determined plaintiff failed to sufficiently state any claims upon which relief may
be granted on the four asserted causes of action.
In the first count of the amended complaint, plaintiff alleged defendant
breached a purported oral agreement by terminating his employment and the
implied covenant of good faith and fair dealing by allowing students to
surreptitiously record him in class. To establish a claim for breach of contract,
a plaintiff must prove the existence of a contract with certain terms, the
plaintiff's compliance with those terms, the defendant's breach of one or more
of them, and a loss to plaintiff caused by that breach. Goldfarb v. Solimine, 245
N.J. 326, 338-39 (2021) (citations omitted). To sustain a cause of action for
breach of the covenant of good faith and fair dealing, a plaintiff must prove a
contract existed between the parties, the defendant acted in bad faith with the
purpose of depriving plaintiff the rights or benefits under the contract, and the
defendant's conduct caused plaintiff injury, loss, or damages. See Brunswick
17 A-3411-21
Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 224-
25 (2005); Model Jury Charges (Civil), 4.10J "Bilateral Contracts: Implied
Terms—Covenant of Good Faith and Fair Dealing" (Rev. Dec. 2011).
In his complaint, plaintiff alleged that "[w]hen Pinelands hired [him] for
the position of substitute teacher, a contract was formed with the contracting
parties being [defendant] and [him]self" and the contract included a covenant of
good faith and fair dealing. Beyond that conclusory assertion, plaintiff did not
detail any of the alleged terms of the contract or allege facts establishing the
manner in which either the termination of his employment or the students'
recordings of his actions in the classroom violated the alleged contract or
deprived him of the benefit of the alleged contract.
Moreover, at oral argument on defendant's motion to dismiss the
complaint, plaintiff conceded that in his role as a substitute teacher employed
by defendant, he was an employee at will whose employment could be properly
terminated for "good cause, bad cause, or no cause at all." See Wade v. Kessler
Inst., 172 N.J. 327, 338 (2002) (quoting Witkowski v. Thomas J. Lipton, Inc.,
136 N.J. 385, 397 (1994)) ("'In New Jersey, an employer may fire an employee
for good reason, bad reason, or no reason at all under the employment -at-will
doctrine. An employment relationship remains terminable at the will of either
18 A-3411-21
an employer or employee, unless an agreement exists that provides otherwise.'").
Plaintiff's candid concession he was an employee at will, and the absence of any
assertion in the complaint that the termination of his employment and the
students' recording of his actions in the classroom breached any terms of the
purported contract, require the conclusion the complaint failed to state a breach
of contract claim upon which relief may be granted.5
We similarly find the complaint fails to state a claim upon which relief
may be granted on plaintiff's cause of action for breach of the covenant of good
faith and fair dealing. Although plaintiff characterizes defendant's conduct as
reprehensible and "reminiscent of conduct encouraged in Germany between the
years 1933 and 1945 or in China during the Cultural Revolution," he alleges
only that school administrators encouraged students to gather evidence against
him by recording his actions in the classroom and, based on those actions,
terminated his employment. Even accepting as true that defendant encouraged
the students to record plaintiff's actions while serving as a substitute teacher in
the classroom, such encouragement is insufficient to support a breach of the
5 We appreciate that there are exceptions to the at will employment doctrine,
including where an employer's grounds for termination are "contrary to public
policy . . . or based on impermissible factors such as race." Wade, 172 N.J. at
338-39 (citations omitted). Plaintiff's complaint does not assert any facts
supporting application of any of the exceptions.
19 A-3411-21
covenant of good faith and fair dealing claim because such conduct is not
unconscionable and defendant offers no factual allegations establishing the
recordings were taken with a bad motive or intent. Plaintiff thus failed to assert
sufficient facts supporting the alleged cause of action for breach of the covenant
of good faith and fair dealing.
In the amended complaint's second count, plaintiff asserts a cause of
action for invasion of privacy. "As a tort, invasion of privacy encompasses 'four
distinct kinds of invasion of four different interests of the plaintiff.'" Villanova
v. Innovative Investigations, Inc., 420 N.J. Super. 353, 360 (App. Div. 2011)
(quoting Rumbauskas v. Cantor, 138 N.J. 173, 179 (1994)). The four kinds of
invasion include: "intrusion on plaintiff's physical solitude or seclusion, as by
invading his or her home, [or] illegally searching, eavesdropping, or prying into
his personal affairs"; "making public private information about [a] plaintiff";
"placing [a] plaintiff in a false light in the public eye"; and the appropriation of
a plaintiff's name or likeness for the defendant's benefit. Ibid. (quoting
Rumbauskas, 138 N.J. at 180).
Plaintiff's cause of action for invasion of privacy is founded on the claim
students surreptitiously recorded him without his knowledge or consent while
he served as a substitute teacher in a public school classroom. He alleges
20 A-3411-21
defendant is liable for the students' invasion of his privacy because "the students
became the agents of the [school] administration" through defendant's
encouragement of the students to make the recordings.
Even accepting plaintiff's factual allegations as true, his invasion of
privacy claim fails because he does not allege any facts establishing a violation
of any of the four interests the tort of invasion of privacy protects. Plaintiff does
not allege defendant's actions appropriated his likeness for defendant's benefit
or placed private information about plaintiff in the public eye. See Villanova,
420 N.J. Super. at 360. Nor does he allege that either the students or defendant
intruded on plaintiff's physical solitude or seclusion, invaded his home or some
other private place, or illegally recorded his actions or pried into his personal
affairs. See ibid. He also does not allege facts establishing defendant took
action to place plaintiff in a false light. See ibid.
Plaintiff does not allege his recorded actions and conduct took place in a
location where he could reasonably expect that his conduct and actions would
be private. He alleges the conduct occurred in the classroom of a public school
while he was in the presence of others—students—some of whom chose to
record his actions. Under those circumstances, plaintiff could not have any
expectation of privacy at all. See, e.g., Villanova, 420 N.J. Super. at 356
21 A-3411-21
(finding no invasion of privacy cause of action where the defendant placed a
GPS device in the plaintiff's vehicle because there was an absence of evidence
plaintiff drove the vehicle out of public view to a place in which the plaintiff
"had a legitimate expectation of privacy"); Bisbee v. John C. Conover Agency,
Inc., 186 N.J. Super. 335, 340 (App. Div. 1982) (noting in part a plaintiff has no
claim for invasion of privacy "where plaintiff's activities are already public or
known"). Thus, the motion court correctly determined under Rule 4:6-2(e) that
the complaint failed to state an invasion of privacy cause of action upon which
relief may be granted based on the recording of plaintiff's conduct and actions
in the presence of the students who recorded them.
We next consider plaintiff's cause of action for intentional infliction of
emotional distress alleged in the third count of the amended complaint. To
allege a viable claim for intentional infliction of emotional distress, a plaintiff
must assert facts supporting the four requisite elements of the cause of action.
Delvalle v. Trino, 474 N.J. Super. 124, 142-43 (App. Div. 2022); Juzwiak v.
Doe, 415 N.J. Super. 442, 451 (App. Div. 2010).
First, "the plaintiff must [allege] that the defendant acted intentionally or
recklessly. For an intentional act to result in liability, the defendant must intend
both to do the act and to produce emotional distress." Buckley v. Trenton Sav.
22 A-3411-21
Fund Soc'y, 111 N.J. 355, 366 (1988) (citations omitted). Second, "[t]he
conduct must be 'so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.'" Ibid. (citation omitted). "Third,
the defendant's actions must have been the proximate cause of the plaintiff's
emotional distress." Ibid. (citation omitted). Finally, "the emotional distress
suffered by the plaintiff must be 'so severe that no reasonable man could be
expected to endure it.'" Ibid. (citation omitted).
We have found conduct was sufficiently outrageous to support an
intentional infliction of emotional distress claim where a landlord "failed to
provide central heating, running water and reasonable security in a rent-
controlled building in an effort to induce the tenants to vacate," Griffin v. Tops
Appliance City, Inc., 337 N.J. Super. 15, 23 (App. Div. 2001) (citing 49 Prospect
St. Tenants Ass'n v. Sheva Gardens, Inc., 227 N.J. Super. 449, 455-57, 466, 471-
75 (App. Div. 1988)), where a doctor intentionally told a child's parents the child
was "suffering from a rare disease which may be cancerous knowing that the
child has nothing more than a mildly infected appendix," ibid. (citing Hume v.
Bayer, 178 N.J. Super. 310, 319 (Law Div. 1981)), and where an employer used
a vile, racial slur against an African American employee, ibid. (citing Taylor v.
23 A-3411-21
Metzger, 152 N.J. 490, 508-21 (1998)). In contrast, we have determined the
alleged conduct was not sufficiently outrageous to support an intentional
infliction of emotional distress claim where an employee was denied promotions
and terminated due to age. Ibid. (citing McDonnell v. Illinois, 319 N.J. Super.
324, 332, 342 (App. Div. 1999)).
We have also observed it is exceptionally rare to find intentional infliction
of emotional distress in the employment context. Ibid. In Griffin, we explained
that "[e]xcept for the kind of aggravated discriminatory conduct involved in
Taylor, 'it is extremely rare to find conduct in the employment context that will
rise to the level of outrageousness necessary to provide a basis for recovery for
the tort of intentional infliction of emotional distress.'" Id. at 23-24 (quoting
Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)).
Here, plaintiff's complaint lacks any allegations of fact supporting a
finding defendant engaged in sufficiently outrageous conduct to suppo rt an
intentional infliction of emotional distress claim. Plaintiff alleges only that
defendant encouraged students to record his actions and conduct in the
classroom and terminated his employment based on what the recordings showed.
In our view, those allegations, even accepted as true and as cloaked in
plaintiff's claims of outrage, do not rise to the level of conduct that exceeds the
24 A-3411-21
bounds of decency such that they support the intentional infliction of emotional
distress claim. "Our courts have found this 'elevated threshold' to be satisfied
only in extreme cases." Id. at 23 (citation omitted). Plaintiff's allegations do
not permit a finding this is one of them. For those reasons, we affirm the court's
dismissal of the third count of the amended complaint for failure to state a claim
upon which relief may be granted. R. 4:6-2(e).
Plaintiff's remaining cause of action is asserted in count five of the
amended complaint and alleges defendant's actions violated Chapter 16 of the
New Jersey Administrative Code.6 As plaintiff concedes, Chapter 16 provides
protections against the harassment and bullying of students. See N.J.A.C.
6A:16-1.2 ("The rules apply to the provision of programs and services for all
students in kindergarten through grade 12 by New Jersey public school districts,
charter schools, renaissance school projects, jointure commissions, educational
services commissions, and approved private schools for students with
disabilities (APSSDs)." (emphasis added)).
6 We do not refer to the claim—an alleged violation of OPRA—in the fourth
count of the complaint because, as noted, the court severed that claim and
disposed of it in a separate proceeding that is not the subject of the pending
appeals.
25 A-3411-21
N.J.A.C. 6A:16-7.7(a)(2)(i), the regulation plaintiff claims defendant
violated, expressly applies to the enactment of policies prohibiting harassment
and bullying of students as required by N.J.S.A. 18A:37-15. Thus, the
regulation is intended to give effect to N.J.S.A. 18A:37-15, which, in pertinent
part, requires boards of education to adopt policies that include "[a] statement
prohibiting harassment, intimidation, or bullying of a student." N.J.S.A.
18A:37-15(b)(1). As the plain language of the regulations makes clear, and as
plaintiff concedes, Chapter 16 does not require that a school district enact a
policy prohibiting the harassment or bullying of a teaching staff member.
For that reason alone, we affirm the motion court's dismissal of plaintiff's
attempt to assert a cognizable cause of action under Chapter 16. We further
reject plaintiff's argument we should expand the coverage of the regulations to
require the promulgation of a policy prohibiting the harassment and bullying of
substitute teachers because that interpretation would be inconsistent with the
plain language of the regulations and N.J.S.A. 18A:37-15, and it is not the role
of this court "to engraft requirements [on a statute] that the Legislature did not
include."7 Lippman v. Ethicon, Inc., 222 N.J. 362, 388 (2015).
7 We do not suggest that a violation of the regulations or statute supports a
private cause of action for damages against a board of education or that had the
26 A-3411-21
In sum, based on our de novo review of the causes of action in the
amended complaint, we are convinced none asserts a claim upon which relief
may be granted and the motion court correctly dismissed each on that basis. We
further note the court dismissed the claims without prejudice, and plaintiff made
no effort to file an amended complaint to breathe life into his otherwise fatally
flawed claims.
Because we have determined plaintiff failed to assert cognizable causes
of action based on our de novo review of the allegations in the amended
complaint, we need not address his argument the motion court incorrectly
considered information outside the four corners of the complaint in making its
determination and, as a result, defendant's motion should have been treated as
one for summary judgment.8 See Lederman v. Prudential Life Ins. Co. of Am.,
regulations required the adoption of a policy prohibiting harassment and
bullying of a substitute teacher, plaintiff would have a private cause of action
against defendant based on a violation of such a requirement. See generally R.J.
Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255, 272-73
(2001) (explaining standard for determining whether a violation of a statute
supports a private cause of action). Based on our determination, and plaintiff's
concession the regulations and statute are applicable only to students, it is
unnecessary to consider or decide whether a violation of the statute or regulation
otherwise supports a private cause of action.
8 If we were to consider plaintiff's argument, we would reject it because it was
not "properly presented to" the motion court and does not "go to the jurisdiction
27 A-3411-21
Inc., 385 N.J. Super. 324, 337 (App. Div. 2006) (explaining "when materials
outside of pleadings are relied on by a judge" considering a motion under Rule
4:6-2(e), the "motion [is] treated as one for summary judgment"). That is
because in our de novo review of the court's grant of defendant's dismissal
motion, we have based our determination solely on the allegations in the
complaint. See Nostrame, 213 N.J. at 127. We therefore affirm the court's May
3, 2022 order dismissing the Law Division complaint from which plaintiff
appeals in A-3411-21.
IV.
In A-0396-22, defendant appeals from the Chancery Division's order
granting defendant's motion to dismiss plaintiff's complaint—which sought an
injunction ordering defendant to adopt plaintiff's version of a disciplinary policy
addressing student use of cell phones—for failure to state a claim upon which
relief may be granted. As noted, the court granted the motion, finding plaintiff's
asserted cause of action was barred under the entire controversy doctrine and
of the [motion] court or concern matters of great public interest." State v.
Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973)). We would further reject the argument because although
documents outside the allegations in the complaint were submitted by defendant
in support of its dismissal motion, the record does not show the court relied on
those documents in its determination of the dismissal motion.
28 A-3411-21
the principles of res judicata and because plaintiff lacked standing and his claim
is moot.
Again, we review de novo the court's order dismissing the Chancery
Division complaint. Frederick, 416 N.J. Super. at 597. We also note that
"'appeals are taken from orders and judgments and not from opinions, oral
decisions, informal written decisions, or reasons given for the ultimate
conclusion.'" Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (quoting Do-Wop
Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)). Thus, our analysis of the
order granting defendant's dismissal motion is not limited to the motion court's
reasoning for its decision.
To establish an entitlement to injunctive relief, plaintiff is required to
allege and prove "the liability of the other party,"—defendant—as well as "the
need for injunctive relief, and 'the appropriateness of such relief on a balancing
of equities.'" Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone Rsch.,
Inc., 427 N.J. Super. 45, 63 (App. Div. 2012) (quoting Rinaldo v. RLR Inv.,
LLC, 387 N.J. Super. 387, 397 (App. Div. 2006)). Having considered only the
allegations in the complaint, we are persuaded plaintiff failed to assert a cause
of action upon which the requested relief—an injunction requiring defendant's
adoption of plaintiff's version of a cell phone disciplinary policy—may be
29 A-3411-21
granted for the simple but dipositive reason that defendant does not allege that
defendant violated any cognizable legal duty supporting a liability for the
imposition of an order requiring that it adopt a cell phone disciplinary policy
suggested by plaintiff. See N.J.A.C. 6A:16-7.1 (vesting boards of education
with the responsibility to adopt student codes of conduct). Stated differently, in
his Chancery Division complaint, and in his merits brief on appeal, plaintiff does
not allege or offer any basis in the law supporting his claim a board of education
may be compelled to adopt a policy prohibiting students from having cell phones
in school.
For those reasons, we affirm the court's order dismissing plaintiff's
Chancery Division complaint for failure to state a claim upon which the
requested relief, an injunction, may be granted. R. 4:6-2(e). We therefore deem
it unnecessary to consider plaintiff's challenges to the motion court's other
reasons for its dismissal order and plaintiff's claim the court erred in not
considering the motion as one for summary judgment because it was dependent
in part on documents that were not referenced in the complaint.
To the extent we have not expressly addressed any of plaintiff's remaining
arguments in either appeal, they are without sufficient merit to warrant
discussion. R. 2:11-2(e)(1)(E).
30 A-3411-21
Affirmed as to A-3411-21 and A-0396-22.

IN THE MATTER OF W.D.

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3041-20
IN THE MATTER OF W.D.,
POLICE OFFICER (S9999A),
NORTH BRUNSWICK
TOWNSHIP.
_________________________
Argued November 30, 2022 – Decided November 15, 2023
Before Judges Gooden Brown and DeAlmeida.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2021-822.
Robert K. Chewning argued the cause for appellant
W.D. (McLaughlin & Nardi, LLC, attorneys; Maurice
W. McLaughlin and Robert K. Chewning, on the
briefs).
Katie Mocco argued the cause for respondent Township
of North Brunswick (DeCotiis Fitzpatrick Cole &
Giblin, LLP attorneys; Katie Mocco and Taylor Dawn
Wood, on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent Civil Service Commission (Pamela N.
Ullman, Deputy Attorney General, on the statement in
lieu of brief).
The opinion of the court was delivered by
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.
2 A-3041-20
DeALMEIDA, J.A.D.
Appellant W.D. appeals from the May 24, 2021 final agency decision of
the Civil Service Commission (Commission) upholding North Brunswick
Township's removal of his name from an eligible list for the position of police
officer.1 We affirm.
I.
In 2019, W.D. took the open competitive examination for police officer
with the North Brunswick Police Department. He achieved a passing score and
was placed on the eligible list.
In response to a request from North Brunswick, in September 2020, W.D.
applied for the position of police officer. He was required to complete a pre-
employment background check application. The application stated that "[a]ny
misstatement of fact, omissions or attempt to mislead this agency, its
investigators or the appointing authority, deliberate or in error, may lead to your
disqualification." In addition, the application provided that
[i]f there is other information which may be relevant,
directly or indirectly, that this agency should have
knowledge of in order to conduct a thorough
background investigation of you, as a candidate for
employment in this agency, or insufficient space was
1 We identify appellant by his initials to protect the confidentiality of records
relating to domestic disputes. R. 1:38-3(c)(12).
3 A-3041-20
provided above for complete answers, you are required
to add this additional information on a separate
sheet(s). . . . You are reminded that any false or
deliberate misstatement of facts can result in your
disqualification for employment by this agency.
This appeal concerns W.D.'s responses to three of the questions on the
background check application.
Question 73 asked "[h]ave you ever been arrested, indicted, or convicted
for any violation of the criminal law? If yes, comp[l]ete the information
required below." W.D. responded, "[y]es" and provided the following
information: "Date: 9/11/12 Violation: 2C:12-1(A) Age: 27 Location:
Carteret, NJ Court Disposition: Dismissed Penalty: N/A Police Agency
Involved: Carteret." N.J.S.A. 2C:12-1(a) criminalizes simple assault.
On a separate "continued page," W.D. provided the following information
in response to Question 73:
Other police contact 08/04/2019 North Brunswick
Police Responded to my residence around the hours of
00:43
09/24/2017 North Brunswick Police Department
Responded to my residence around the hours of 18:34
08/31/2018 North Brunswick Police Department
Responded to my residence around the hours of 01:14
W.D. also provided police dispatch reports for the three incidents.
4 A-3041-20
The dispatch report for August 4, 2019, states that officers responded to
W.D.'s residence at 12:43 a.m. for "Incident Type" "DOMESTIC." In addition,
the report states: "REPORT TAKEN" and "THERE ARE 18 INCIDENTS
OVER 1 YEAR OLD." The report provides no further relevant information.
The dispatch report for September 24, 2017, states that officers responded
to W.D.'s residence at 6:34 p.m. for "Incident Type" "DISTURBANCE." The
report indicates: "CALLER WHO WANTED TO REMAIN ANONYMOUS
STATED SHE HEARD YELLING AND SCREAMING FROM THE ABOVE
ADDRESS." In addition, the report states, "MADE CONTACT WITH
HOMEOWNER [W.J.] D/O/B [a date other than W.D.'s birthday] WHO
STATED HE MAY HAVE BEEN YELLING DURING A TELEVISED
FOOTBALL GAME. NOTHING FURTHER TO REPORT AT THIS TIME."
The report noted that "THERE ARE 17 INCIDENTS OVER 1 YEAR OLD."2
2 It is not clear if this incident report refers to W.D., given that the homeowner
is reported as W.J., although the first name in the report is the same as W.D.'s
first name and the last name in the report is similar to W.D.'s last name but
beginning with a "J." In addition, the birthday reported is the numeric for W.D.'s
day of birth followed by the numeric for his month of birth, followed by his year
of birth. The Commission made no findings with respect to whether W.D.
provided an incorrect last name, if the officer misheard W.D.'s last name, or if
someone other than W.D. informed the officers that he was the owner of W.D.'s
home. The parties have proceeded as though the report refers to W.D.
5 A-3041-20
The dispatch report for August 31, 2018, states that officers responded to
W.D.'s residence at 1:14 a.m. for "Incident Type" "DOMESTIC." The report
provides that "Caller stating that her husband was breaking things inside the
house. While attempting to obtain more information the phone cut out. No
response on callback." The report also provides: "UPON ARRIVAL WE WITH
(sic) BOTH PARTIES, NAM: [W.D.], OLN: [REDACTED] . . . & HIS WIFE:
NAM: [REDACTED], OLN: [REDACTED]. BOTH PARTIES STATED
THAT THE ARGUMENT WAS OVER THE CABLE TV AND THERE WAS
NO PHYSICAL CONTACT. [W.D.] LEFT FOR THE EVENING W/O
FURTHER INCIDENT." The report further states: "ALSO BE ADVISED
THAT THE HOME WAS ORDERLY AND WE FOUND NOTHING
BROKEN" and "THERE ARE 17 INCIDENTS OVER 1 YEAR OLD."
Question 76 asked "[h]ave you ever been held as a suspicious person or
investigated by any law enforcement or private security agency for any reason?
If yes, give details below." W.D. responded, "[n]o."
Question 84 asked "[h]ave you ever received a summons for violation of
the Motor Vehicle Laws in this or any other state? If yes, insert the required
information below." W.D. answered "[y]es." He listed five offenses: One from
2004, two from 2008, one from 2010, and one from 2012. W.D. also attached a
6 A-3041-20
New Jersey Motor Vehicles Commission (MVC) abstract of driver history
record, which listed the five violations that were reported in response to question
84, and stated that he was "involved in accident – police report" relating to the
2004 violation and was "involved in accident – police report" on three occasions
for other incidents, once in 2011, once in 2012, and once in 2013.
W.D. signed the application with a sworn statement that said, "I, [W.D.],
being duly sworn, depose and say I am the above[-]named person. I personally
read and entered answers to each and every question therein and I do solemnly
swear that each and every answer is full, true and correct in every respect."
North Brunswick decided to remove W.D. from the eligible list because
he: (1) failed to disclose four motor vehicle violations in response to Question
84 that North Brunswick uncovered by checking MVC records; (2) failed to
disclose the complete details of his interactions with police in response to
Question 73; (3) failed to respond accurately to Question 76; and (4) was
involved in multiple domestic disputes, including one in which his wife in a
recorded 9-1-1 call stated that W.D. "choked me" and "threatened to kill me,"
although she later recanted those accusations and had no physical injuries.
On December 1, 2020, the Commission notified W.D. that North
Brunswick had removed his name from the eligible list "because documentation
7 A-3041-20
indicates you falsified your application for this position." W.D. appealed North
Brunswick's decision to the Commission.
North Brunswick thereafter submitted a written explanation for its
decision to remove W.D. from the eligible list. The municipality asserted that
W.D.'s removal was justified by: (1) his failure in response to Question 76 to
list three police investigations, two involving domestic violence, that took place
at his residence on September 24, 2017, August 31, 2018, and August 4, 2019,
and to provide details of those investigations. The municipality argued that
these omissions justified W.D.'s removal pursuant to N.J.A.C. 4A:4-6.1(a)(6)
(authorizing removal from eligible list where a candidate "[h]as made a false
statement of any material fact or attempted any deception or fraud in any part of
the selection or appointment process . . . ."); N.J.A.C. 4A:4-6.1(a)(9)
(authorizing removal from eligible list for "[o]ther sufficient reasons.") ; and
N.J.S.A. 40A:14-9(4), which appears to be a typographic error, as that statute
applies to the appointment of firefighters, as well as Karins v. City of Atlantic
City, 152 N.J. 532, 562 (1998) (holding that an appointing authority can make
civil service employment decisions based on conduct that deteriorates the public
trust). In addition, North Brunswick argued that the material omissions indicate
non-compliance with the instructions in the application, a separate ground for
8 A-3041-20
removal from the eligible list pursuant to N.J.A.C. 4A:4-4.7(a)(6) (authorizing
removal from eligible list for "[n]on-compliance with the instructions listed on
the notice of certification.");
(2) his failure in response to Question 84 to disclose four motor vehicle
violations, one each on June 19, 2011, October 1, 2014, October 21, 2014, and
November 12, 2014. The municipality argued that these omissions justified
W.D.'s removal pursuant to N.J.A.C. 4A:4-6.1(a)(6), N.J.A.C. 4A:4-6.1(a)(9)
and N.J.S.A. 40A:14-9(4), as well as Karins, 152 N.J. at 562, and N.J.A.C. 4A:4-
4.7(a)(6).
W.D. argued that although he answered "[n]o" to Question 76, he provided
the information then available to him with respect to all of his interactions with
police in response to Question 73. In addition, he produced in support of his
appeal additional police reports about the three incidents, which he alleged he
had requested prior to completing the application, but which North Brunswick
did not produce because W.D. was not identified as the victim in the incidents.
W.D. certified that he answered Question 84 based on the certified driver
history abstract that he obtained from MVC. He certified that he believed that
the abstract listed all motor vehicle summons that he received.
9 A-3041-20
On May 24, 2021, the Commission issued its final decision upholding
W.D.'s removal. The Commission began its analysis with its consideration of
W.D.'s request for a hearing. The agency noted that eligible list removal appeals
are reviewed on the written record, unless it finds that a material and controlling
factual dispute requires a hearing. See N.J.S.A. 11A:2-6(b). Having found no
such dispute, the Commission proceeded without a hearing.
Regarding W.D.'s inaccurate answer to Question 76, the Commission
noted that "the primary inquiry in such a case is whether the candidate withheld
information that was material to the position sought, not whether there was any
intent to deceive on the part of the applicant." Even if W.D.'s response to
Question 73 is considered as responsive to Question 76, the Commission found
that, regardless of W.D.'s intent, his "one sentence sparse responses" to Question
73 "and the submitted reports were not sufficient" to alert North Brunswick to
the extent of his involvement in these incidents. The Commission determined
that W.D. "failed to provide a more detailed narrative regarding these incidents
as required in response to 76." The agency found that the information W.D.
failed to disclose was material and his failure to disclose it was "indicative of
[W.D.'s] lack of integrity and questionable judgment. Such qualities are
unacceptable for an individual seeking a position as a Police Officer."
10 A-3041-20
Regarding Question 84, the Commission found that W.D. was responsible
for the accuracy of the information disclosed in his application and that there is
legal precedent for removing police officer candidates because of poor driving
records, which demonstrate a disregard for the law. The Commission found
W.D.'s omission of four motor vehicle violations to be material to North
Brunswick's analysis of his background and suitability to be a police officer.
The Commission also found that the record established W.D.'s
"continuous negative interactions with the law from August 2004 including right
up to the August 31, 2019 closing date" of the test. This history, the Commission
found, "indicates that [W.D.] currently lacks the good judgment needed to be a
Police Officer." The Commission explained,
it is recognized that a municipal Police Officer is a law
enforcement employee who must enforce and promote
adherence within (sic) to the law. Municipal Police
Officers hold highly visible and sensitive positions
within the community and that (sic) the standard for an
applicant includes good character and an image of the
utmost confidence and trust. It must be recognized that
a municipal Police Officer is a special kind of
employee. His primary duty is to enforce and uphold
the law. He carries a service revolver on his person and
is constantly called upon to exercise tact, restraint and
good judgment in his relationship with the public. He
represents law and order to the citizenry and must
present an image of personal integrity and
dependability in order to have the respect of the public.
See Moorestown v. Armstrong, 89 N.J. Super. 560, 566
11 A-3041-20
(App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See
also In re Phillips, 117 N.J. 567 (1990).
The Commission, therefore, upheld North Brunswick's removal of W.D. from
the eligible list for police officer.
This appeal follows. W.D. argues: (1) the Commission's decision is
arbitrary, capricious and lacking in evidentiary support because the agency did
not consider the dispatch reports and MVC abstract W.D. submitted with his
application; (2) the Commission did not identify the material information W.D.
failed to include in his answer to Question 76 (via his answer to Question 73);
(3) W.D. reasonably believed his MVC driving history abstract included all of
the motor vehicle violations he committed and three of the unreported violations
were for W.D. driving through red lights during a pilot program, which is no
longer in place, that used cameras to capture red light violations; (4) there is
insufficient support for the Commission's finding that W.D.'s interactions with
law enforcement and driving record render him unsuitable for the position of
police officer; and (5) the Commission should have referred W.D.'s appeal to a
hearing officer to resolve disputes of material fact.
II.
Our role in reviewing the decision of an administrative agency is limited.
Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009). We will not
12 A-3041-20
disturb the decision of the Commission absent a showing "that it was arbitrary,
capricious or unreasonable, or that it lacked fair support in the evidence, or that
it violated legislative policies expressed or implicit in the civil service act."
Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
Decisions of administrative agencies carry with them a presumption of
reasonableness. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001).
Moreover, "[a]ppellate courts must defer to an agency's expertise and superior
knowledge of a particular field." Greenwood v. State Police Training Ctr., 127
N.J. 500, 513 (1992). However, we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly legal issue."
Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
"There is no constitutional or statutory right to a government job." State-
Operated Sch. Dist. v. Gaines, 309 N.J. Super. 327, 334 (App. Div. 1998). In
an appeal from a disciplinary action or ruling by an appointing authority, the
appointing authority bears the burden of proof to show, by a preponderance of
the evidence, that the action taken was appropriate. N.J.S.A. 11A:2-21;
N.J.A.C. 4A:2-1.4(a); In re Polk, 90 N.J. 550, 560 (1982).
"The name of an eligible may be removed from an eligible list for any of
the following reasons: . . . [t]he causes for disqualification listed in N.J.A.C.
13 A-3041-20
4A:4-6.1 . . . ." N.J.A.C. 4A:4-4.7(a). As noted above, N.J.A.C. 4A:4-6.1(a)(6)
provides that a candidate may be removed from the eligible list when he "[h]as
made a false statement of any material fact or attempted any deception or fraud
in any part of the selection or appointment process . . . ." In addition, a candidate
may be removed from an eligible list for "[o]ther sufficient reasons[,]" N.J.A.C.
4A:4-6.1(a)(9), including conduct that would undermine the public trust, Karins,
152 N.J. at 562.
We have carefully reviewed W.D.'s arguments in light of the record and
applicable legal principles, and conclude the Commission's final agency
decision is adequately supported by the record and is not arbitrary, capricious,
or unreasonable.
There is no dispute that W.D. answered Question 76 inaccurately. He did
not disclose in response to that question that he had been the subject of police
investigations on three occasions at his residence. While he provided minimal
information regarding those incidents in response to Question 73, he did not
explain in detail his involvement in the events that resulted in the need for police
to respond to his residence three times. In addition, it is not disputed that W.D.
failed to report four motor vehicle violations. The Commission was well within
its discretion to determine that W.D.'s purported reliance on the MVC driver
14 A-3041-20
history abstract did not excuse his failure to fully disclose his extensive history
of motor vehicle violations. We cannot discern the relevance of W.D.'s
argument that three of the violations arose from a camera capturing him ignoring
a red light.
We also see no grounds to disturb the Commission's determination that
W.D.'s involvement in two, and possibly three, domestic incidents that triggered
a police response, along with his long-term and repeated violations of the motor
vehicle laws are incompatible with the position of police officer.
To the extent we have not specifically addressed any of W.D.'s remaining
claims, we conclude they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.

SHURKIN, ESQ.v. ELAR REALTY CO

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0727-22
ARNOLD G. SHURKIN, ESQ.,
Plaintiff-Appellant,
v.
ELAR REALTY CO., LAWRENCE
H. RUDBART, DONALD RUDBART,
LINDA SIEGEL, EDWIN SIEGEL,
CINDY GOLDSTEIN, LORI MORAN,
GERAL RUDBART, ALECIA BLAKE
AND CURTIS RUDBART,
Defendants-Respondents.
____________________________________
Argued October 17, 2023 – Decided November 13, 2023
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-0021-19.
Arnold G. Shurkin, Esq., appellant, argued the cause
Pro se.
Respondents have not filed a brief.
PER CURIAM
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.
2 A-0727-22
In this attorney's fees dispute, Arnold G. Shurkin argues the trial court
erred in denying his summary judgment motion; sua sponte dismissing his
complaint with prejudice; and rejecting his recusal request. For the reasons that
follow, we affirm in part and reverse and remand in part.
I
Shurkin, a licensed New Jersey attorney, sued Elar Realty Co., Lawrence
H. Rudbart, Donald Rudbart, Linda Siegel, Edwin Siegel, Cindy Goldstein, Lori
Moran, Gerald Rudbart, Alecia Blake, and Curtis Rudbart1 for payment of
$52,062.05 for legal services rendered from 2016 through 2018. Shurkin's
action was premised on breach of contract, book account, and quantum merit.
After the trial court denied Shurkin's initial summary judgment motion,2
he filed another summary judgment motion. Defendants did not file a cross-
motion for summary judgment. The court denied the motion and sua sponte
dismissed Shurkin's complaint with prejudice.
1 Because most of the individual defendants share last names, they will be
referred to by their first names to avoid confusion.
2 The court denied Shurkin's initial motion for summary judgment because: (1)
"there was an ongoing legal malpractice matter involving ANIM Investment
Co.," a related company of Elar, and Shurkin; and (2) Shurkin "needed to 'pierce
the corporate veil.'"
3 A-0727-22
In its thoughtful written decision, the trial court stressed there were
various errors, omissions, and discrepancies in Shurkin's supporting documents.
Citing Seventy-Three Land v. Maxlar Partners, 270 N.J. Super 332, 336 (App.
Div. 1994), the court held Shurkin "[could not] show . . . liability [for individual
defendants] is possible . . . because [he] [did] not demonstrate[] that the assets
of the partnership are insufficient to be able to attach individual liability to the
partners." The court also noted Shurkin failed to meet the requirements of
N.J.S.A. 42:1A-20(a)-(b)3 to establish that Edwin Siegel was a partner of Elar
3 N.J.S.A. 42:1A-20(a)-(b) provide:
a. If a person, by words or conduct, purports to be a
partner, or consents to being represented by another as
a partner, in a partnership or with one or more persons
not partners, the purported partner is liable to a person
to whom the representation is made, if that person,
relying on the representation, enters into a transaction
with the actual or purported partnership. If the
representation, either by the purported partner or by a
person with the purported partner’s consent, is made in
a public manner, the purported partner is liable to a
person who relies upon the purported partnership even
if the purported partner is not aware of being held out
as a partner to the claimant. If partnership liability
results, the purported partner is liable with respect to
that liability as if the purported partner were a partner.
If no partnership liability results, the purported partner
is liable with respect to that liability jointly and
4 A-0727-22
and therefore liable for its legal fees. With respect to Elar's liability, the court
held Shurkin's billing "invoice[s] that span years" failed to provide Elar "the
ability to make . . . informed decision[s] concerning [his] representation," in
violation of RPC 1.3.4
Shurkin subsequently moved for reconsideration of the trial court's order
denying summary judgment and sua sponte dismissing his complaint as to all
defendants with prejudice. Shurkin also sought the court's recusal based on Rule
1:12-1(d).
severally with any other person consenting to the
representation.
b. If a person is thus represented to be a partner in an
existing partnership, or with one or more persons not
partners, the purported partner is an agent of persons
consenting to the representation to bind them to the
same extent and in the same manner as if the purported
partner were a partner, with respect to persons who
enter into transactions in reliance upon the
representation. If all of the partners of the existing
partnership consent to the representation, a partnership
act or obligation results. If fewer than all of the
partners of the existing partnership consent to the
representation, the person acting and the partners
consenting to the representation are jointly and
severally liable.
4 RPC 1.3 provides: "A lawyer shall act with reasonable diligence and
promptness in representing a client."
5 A-0727-22
On October 12, 2022, the trial court entered an order denying the requests.
In its written decision, the court stated reconsideration was not warranted under
Rule 4:49-2 because Shurkin merely rephrased his previous rejected arguments
and supplied previously omitted documents without justification. The court
found no merit in Shurkin's contention that his constitutional right to due process
was violated by the dismissal of his complaint with prejudice. The court held
that because Shurkin filed a motion for summary judgment, he was afforded a
"full opportunity to develop [his] legal and factual arguments, the ability to
respond to [d]efendants' opposition, and the opportunity to be heard at oral
argument before the [court]," therefore, he "kn[ew] the evidence and contentions
advanced." Lastly, the court rejected Shurkin's recusal request because he failed
to identify "any 'reason which might preclude a fair and unbiased hearing and
judgment, or which might reasonably lead counsel or the parties to believe so. '"
Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (citing R. 1:12-l(f)
(1994)5).
5 Rule 1:12-1 was amended in 2012, changing subsection (f) to subsection (g).
6 A-0727-22
II
In his appeal, Shurkin raises both procedural and substantive concerns.
Shurkin claims our court rules do not allow a trial court to sua sponte dismiss a
complaint with prejudice under these circumstances. He asserts Rule 4:46,
which details the procedure for summary judgment dismissal of a compliant,
was not followed by the court. The court, according to Shurkin, did not give
him the "chance to rebut the facts and law asserted by the [c]ourt."6 Shurkin
maintains denying reconsideration was "another ex parte decision that
constituted a direct violation of [his] due process rights."
Shurkin argues the trial court made three substantive errors in its decision.
First, the court misinterpreted established general partnership law by
disregarding defendants' admission that Elar is a New Jersey general
partnership, instead relying on "its own erroneous version of the law of general
partnerships." Second, the court wrongfully dismissed his fee claim,
considering his long-standing representation of defendants and their regular
6 In support of this argument, Shurkin cites an unpublished opinion from this
court. Rule 1:36-3 makes clear that absent certain exceptions not relevant here,
"[n]o unpublished opinion shall constitute precedent or be binding upon any
court." Thus, we will not consider that opinion.
7 A-0727-22
payments of his bills satisfied RPC 1.5(a)(6), which provides that "the nature
and the length of the professional relationship with the client" is a factor "to be
considered in deciding the reasonableness of a [lawyer's] fee." Third, the court
erred in requiring him to provide a separate retainer agreement for three unpaid
bills.
The merits of the trial court's dismissal are not at issue, rather the court's
failure to employ the minimal procedural requirements of due process form the
basis of our decision. Our Supreme Court has recognized that "[t]he minimum
requirements of due process of law are notice and an opportunity to be heard."
Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 84 (App. Div. 2001)
(citing Doe v. Poritz, 142 N.J. 1, 106 (1995)). The court failed to abide by these
requirements in sua sponte dismissing plaintiff's complaint with prejudice. The
record bears no mention of the court's efforts to notify Shurkin of its pending
sua sponte consideration, thus depriving Shurkin of his right to be notified—
which inherently deprived him of the right to be heard on the matter. We cannot
endorse the trial court's "swift disposition of [the case] at the expense of fairness
and justice." Id. at 83. Although Shurkin indeed raised factual contentions and
legal arguments in support of his summary judgment motion, he was given no
opportunity to address the court's contemplation that it was considering
8 A-0727-22
dismissing his complaint with prejudice. Given defendants, who were
represented by counsel, did not cross-move for summary judgement, the court
should not have acted without notifying Shurkin of its intentions.
The trial court's ruling conflicts with the principles espoused in Klier,
where we reversed the trial judge's sua sponte summary dismissal of the
plaintiffs' complaint without giving the plaintiffs sufficient notice or a
meaningful opportunity to respond to the judge's motion. Id. Despite "giv[ing]
[the] plaintiffs' attorney two days to produce his expert's report and further argue
against the motion," we held
that opportunity was insufficient to remedy the defect
in the judge's procedure. Had plaintiffs' attorney been
given sufficient advance notice of the application for
dismissal, he would have had a meaningful opportunity
to contact his expert and supply a supplemental report,
as he did on his motion for reconsideration. We cannot
condone a procedure whereby a judge sua sponte,
without notice to a party, resorts to a "shortcut" for the
purposes of "good administration" and circumvents the
basic requirements of notice and opportunity to be
heard.
[Id. at 84-85.]
Even though defendants opposed Shurkin's summary judgment motion,
they did not cross-move for summary judgment. Reversal of the trial court's sua
sponte dismissal order is appropriate because Shurkin did not have a full
9 A-0727-22
opportunity to address the trial court's concerns. Remand is appropriate for
further proceedings to resolve this dispute.
We, however, will not disturb the trial court's denial of Shurkin's summary
judgment as there are genuine issues of material fact which preclude summary
judgment. See Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (citing
R. 4:46-2(c)). In particular, there is a genuine issue of whether individual
defendants are liable for the debt of Elar because they were partners at the time
the legal services were performed.
III
Finally, we conclude it is best that remand for further proceedings be
conducted by a different trial court. We agree with Shurkin that the court should
be disqualified under Rule 1:12-1(d) because it "has given an opinion upon a
matter in question in the action." Moreover, remanding to a different trial court
avoids the potential taint or concerns due to the initial court's prior determination
that Shurkin's compliant should be dismissed. See Luedtke v. Shobert, 342 N.J.
Super. 202, 219 (App. Div. 2001) (recognizing the "time and effort the court put
into the case" but expressing concern that the original court would be in
"untenable position" on remand). We take no position on the outcome of this
matter on remand.
10 A-0727-22
We affirm in part, reverse in part, and remand for further proceedings.

IN THE MATTER OF DENIAL OF FPIC AND HANDGUN PURCHASE PERMIT

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2534-20
IN THE MATTER OF DENIAL
OF FPIC AND HANDGUN
PURCHASE PERMIT
BY ANDRIY YAREMIY.
___________________________
Argued March 2, 2022 – Decided March 15, 2022
Before Judges Hoffman, Whipple and Geiger.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Docket No. GPA-0047-
20.
Richard G. Potter argued the cause for appellant
Andriy Yaremiy (Galantucci & Patuto, attorneys;
Richard G. Potter, on the brief).
Deepa S.Y. Jacobs, Assistant Prosecutor, argued the
cause for respondent State of New Jersey (Mark
Musella, Bergen County Prosecutor, attorney; Deepa
S.Y. Jacobs, on the brief).
PER CURIAM
Appellant Andriy Yaremiy appeals from a Law Division order denying
his appeal of the denial of a Firearms Purchaser Identification Card (FPIC) and
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.
A-2534-20
2
Handgun Purchase Permit. Having considered the facts and applicable legal
principles, we reverse and remand.
We take the following facts from the record. Appellant applied for a
FPIC and Handgun Purchase Permit. The application was denied by the Chief
of the Borough of Wood-Ridge Police Department. In his letter to appellant
notifying him of the denial, the Chief stated that investigation revealed
appellant had been arrested for driving while intoxicated (DWI) in 2015. The
Chief concluded that the following statutes applied: N.J.S.A. 2C:25-19 (any
person who has been convicted of any crime, or a disorderly persons offense
involving an act of domestic violence whether or not armed with or possessing
a weapon at the time of the offense); N.J.S.A. 24:21-2 (any person who is
confined for a mental disorder to a hospital, mental institution or sanitarium, or
to a person who is presently a habitual drunkard); and N.J.S.A. 2C:58-3(c)(5)
(issuance would not be in the interest of the public health, safety or welfare).
Appellant filed a timely appeal in the Superior Court. The court
conducted a two-day hearing. The Chief testified that in 2015, appellant was
arrested in New York on a "2C violation," and in 2008, appellant received a
summons for an open container violation in Harrison, New Jersey. However,
the Chief later corrected himself, acknowledging the 2008 incident involved a
summons for consumption of alcohol by a passenger while the vehicle is being
A-2534-20
3
operated, in violation of N.J.S.A. 39:4-51a(a). Appellant was fined $256 and
costs for that violation; his license was not suspended, and he was not
sentenced to jail time.
On the 2015 offense, defendant pled guilty to a reduced charge of
driving while ability impaired (DWAI), in violation of New York Vehicle and
Traffic Law (VTL) § 1192.1, and was sentenced to a one-year conditional
discharge, no jail time, a ninety-day suspension of driving privileges, and a
$500 fine.
The Chief testified that he denied the application because of appellant's
history of alcohol, "falsification on the application," and "it not being in the
best interest" of the public safety, health, and welfare of our citizens. The
Chief related that he had never granted a firearm purchase application to
someone with a DWI conviction.
Detective David Marchitelli testified that he believed appellant's prior
involvement with alcohol and motor vehicles showed a lack of judgment and
disregard for the law. Marchitelli was also concerned that appellant was not
truthful when questioned about the 2015 DWI arrest. He concluded the
application should be denied based on a risk to public health, safety, and
welfare.
A-2534-20
4
The State presented no evidence that appellant was a habitual drunkard,
suffered from mental health conditions, had been confined for a mental
disorder to a hospital or psychiatric treatment facility, or had any history of
committing domestic violence. The Chief confirmed that no domestic violence
complaints or drunk and disorderly complaints had ever been filed against
appellant. He also acknowledged that other than the DWI arrest, he did not
know appellant to be a habitual drunkard and was not aware if appellant had
any psychological problems.
The State alleged appellant omitted pertinent information from his
application regarding the alleged criminal violation. The application asked
appellant if he had ever been convicted of a crime in New Jersey or of any
criminal offense in any other jurisdiction where he could be sentenced to more
than six months in jail. Appellant did not report his DWI conviction or open
container violation on his application. The State argued that appellant was
barred by N.J.S.A. 2C:58-3(c)(3) from obtaining a FPIC and handgun purchase
permit because he falsified his application by omitting the DWI conviction.
The State contended that the New York DWI conviction was a criminal
offense. However, the Certificate of Disposition issued by Criminal Court of
the City of New York, County of Richmond states that appellant pled guilty to
violating VTL § 1192.1, which is a motor vehicle violation, not a crime, under
A-2534-20
5
New York law. Therefore, the court found appellant answered the question
truthfully.
Appellant contended he had never been convicted of a crime in New
Jersey or any other jurisdiction. He asserted his DWI offense was a motor
vehicle violation, as was his consumption of alcoholic beverage in a motor
vehicle violation. The State did not introduce evidence proving otherwise.
Appellant testified that he is thirty-eight years old, has been married for
eleven years, has three children, and owns a business. He was born in Ukraine
and is an American citizen. He has never been treated by a psychologist or
psychiatrist and has never been hospitalized for a psychiatric problem.
Regarding the 2008 consuming an alcoholic beverage in a vehicle charge,
appellant testified he pled guilty without the advice of counsel. He claimed he
was a passenger in a van driven by a friend and was unaware there was an
open container in the vehicle.
The court issued an order and accompanying written decision denying
the appeal. Despite the uncontroverted evidence introduced at the hearing and
the court's conclusion that appellant answered the question regarding criminal
convictions truthfully, the court found appellant's "connection with the truth "
was "tenuous." The court found the evidence showed appellant had consumed
alcohol in a motor vehicle and pled guilty. The court concluded that appellant
A-2534-20
6
minimized the "significance of the arrest and consequences" to the police and
during the hearing.
Although the court found the DWI conviction was not a per se
disqualification, nor was his "less-than-truthful response to the detective's
questioning," the court determined that appellant's lack of "insight into the
gravity of his past involvement with alcohol within motor vehicles" justified
the denial of the application.
The court found the Chief and Detective Marchitelli had "excellent
recall" and their testimony was "consistent and highly credible." The court
found appellant's "testimony was less credible. His testimony conflicted with
Marchitelli's testimony." The court opined that appellant
seemed oblivious to the gravity of his prior conduct.
When questioned about follow-up treatment after his
arrest for driving while impaired, the perfunctory
nature of his response was particularly troubling. He
provided little detail about the program that he
attended and offered no evidence that he learned
anything from the experience.
The court noted, however:
When questioned about any subsequent treatment, he
responded that he was, "advised by the court to attend,
I forgot what it was called, I had to be present for an
entire day and I listened to the presentation by a
mother and a father who had their daughter killed by a
drunk person and so they had this big presentation
about that and there [were] a lot of people in the room
A-2534-20
7
and, you know, that was the only thing that I was
required to do . . . ."
The court made the following findings. Appellant "has no prior
involvement with the criminal justice system, no history of any involvement in
domestic violence matters, and no mental health issues." When interviewed by
Marchitelli, appellant acknowledged he was arrested in 2015, "but denied he
was ever charged and reported he was found not guilty." The police report
indicated that a preliminary alcohol breath test measured a 0.158 Blood
Alcohol Content (BAC), and appellant was arrested for DWI under New York
statute VTL § 1192.1. Appellant pled guilty and was fined $500, and his
driving privileges were suspended for ninety days. He completed a conditional
discharge.
The court noted that because a conviction of driving while impaired
under New York statute VTL § 1192.1 only exposes the defendant to up to
fifteen days in jail and a fine of $300 to $500, appellant "has never been
convicted of a crime and his response on the application was truthful."
The court found that "[t]he public health, safety, or welfare disqualifier
is intended to relate to cases of individual unfitness, where, though not dealt
with in the specific statutory enumerations, the issuance of a permit or
identification card would nonetheless be contrary to the public interest." The
court considered appellant's alcohol use even though it did "not rise to
A-2534-20
8
alcoholism or habitual drunkenness." The court likewise considered
appellant's motor vehicle convictions even though those offenses were not
"listed in N.J.S.A. 2C:58-3(c)."
The court found the State met its burden of showing "[b]y a
preponderance of the evidence, [that] the issuance of [a] FPIC or Handgun
Purchase Permit to appellant would pose a threat to the public health, safety,
and welfare." The court concluded appellant "lacks insight into the gravity of
his past involvement with alcohol within motor vehicles" and "appeared to
have not gained any benefit from the program he was required to attend after
his conviction." While recognizing that "the right to bear arms is guaranteed
in the [United States] Constitution," the court found good cause to deny
appellant's application.
This appeal followed. Appellant argues:
UPHOLDING THE DENIAL OF THE
APPLICATION FOR A FIREARMS PURCHASE
IDENTIFICATION CARD AND/OR HANDGUN
PURCHASE PERMIT WAS NOT SUPPORTED BY
SUBSTANTIAL CREDIBLE EVIDENCE.
A judicial determination that a defendant poses a threat to the public
health, safety, and welfare is a fact-sensitive analysis. In re Forfeiture of Pers.
Weapons & Firearms Identification Card belonging to F.M., 225 N.J. 487, 505
(2016) (citing State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004)).
A-2534-20
9
Therefore, "an appellate court should accept a trial court's findings of fact that
are supported by substantial credible evidence." Ibid. (quoting In re Return of
Weapons to J.W.D., 149 N.J. 108, 116-17 (1997)). "Therefore, 'we do not
disturb the factual findings and legal conclusions of the trial judge unless we
are convinced that they are so manifestly unsupported by or inconsistent with
the competent, relevant and reasonably credible evidence as to offend the
interests of justice.'" Id. at 506 (quoting Rova Farms Resort v. Inv'rs Ins. Co.,
65 N.J. 474, 484 (1974)); see also J.W.D., 149 N.J. at 117 (explaining that this
is especially true when "the evidence is largely testimonial and involves
questions of credibility."). However, questions of law are reviewed by the
appellate division de novo. In re F.M., 225 N.J. at 506.
Although the right to bear arms is guaranteed by the Second Amendment
of the U.S. Constitution, a state's police power allows it to place "reasonable
limitations" on firearms ownership. Ibid. (quoting D.C. v. Heller, 554 U.S.
570, 626 (2008)). As a result, our legislature requires a person seeking to own
firearms to apply for an identification card and permit. Id. at 507.
Balancing those competing interests—the right to bear arms and
reasonable limitations on gun ownership to protect the public—N.J.S.A.
2C:58-3(c) provides:
No person of good character and good repute in the
community in which he lives, and who is not subject
A-2534-20
10
to any of the disabilities set forth in this section or
other sections of this chapter, shall be denied a permit
to purchase a handgun or a firearms purchaser
identification card, except as hereinafter set forth.
The statute was enacted to prevent "statutorily 'unfit' persons from
possessing firearms." Cordoma, 372 N.J. Super. at 538. Relevant to this case,
the disabilities preventing firearm ownership include "any person who has
been convicted of any crime or a disorderly persons offense involving an act of
domestic violence[,]" N.J.S.A. 2C:58-3(c)(1); "any drug-dependent person"
and "any person who is confined for a mental disorder to a hospital [or] mental
institution" or "any person who is presently an habitual drunkard[,]" N.J.S.A.
2C:58-3(c)(2); "any person who knowingly falsifies any information on an
application form for a handgun purchase permit or firearms purchaser
identification card[,]" N.J.S.A. 2C:58(c)(3); and "any person where the
issuance [of the permit] would not be in the interest of the public health, safety
or welfare[,]" N.J.S.A. 2C:58(c)(5). Any one of these disabilities is legally
sufficient to deny the issuance of a permit to own or possess a firearm.
Cordoma, 372 N.J. Super. at 534.
The initial determination to grant or deny a FPIC or permit to purchase a
handgun is made by the chief of police of the municipality where the applicant
resides. N.J.S.A. 2C:58-3(d). The police chief must grant a FPIC and permit
"unless good cause for the denial thereof appears[.]" N.J.S.A. 2C:58-3(f). A
A-2534-20
11
denied applicant may request a hearing in the Law Division. In re F.M., 225
N.J. at 508 (citing N.J.S.A. 2C:58-3(d); N.J.A.C. 13:54-1.12(a)). The Law
Division court conducts a de novo hearing to review the facts and
independently determine whether the applicant is entitled to a FPIC or
handgun purchase permit. In re Z.L., 440 N.J. Super. 351, 357 (App. Div.
2015). At the hearing, "the police chief has the burden of proving an applicant
is not qualified to receive a handgun permit." Ibid. (citing In re Osworth, 365
N.J. Super. 72, 77 (App. Div. 2003)). The police chief must prove the
disqualification by a preponderance of the evidence. Id. at 358 (citing
Osworth, 365 N.J. Super. at 77).
N.J.S.A. 2C:58-3(c)(5) governs "cases of individual unfitness, where,
though not dealt with in the specific statutory enumerations, the issuance of the
permit or identification card would nonetheless be contrary to the public
interest." Id. at 356 (quoting Osworth, 365 N.J. Super. at 79). The court may
consider the underlying facts even if a criminal charge is dismissed. Osworth,
365 N.J. Super. at 78 (citing J.W.D., 149 N.J. at 110).
In State v. Freysinger, a defendant had to forfeit his firearms and was
found to be a "habitual drunkard" because he had two DWI convictions, two
convictions for refusing to submit to chemical tests, and admitted that he hit a
pedestrian (whom he claimed did not know was his girlfriend) with his car but
A-2534-20
12
did not stop and drove straight home and went to bed. 311 N.J. Super. 509,
516-17 (1998). In contrast, appellant had one DWI conviction in 2015, and a
consumption of alcohol in a motor vehicle conviction in 2008, twelve years
before he applied for the FPIC and handgun purchase permit.
As the Law Division judge found, appellant did not falsify his
application. Appellant is not disqualified by any of the disabilities set forth in
subsections (1), (2), (3), (6) or (8) of N.J.S.A. 2C:58-3. Only subsection (5) is
at issue. The State was required to prove by a preponderance of the evidence
that granting a FPIC or handgun purchase permit to appellant "would not be in
the interest of the public health, safety or welfare[.]" N.J.S.A. 2C:58-3(c)(5).
Our careful review of the record convinces us that the State did not satisfy that
burden.
The consumption of alcohol in a motor vehicle incident as a passenger
occurred twelve years before the application was filed. Alcohol consumption
by a passenger does not pose a risk to public health, safety, or welfare. The
DWI occurred five years before the application. There have been no repeat
offenses. Neither conviction was related to weapons or domestic violence.
Both were motor vehicle offenses. Appellant is thirty-eight years old. He has
never been convicted of a crime or disorderly persons offense, let alone one
A-2534-20
13
related to domestic violence. Nor is there any evidence that defendant
currently abuses alcohol.
Any misinformation relayed to Detective Marchitelli may well have been
caused by the technical aspects of the New York DWI statute and the fact that
neither the New York charge that he pled guilty to, nor the New Jersey offense
involved crimes or disorderly persons offenses. The confusion of the Chief
that the New York offense was a 2C violation appears to have resulted from
appellant originally being charged with DWI, in violation of VTL § 1192.2,
but pleading guilty to the reduced charge of DWAI, in violation of VTL §
1192.1.
DWI is a misdemeanor under New York law that is punishable by a jail
term of up to one year and probation for up to three years, a fine of up to
$2500, and a license suspension of up to one year. Penalties for Alcohol or
Drug-related Violations, N.Y. DEP'T OF MOTOR VEHICLES.1 It is a per se
offense that involves driving with a BAC of 0.08 or higher. Ibid. In contrast,
DWAI by alcohol is a "violation," not a felony or misdemeanor under New
York law, and for a first offense is punishable by a jail term of up to fifteen
days, a fine up to $500, and a license suspension of up to ninety days. Ibid. It
1 https://dmv.ny.gov/tickets/penalties-alcohol-or-drug-related-violations (last
visited Mar. 7, 2022).
A-2534-20
14
involves driving with a BAC more than 0.05 but less than 0.07. Ibid. While
perhaps confusing to the Chief, Detective Machitelli, and appellant, the
offenses and their respective sentencing ranges are clearly different. And
while DWI is punishable in New York by up to one year in jail, by being
labelled a misdemeanor, it is hardly surprising that appellant, who lives in
New Jersey and is not an attorney, would not know that it technically falls
within the definition of a crime under N.J.S.A. 2C:1-4(a) because it is
punishable by imprisonment in excess of six months.
Moreover, even if a misdemeanor under New York law largely equates
to a disorderly persons offense under New Jersey law, disorderly persons
offenses are not crimes under our Criminal Code. N.J.S.A. 2C:1-4(b).
Therefore, by answering that he had never been convicted of a crime or
disorderly persons offense in New Jersey or a criminal offense in another
jurisdiction where he could have been sentenced to six or more months in jail,
appellant was neither untruthful nor misleading.
Reversed and remanded for the Law Division to enter an order granting a
FPIC and handgun purchase permit to appellant. We do not retain jurisdiction.

KIRK SPARKS v. ERIC BARNES

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3117-21
KIRK SPARKS,
Plaintiff-Appellant,
v.
ERIC BARNES and
JONATHAN GILMORE,
Defendants-Respondents.
____________________________
Submitted September 26, 2023 – Decided November 9, 2023
Before Judges Gilson and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1735-19.
Jacobs & Barbone, PA, attorneys for appellant (David
A. Castaldi, on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondents (Sookie Bae-Park, Assistant Attorney
General, of counsel; Jae K. Shim, Deputy Attorney
General, on the brief).
PER CURIAM
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.
2 A-3117-21
Plaintiff Kirk Sparks appeals from a June 10, 2022, order dismissing his
complaint with prejudice for failure to comply with a court order compelling
him to appear for an independent medical examination (IM Examination) that
had been requested in discovery. The IM Examination was relevant to plaintiff's
claim, but he had persistently refused to submit to the examination. Because the
trial court followed the procedures under Rule 4:23-5, and because we discern
no abuse of discretion, we affirm.
I.
This action involves plaintiff's claim that an investigator and a Deputy
Attorney General with the Division of Criminal Justice violated his civil rights
by procuring a criminal indictment from a grand jury by presenting inaccurate
information and not presenting exculpatory information. Plaintiff filed this
action after the criminal court dismissed the indictment.
Plaintiff is a former Atlantic City police officer. On March 27, 2014, he
and several other officers were involved in a high-speed automobile chase of a
suspect. Ultimately, the suspect and the officers fired shots and the suspect was
killed.
Following the shooting incident, plaintiff was on leave for a year. In April
2015, plaintiff returned to work on "light duty" until he retired on July 1, 2015.
3 A-3117-21
Between April 2014 and September 2015, plaintiff was treated by or examined
by four medical professionals, all of whom diagnosed plaintiff with post-
traumatic stress disorder (PTSD) related to the shooting incident.
Before retiring, plaintiff submitted multiple applications for accidental
disability pension benefits, all of which listed his disability as "PTSD stemming
from on[-]duty, officer[-]involved shooting resulting in fatality of suspect." One
of the four medical professionals who had examined plaintiff was Dr. Daniel B.
LoPreto, a psychologist. LoPreto examined plaintiff on September 18, 2015, on
behalf of the pension system. Like the other medical professionals, LoPreto
diagnosed plaintiff with PTSD and opined that plaintiff was permanently
disabled and unable to serve as a police officer. In November 2015, plaintiff
was granted an accidental disability retirement pension from the Police and
Firemen's Retirement System (pension system).
In April 2015, before his retirement from the Atlantic City Police
Department, plaintiff applied for a position as a "role player" with Ramcor
Services Group, Inc. (Ramcor), a private company that trains federal Air
Marshals and Transportation Security Officers. Ramcor listed plaintiff as being
hired on May 6, 2015, but plaintiff's first day of work at Ramcor was November
20, 2015. As a "role player" with Ramcor, plaintiff participated in training
4 A-3117-21
scenarios that simulated security threat situations such as hijackings. Those
scenarios sometimes involved the use of fake weapons and simulated firing of
guns.
In April 2016, the Pension Fraud and Abuse Unit of the Division of
Pensions and Benefits sent a memo to the Division of Criminal Justice
requesting an investigation of whether plaintiff had committed pension fraud.
The memo noted that the nature of plaintiff's work with Ramcor appeared to be
inconsistent with his stated PTSD symptoms. The memo also suggested that
plaintiff had not disclosed his employment with Ramcor to the medical
professionals who examined him or to the Trustees of the pension system.
Investigator Eric Barnes and Deputy Attorney General Jonathan Gilmore
(defendants), who both worked at the Division of Criminal Justice, were
assigned to investigate plaintiff's alleged pension fraud. Following an
investigation, defendants presented information to a grand jury. On December
7, 2016, the grand jury indicted plaintiff for one count of second-degree theft by
deception in violation of N.J.S.A. 2C:20-4.
Plaintiff moved to dismiss the indictment, contending that the presentation
to the grand jury included inaccurate information and excluded exculpatory
information. On June 30, 2017, a Criminal Division judge granted that motion.
5 A-3117-21
The judge found that the State had not presented sufficient evidence to establish
that plaintiff intended to deceive the medical professionals who evaluated him
to obtain a PTSD diagnosis. In other words, the court found that the State had
failed to present prima facie evidence on the necessary mens rea element of
second-degree theft by deception. The judge also found that there were "several
material factual inaccuracies" presented to the grand jury; therefore, the judge
dismissed the indictment without prejudice to the State's right to re-present the
case to another grand jury. There is nothing in the record before us indicating
that the State re-presented the case to another grand jury.
Two years after the criminal case was dismissed, in August 2019, plaintiff
was re-examined by LoPreto. As previously noted, LoPreto had initially
examined plaintiff in September 2015. LoPreto noted that at the initial
examination, plaintiff had not disclosed his plans to work for Ramcor.
Nevertheless, LoPreto ultimately concluded that plaintiff was still suffering
from PTSD and that he was still permanently disabled and not able to perform
the duties of a police officer.
On June 29, 2019, before Dr. LoPreto examined plaintiff, plaintiff filed a
civil complaint in the action underlying this appeal against defendants. Plaintiff
asserted one claim alleging a violation of the New Jersey Civil Rights Act (CR
6 A-3117-21
Act), N.J.S.A. 10:6-2. Plaintiff contended that defendants had misrepresented
the facts of the case and presented false information to the grand jury to procure
his indictment. In terms of damages, plaintiff alleged that defendants' action s
caused him "serious and substantial damages and injuries, including, but not
limited to, emotional distress, aggravation and exacerbation of his disability, as
well as substantial economic and non-economic damages."
Thereafter, the parties conducted discovery. In July 2021, defendants
served plaintiff with a notice requiring him to appear for an IM Examination by
Dr. Mark Siegert, a psychologist. In response, plaintiff filed a motion for a
protective order, seeking to limit the examination to plaintiff's emotional
distress and whether plaintiff's PTSD was exacerbated and to prevent the IM
Examination from calling into question plaintiff's PTSD diagnoses. Defendants
cross-moved, asserting that if plaintiff's motion was granted, plaintiff's claims
should be limited to economic-loss damages. On September 21, 2021, the trial
court issued an order denying plaintiff's motion for a protective order, denying
defendants' motion to bar plaintiff's claims for emotional distress and
exacerbation of his PTSD, and ordering plaintiff to submit to an IM Examination
with Siegert within forty-five days.
7 A-3117-21
The IM Examination was then scheduled for November 9, 2021. On
October 18, 2021, plaintiff's counsel requested that defendants agree to a
protective order limiting the use of the IM Examination report. Defendants
refused that request and twice asked plaintiff's counsel to confirm that plaintiff
would appear for the examination. Plaintiff's counsel never responded to those
requests. On November 9, 2021, plaintiff did not appear for the IM
Examination. Thereafter, defendants sent plaintiff, via his counsel, an invoice
for $6,300 to cover the expenses incurred by Siegert when plaintiff failed to
attend the examination.
Shortly thereafter, on November 16, 2021, defendants moved to dismiss
plaintiff's complaint without prejudice under Rule 4:19 and Rule 4:23-5(a)(1)
because plaintiff had failed to appear for the court-ordered IM Examination.
Plaintiff cross-moved for a protective order to reschedule the IM Examination
but limit the use of the IM Examination report and prevent disclosure of the
report to third parties. Plaintiff contended that because of the prior criminal
proceeding, he had concerns that the IM Examination report would be sent to
other government agencies, including the pension system, and used for "some
wrong purpose."
8 A-3117-21
On December 22, 2021, the trial court entered an order dismissing
plaintiff's complaint without prejudice and conditioning reinstatement on
plaintiff appearing for an IM Examination and paying the $6,300 cost related to
the missed IM Examination. The court also denied plaintiff's cross-motion for
a protective order, finding that plaintiff had not shown good cause. In making
those rulings, the court found that the IM Examination was relevant to assessing
plaintiff's alleged damages claims.
Plaintiff moved for reconsideration of the requirement that he pay $6,300
before his complaint was reinstated. The trial court denied that motion on
February 4, 2022.
On April 8, 2022, defendants moved to dismiss plaintiff's complaint with
prejudice under Rule 4:23-5(a)(2). Defendants pointed out that more than sixty
days had passed since the court dismissed the complaint without prejudice and
plaintiff had not rescheduled the IM Examination or paid the $6,300.
Plaintiff's counsel had not served an affidavit reciting that plaintiff had
been served with notice of the motion to dismiss with prejudice. Accordingly,
the trial court adjourned the motion and entered an order to show cause for
plaintiff's counsel to explain why he had not provided the affidavit. At a hearing
on June 10, 2022, plaintiff, through counsel, argued that his primary concern
9 A-3117-21
with submitting to the IM Examination arose out of his mistrust of the State.
The trial court found that plaintiff's "subjective belief" concerning the State's
motives did not constitute an exceptional circumstance. The trial court then
found that plaintiff had not demonstrated any exceptional circumstances for his
failure to comply with the discovery request and requirements for reinstatement
within the required sixty-day time period and had not moved to vacate.
Consequently, on June 10, 2022, the trial court entered an order dismissing
plaintiff's complaint with prejudice in accordance with Rule 4:23-5(a)(2).
Plaintiff now appeals from that order.
II.
On appeal, plaintiff argues that the trial court abused its discretion by
dismissing his entire case. He contends that the trial court should have imposed
the lesser sanction of dismissing only the emotional distress and exacerbation of
PTSD claims. Additionally, plaintiff asserts that the trial court abused its
discretion by not entering a protective order.
We review a trial court's decision to reinstate or dismiss a complaint under
an abuse of discretion standard. St. James AME Dev. Corp. v. City of Jersey
City, 403 N.J. Super. 480, 484 (App. Div. 2008); Abtrax Pharms., Inc., v. Elkins-
Sinn, Inc., 139 N.J. 499, 517 (1995). When dismissing a complaint with
10 A-3117-21
prejudice for failure to provide discovery, "meticulous attention" to the rules of
court is required. Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super.
368, 376-77 (App. Div. 1992).
The meticulous standard is rooted in well-established principles of justice.
One of the primary goals of litigation is to afford parties a fair hearing that
resolves the "disputes on the merits." St. James, 403 N.J. Super. at 484.
"[B]ecause dismissal with prejudice is 'the ultimate sanction,' it should be
imposed 'only sparingly' and 'normally . . . ordered only when no lesser sanction
will suffice to erase the prejudice suffered by the non-delinquent party.'" Salazar
v. MKGC + Design, 458 N.J. Super. 551, 561-62 (App. Div. 2019) (quoting
Robertet Flavors, Inc. v. Tri-Form Constr. Inc., 203 N.J. 252, 274 (2010)).
Nevertheless, "a party invites this extreme sanction by deliberately pursuing a
course that thwarts persistent efforts to obtain the necessary facts." Abtrax
Pharms., 139 N.J. at 515.
Failure to comply with a demand for discovery issued in accordance with
Rule 4:19 subjects the non-compliant party to dismissal proceedings in
accordance with Rule 4:23-5. R. 4:23-5(a)(1). Dismissal under Rule 4:23-5 is
a two-step process that must be strictly adhered to before a court can impose the
sanction of dismissal for failure to fulfill a discovery obligation. Thabo v. Z
11 A-3117-21
Transp., 452 N.J. Super. 359, 369 (App. Div. 2017) (citing St. James, 403 N.J.
Super. at 484). First, the moving party must seek dismissal without prejudice.
R. 4:23-5(a)(1). Thereafter, the non-compliant party has sixty days to cure and
move to vacate the dismissal order. R. 4:23-5(a)(2). Courts may also order
sanctions and counsel fees as a condition of reinstatement. See Sullivan v.
Coverings & Installation, Inc., 403 N.J. Super. 86, 94 (App. Div. 2008). Second,
the moving party may only seek dismissal with prejudice once the sixty -day
period has expired without the non-compliant party curing the discovery defect.
R. 4:23-5(a)(2). The motion to dismiss with prejudice "shall be granted" unless
a motion to vacate was filed and "either the demanded and fully responsive
discovery has been provided or exceptional circumstances are demonstrated."
Ibid. To establish exceptional circumstances, the delinquent party must prove
"external factors . . . which substantially interfered with the party's ability to
meet the discovery obligations." Rodriguez v. Luciano, 277 N.J. Super. 109,
112 (App. Div. 1994) (quoting Suarez v. Sumitomo Chem. Co., 256 N.J. Super.
683, 689 (Law Div. 1991)).
The goal of the two-step procedure in Rule 4:23-5 is to compel discovery
compliance rather than dismiss complaints. Adedoyin v. Arc of Morris Cnty.
Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999). While the rule's
12 A-3117-21
structure reflects that preference for resolutions of disputes on the merits, "the
rule affords a party aggrieved by dilatory discovery tactics a remedy to compel
production of the outstanding discovery and the right to seek final resolution
through the two-step dismissal process." Sullivan, 403 N.J. Super. at 96.
The record supports the trial court's decision to dismiss plaintiff's
complaint with prejudice. Defendants requested plaintiff to submit to an IM
Examination in July 2021. Plaintiff failed to appear for the scheduled
examination on November 9, 2021. Thereafter, defendants followed the
procedures set forth in Rule 4:23-5. First, they moved for a dismissal without
prejudice and the trial court granted that motion on December 22, 2021. Plaintiff
failed to move for reinstatement within sixty days. Accordingly, in April 2022,
defendants moved to dismiss with prejudice. The court delayed the hearing on
that motion until June 10, 2022, but then granted it after finding that there were
no exceptional circumstances justifying plaintiff's non-compliance.
In summary, almost a year passed between defendants requesting the IM
Examination in July 2021 and the dismissal of plaintiff's complaint with
prejudice for non-compliance in June 2022. Given the number of motions that
were filed concerning the IM Examination, it is a fair conclusion that plaintiff
13 A-3117-21
willfully refused to be examined even when he knew the consequence warranted
a dismissal with prejudice.
We are not persuaded by plaintiff's arguments that he would have
complied with an IM Examination if the trial court had granted him a protective
order. Plaintiff twice moved for a protective order. In essence, plaintiff sought
to dictate the conditions of the examination and control how the report of the
examination could be used. The trial court found that there was no good cause
supporting plaintiff's requests for a protective order and we discern no abuse of
discretion in that finding.
We are also not persuaded by plaintiff's argument that the trial court
abused its discretion by not imposing a lesser sanction. The trial court found
that the IM Examination was relevant discovery and that it related to all of
plaintiff's damage claims. Here again, we discern no abuse of discretion.
Importantly, the court denied plaintiff's request for a protective order when it
entered the order dismissing the complaint without prejudice. Plaintiff,
therefore, had a clear choice: he could appear for the IM Examination and pay
$6,300; or he could continue to refuse to appear, and his complaint would be
dismissed with prejudice. Given that record, we cannot say it was an abuse of
discretion for the trial court to dismiss all of plaintiff's claims with prejudice as
14 A-3117-21
opposed to dismissing only the emotional distress and exacerbation of PTSD
damages claims.
Affirmed.