Preview
HNT-L-000401-22 05/24/2023 Pg 1 of 9 Trans ID: LCV20231634161
MICHAEL B. FUSCO, Esq. (#01148-2010)
Levinson Axelrod, P.A. FILED
2 Lincoln Highway, P.O. Box 2905 May 24, 2023
Edison, NJ 08818 Haekyoung Suh, J.S.C.
Chambers
T: (732) 494-2727
F: (732) 494-2712
mfusco@njlawyers.com
Attorneys for Plaintiff Estate of Tara Temby
:
PAUL J. TEMBY, ADMINISTRATOR, : SUPERIOR COURT OF NEW JERSEY
THE ESTATE OF TARA FLORENCE : LAW DIVISION – HUNTERDON COUNTY
TEMBY, :
: DOCKET NO. HNT-L-401-22
Plaintiff, :
: Civil Action
v. :
: ORDER
NICHOLAS PRIVITERA, JOHN DOE 1- :
10 & ABC CORPORATIONS 1-10, :
:
Defendants. :
:
THIS MATTER having been opened to the Court by Michael B. Fusco, Esq. of the Law
Firm of Levinson Axelrod, P.A., attorneys for plaintiff, and the Court having reviewed and
considered the moving papers of the movant and any responses thereto, and for good cause having
been shown;
IT IS on this 24th day of May, 2023;
ORDERED that the plaintiff’s motion is hereby GRANTED DENIED;
IT IS FURTHER ORDERED that the Proof Hearing ruling of a ‘no cause’ on damages
is hereby vacated; and
IT IS FURTHER ORDERED that the Proof Hearing Judge is hereby recusing themselves
from this matter pursuant to Rule 1:12-1(d); and
IT IS FURTHER ORDERED that the Assignment Judge will reschedule the matter for a
new proof hearing on damages before the Hon. ________________________________; and
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IT IS FURTHER ORDERED that a copy of this Order shall be deemed served on all
attorneys of record via e-filing on the date set forth herein. Pursuant to Rule 1:5-1(a), movant shall
serve a copy of this Order on all parties not served electronically, nor served personally in court
this date, within seven (7) days of the date of this Order.
/s/Haekyoung Suh_______
HON. HAEKYOUNG SUH, J.S.C.
☐ Opposed
☒ Unopposed
Plaintiff’s motion to vacate and for recusal is denied. See attached Statement
of Reasons.
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Statement of Reasons Pursuant to R. 1:7-4
Paul J. Temby, Administrator, The Estate of Tara Florence Temby v.
Nicholas Privitera, John Does 1-10 & ABC Corporations 1-10, HNT-L-401-22
This matter arises out of a motor vehicle accident that occurred on October
2, 2020. Tara Florence Temby, a pedestrian, was struck by a vehicle operated by
Nicholas Privitera while crossing the street. Ms. Temby sustained fatal injuries
and died intestate that same day. Ms. Temby’s brother, Paul J. Temby, applied for
and was granted Letters of Administration ad Prosequendum by the Hunterdon
County Surrogate’s Office on December 28, 2020. Ms. Temby’s adult son, Paul
Temby, renounced his right of Administration ad Prosequendum, along with Ms.
Temby’s sisters, Linda Chapuis and Deneace Presher.
Plaintiff, the Administrator of Ms. Temby’s Estate, filed a complaint against
defendant, Nicholas Privitera, seeking damages, interest, and costs. Plaintiff
brought a survivorship action on behalf of the Estate of Ms. Temby “for any claims
that may exist for her conscious pain and suffering,” and, a wrongful death action
on behalf of Ms. Temby’s dependents and/or rightful heirs. Defendant was served
on October 11, 2022, but did not timely file an answer or otherwise respond. On
December 9, 2022, plaintiff filed a request for entry of default and a proof hearing
on damages.
At the proof hearing on April 12, 2023, the only testimonial evidence came
from Paul J. Temby, who was not present at the time of Ms. Temby’s fatal
accident. The court determined Mr. Temby’s testimony to be textbook hearsay as
he had no direct knowledge of the circumstances of Ms. Temby’s death. He was
informed of her death from Ms. Temby’s boyfriend, David Rivera, who did not
testify at the proof hearing.
At the conclusion of the proof hearing, this court entered its oral decision,
which was amended and supplemented by a written decision on April 25, 2023,
summarized in greater detail below. While noting there were several factors
present that would weigh in favor of a finding of comparative negligence,
including Ms. Temby’s toxicology at the time of death and her failure to use a
crosswalk, the court determined that as defendant was not present to rebut
plaintiff’s proofs, plaintiff successfully proved a prima facie case of negligence.
Finding that defendant caused the accident, the only remaining issue to determine
was what, if any, damages were to be assessed.
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The court determined that plaintiff had failed to present any credible
evidence that Ms. Temby was conscious after the collision. Plaintiff relied solely
on one document—the Certificate of Death—which indicated the time between
onset and death was a “few minutes.” Without eyewitness or expert testimony that
decedent was conscious, even for one second, the court found plaintiff had not met
its burden to prove conscious pain and suffering. At the close of the hearing, the
plaintiff asked whether he could supplement the record to call a medical examiner
as a witness to testify about decedent’s pain and suffering. The court (twice)
invited plaintiff to present expert testimony about how long plaintiff believed
decedent was conscious before she died.
Instead of supplementing the record with necessary proofs, on April 18,
2023 – before the court entered its final written decision – plaintiff moved to
vacate the proof hearing ruling concerning damages and for judicial recusal due to
improper bias. Plaintiff contends this court’s line of questioning as to who has
current care and custody of D.E.A. explicitly implied this court’s personal
knowledge of D.E.A.’s case and that he had been removed from his father’s
custody after Ms. Temby’s passing.
Plaintiff further avers this court conducted an improper inquiry as to Ms.
Temby’s history of substance use and toxicology at the time of her death. Plaintiff
contends that evidence of a person’s character or a trait thereof is inadmissible
when it is not a clear or defense and was not relevant to plaintiff’s claims.1
Survivorship Action
No testimony was offered by a medical expert, emergency medical
technician, police officer, medical examiner or any eyewitness to the accident.
Plaintiff produced a copy of Ms. Temby’s final autopsy report prepared by Dr.
Steven M. Diamond of the Hunterdon County Medical Examiner’s office, which
listed Ms. Temby’s cause of death as “Exsanguination.” The death certificate
noted Ms. Temby was pronounced dead at approximately 7:37 p.m. and that the
interval between onset and death was a “few minutes.” There was no indication in
any document or testimony that Ms. Temby was conscious for any of those few
minutes. Mr. Temby testified he did not know if Ms. Temby was alive or
conscious at the time of impact.
1
Plaintiff further contended this court erred in determining that plaintiff had not presented sufficient proofs on his
wrongful death claims. This argument, however, is rendered moot in light of the court’s supplemental written
decision, which awarded Ms. Temby’s minor son, D.E.A. damages of $50,000 for losses suffered as a result of Ms.
Temby’s untimely death.
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This court inquired as to whether plaintiff had any evidence – such as
witness or expert testimony – as to how long Ms. Temby was conscious after the
initial impact and her final death. Plaintiff relied entirely on the death certificate
noting Ms. Temby survived for “a few minutes.” Plaintiff was unable to explain
exactly how long she survived or whether she was conscious at any point after the
collision with defendant’s car. In the absence of any evidence that Ms. Temby was
conscious after the impact and before her death on site, the court dismissed
plaintiff’s survival claim for Ms. Temby’s conscious pain and suffering.
Wrongful Death
At her time of death, Ms. Temby was 46 years old and unemployed. She
was single and had two children—an eighteen-year-old son, Paul Temby (“Paul”)
who did not reside with her, and a minor child, D.E.A. Only D.E.A. and D.E.A.’s
natural father, David Rivera, resided with Ms. Temby at the time of her death.
There were no funeral or medical costs incurred following the accident as Ms.
Temby died at the site of the accident before receiving medical treatment.
Plaintiff indicated he was serving as a legal representative of the Estate and
has no direct or indirect financial benefit from same. Plaintiff indicated Ms.
Temby’s two children were the sole beneficiaries of the Estate. Accordingly, as
plaintiff brought this action on behalf of Ms. Temby’s children, including a minor
child, D.E.A., this court briefly inquired as to the nature of plaintiff’s relationship
with the minor as he claimed to be familiar with D.E.A. Plaintiff was unaware of
D.E.A.’s whereabouts and was unaware whether David Rivera retained custody of
D.E.A. Mr. Temby speculated that D.E.A. lived in New York with his father but
was not certain. Since the passing of Ms. Temby, Mr. Temby has had no contact
with D.E.A. Plaintiff was disconnected from D.E.A. and was completely unaware
that David Rivera had surrendered his parental rights.
At the proof hearing, plaintiff did not produce any evidence to substantiate
claims of the decedent’s loss of future earnings. This court found, however, that as
D.E.A. was Ms. Temby’s only dependent at the time of her death, D.E.A. was
entitled to damages for wrongful death. Plaintiff testified that Ms. Temby had a
troubled history with illicit substances, but she remained steadfast in her love and
commitment to D.E.A. The court found that a damage award of $50,000, $5,000
for ten years was sufficient under the law to compensate D.E.A., who is autistic
and was just nine years old at the time of the accident, for the wrongful death of
Ms. Temby and loss of guidance, advice and counsel she would have provided but
for her untimely demise.
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In light of plaintiff’s apparent lack of relationship with D.E.A., however, to
ensure that any monies recovered under the judgment were appropriately
safeguarded, this court appointed Gretchen Foley, Esq., as Guardian ad Litem to
oversee any monies collected following entry of the judgment and required the net
proceeds to be deposited with the Surrogate of Hunterdon County for the benefit of
D.E.A. pursuant to R. 4:48A.
Plaintiff’s Motion to Vacate the Final Order
Rule 4:50-1 provides that a court may relieve a party from a final judgment
upon a showing of:
(a) mistake, inadvertence, surprise, or excusable neglect;
(b) newly discovered evidence which would probably alter
the judgment or order and which by due diligence could
not have been discovered in time to move for a new trial
under R. 4:49;
(c) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an
adverse party;
(d) the judgment or order is void;
(e) the judgment or order has been satisfied, released or
discharged, or a prior judgment or order upon which it is
based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment or order should have
prospective application; or
(f) any other reason justifying relief from the operation of
the judgment or order.
The decision to vacate default judgment is left to the sound discretion of the trial
court; “all doubts, however, should be resolved in favor of the parties seeking
relief.” Mancini v. EDS ex rel. New Jersey Auto. Full Ins. Underwriting Ass’n,
132 N.J. 330, 334 (1993).
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Judicial Bias
A litigant alleging judicial misconduct has the burden of proving his claims
by clear and convincing evidence. Romero v. Gold Star Distribution, LLC, 468
N.J. Super. 274, 295 (App. Div. 2021). “[G]eneric and unsubstantiated allegation
that the motion court held impermissible bias is clearly insufficient to meet the
clear and convincing standard.” Id. The Romero court denied the movant’s
motion to vacate default judgment on grounds that the motion judgment
demonstrated prejudice against the movant where the court’s findings were
supported “by substantial credible evidence in the record.” Id.
Plaintiff has failed to satisfy his burden to establish judicial misconduct by
clear and convincing evidence. Plaintiff’s insistence that this court’s line of
inquiry as to the current care and custody of the minor child on whose behalf
plaintiff brought this action to recover damages is unavailing. The current
whereabouts and custody of D.E.A. was a relevant inquiry, particularly as D.E.A.’s
uncle, not plaintiff’s father, brought the action on D.E.A.’s behalf. This court’s
inquiry was guided by the best interests of the minor child. As plaintiff stood to
recover significant funds on behalf of D.E.A., whether plaintiff had a relationship
with D.E.A. and whether plaintiff would be an appropriate trustee of any awarded
funds was entirely relevant.
Plaintiff has not demonstrated that this court’s prior knowledge of D.E.A.’s
relationship with his natural father in any way impacted this court’s determination
of the final award of damages. Plaintiff’s failure to establish any type of
relationship or recent contact with D.E.A. after his mother’s untimely death
warranted certain safeguards to protect the damages awarded to D.E.A., which
included this court appointing Gretchen Foley, Esq. as Guardian ad Litem to
oversee any monies collected following entry of the judgment.
Plaintiff’s contention that this court improperly conducted an inquiry as to
Ms. Temby’s character by inquiring as to her unauthorized use of prescription
drugs is likewise without merit. As New Jersey applies comparative negligence as
a liability doctrine in negligence cases, Erny v. Estate of Merola, 171 N.J. 86, 97
(2002), Ms. Temby’s toxicology and failure to use a crosswalk at the time of the
accident was gleaned entirely from police reports (P-1) presented at the proof
hearing and were relevant to determine defendant’s liability and plaintiff’s
damages. While noting these factors for the record, as defendant had not come
forward with a defense of comparative negligence, this court nevertheless
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determined that plaintiff made a prima facie case of negligence and was entitled to
present proofs on damages.
But plaintiff failed to present any expert testimony or eyewitness testimony
to quantify the decedent’s pain and suffering. Plaintiff’s sole reliance on the death
certificate that indicated the decedent survived “for a few minutes” after the initial
impact, without more, was insufficient for this court to assess conscious pain and
suffering damages for a survivorship claim. It was plaintiff’s lack of proofs as to
the decedent’s consciousness and pain and suffering, if any, after the accident – not
Ms. Temby’s conduct before or at the time of her death – that ultimately precluded
plaintiff from recovering under the survivorship action.
As no other grounds under R. 4:50-1 warrant vacating this court’s final
order, plaintiff’s motion seeking to vacate is denied.
Plaintiff’s Motion for Judicial Recusal
As plaintiff’s motion to vacate the judgment was denied, plaintiff’s motion
for judicial recusal on a second proof hearing is denied as moot. Nevertheless, for
the sake of completeness, the court addresses plaintiff’s claim for judicial recusal.
Rule 1:12-2 permits litigants, on motion made to the judge before trial or
argument, “to seek that judge’s disqualification.” Rule 1:12-1 provides in relevant
part, “The judge of any court shall be disqualified on the court’s own motion and
shall not sit in any matter, if the judge… (d) has given an opinion upon a matter in
question in the action…[or] (g) when there is any other reason which might
preclude a fair and unbiased hearing and judgment, or which might reasonably lead
counsel or the parties to believe so.” The rule goes on to explain that paragraphs
(c), (d) and (e) “shall not prevent a judge from sitting because of having given an
opinion in another action in which the same matter in controversy came in question
or given an opinion on any question in controversy in the pending action in the
course of previous proceedings therein…”
The trial court hearing a motion for recusal is entrusted to exercise “sound
discretion” in deciding whether to grant the requested relief. Chandok v. Chandok,
406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009) (quoting
Panitch v. Panitch, 339 N.J. Super. 63, 66, 770 A.2d 1237 (App. Div.2001)).
It is not necessary to prove actual unfair prejudice as the “‘mere appearance
of bias may require disqualification’ so long as the belief of unfairness is
‘objectively reasonable.” Ibid. But “a judge need not ‘withdraw from a case upon
mere suggestion that he is disqualified ‘unless the alleged cause of recusal is
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known by [her] to exist or is shown to be true in fact.’” Chandok, 406 N.J. Super.
at 604 (quoting State v. Marshall, 148 N.J. 89, certif. denied, 522 U.S. 850 (1997)
(internal citation omitted)).
The Appellate Division in Panitch v. Panitch provided trial courts with the
parameters for determining whether recusal is warranted. In Panitch, plaintiffs
objected to the trial court’s use of inappropriate language during a case management
conference call, the trial court’s inaccurate and incomplete references to the record
found in a letter, and the judge’s discovery rulings. 339 N.J. Super. at 68-69. In
affirming denial of the recusal motion, the court noted that “inappropriate comments
do not, by themselves, necessarily equate to bias.” Id. at 68. “Fundamental to any
consideration of possible judicial disqualification is a showing of prejudice or
potential bias.” State v. Flowers, 109 N.J. Super. 313, 316 (App. Div. 1970).
Plaintiff takes the unreasonable position that he did not prevail on all of his
claims at the proof hearing due to judicial bias, rather than plaintiff’s own lack of
proofs. Plaintiff’s excerpts from the proof hearing, however, reaffirm that this
court’s inquiries were guided to determining what happened at the time of the
accident to determine liability and damages and who may be the appropriate
trustee of any damages awarded to the minor child. Plaintiff’s dissatisfaction with
the outcome does not warrant judicial recusal. Plaintiff’s motion for recusal is
denied.
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Preview
HNT-L-000401-22 05/24/2023 Pg 1 of 9 Trans ID: LCV20231634161 MICHAEL B. FUSCO, Esq. (#01148-2010) Levinson Axelrod, P.A. FILED 2 Lincoln Highway, P.O. Box 2905 May 24, 2023 Edison, NJ 08818 Haekyoung Suh, J.S.C. Chambers T: (732) 494-2727 F: (732) 494-2712 mfusco@njlawyers.com Attorneys for Plaintiff Estate of Tara Temby : PAUL J. TEMBY, ADMINISTRATOR, : SUPERIOR COURT OF NEW JERSEY THE ESTATE OF TARA FLORENCE : LAW DIVISION – HUNTERDON COUNTY TEMBY, : : DOCKET NO. HNT-L-401-22 Plaintiff, : : Civil Action v. : : ORDER NICHOLAS PRIVITERA, JOHN DOE 1- : 10 & ABC CORPORATIONS 1-10, : : Defendants. : : THIS MATTER having been opened to the Court by Michael B. Fusco, Esq. of the Law Firm of Levinson Axelrod, P.A., attorneys for plaintiff, and the Court having reviewed and considered the moving papers of the movant and any responses thereto, and for good cause having been shown; IT IS on this 24th day of May, 2023; ORDERED that the plaintiff’s motion is hereby GRANTED DENIED; IT IS FURTHER ORDERED that the Proof Hearing ruling of a ‘no cause’ on damages is hereby vacated; and IT IS FURTHER ORDERED that the Proof Hearing Judge is hereby recusing themselves from this matter pursuant to Rule 1:12-1(d); and IT IS FURTHER ORDERED that the Assignment Judge will reschedule the matter for a new proof hearing on damages before the Hon. ________________________________; and HNT-L-000401-22 05/24/2023 Pg 2 of 9 Trans ID: LCV20231634161 IT IS FURTHER ORDERED that a copy of this Order shall be deemed served on all attorneys of record via e-filing on the date set forth herein. Pursuant to Rule 1:5-1(a), movant shall serve a copy of this Order on all parties not served electronically, nor served personally in court this date, within seven (7) days of the date of this Order. /s/Haekyoung Suh_______ HON. HAEKYOUNG SUH, J.S.C. ☐ Opposed ☒ Unopposed Plaintiff’s motion to vacate and for recusal is denied. See attached Statement of Reasons. 2 HNT-L-000401-22 05/24/2023 Pg 3 of 9 Trans ID: LCV20231634161 Statement of Reasons Pursuant to R. 1:7-4 Paul J. Temby, Administrator, The Estate of Tara Florence Temby v. Nicholas Privitera, John Does 1-10 & ABC Corporations 1-10, HNT-L-401-22 This matter arises out of a motor vehicle accident that occurred on October 2, 2020. Tara Florence Temby, a pedestrian, was struck by a vehicle operated by Nicholas Privitera while crossing the street. Ms. Temby sustained fatal injuries and died intestate that same day. Ms. Temby’s brother, Paul J. Temby, applied for and was granted Letters of Administration ad Prosequendum by the Hunterdon County Surrogate’s Office on December 28, 2020. Ms. Temby’s adult son, Paul Temby, renounced his right of Administration ad Prosequendum, along with Ms. Temby’s sisters, Linda Chapuis and Deneace Presher. Plaintiff, the Administrator of Ms. Temby’s Estate, filed a complaint against defendant, Nicholas Privitera, seeking damages, interest, and costs. Plaintiff brought a survivorship action on behalf of the Estate of Ms. Temby “for any claims that may exist for her conscious pain and suffering,” and, a wrongful death action on behalf of Ms. Temby’s dependents and/or rightful heirs. Defendant was served on October 11, 2022, but did not timely file an answer or otherwise respond. On December 9, 2022, plaintiff filed a request for entry of default and a proof hearing on damages. At the proof hearing on April 12, 2023, the only testimonial evidence came from Paul J. Temby, who was not present at the time of Ms. Temby’s fatal accident. The court determined Mr. Temby’s testimony to be textbook hearsay as he had no direct knowledge of the circumstances of Ms. Temby’s death. He was informed of her death from Ms. Temby’s boyfriend, David Rivera, who did not testify at the proof hearing. At the conclusion of the proof hearing, this court entered its oral decision, which was amended and supplemented by a written decision on April 25, 2023, summarized in greater detail below. While noting there were several factors present that would weigh in favor of a finding of comparative negligence, including Ms. Temby’s toxicology at the time of death and her failure to use a crosswalk, the court determined that as defendant was not present to rebut plaintiff’s proofs, plaintiff successfully proved a prima facie case of negligence. Finding that defendant caused the accident, the only remaining issue to determine was what, if any, damages were to be assessed. 3 HNT-L-000401-22 05/24/2023 Pg 4 of 9 Trans ID: LCV20231634161 The court determined that plaintiff had failed to present any credible evidence that Ms. Temby was conscious after the collision. Plaintiff relied solely on one document—the Certificate of Death—which indicated the time between onset and death was a “few minutes.” Without eyewitness or expert testimony that decedent was conscious, even for one second, the court found plaintiff had not met its burden to prove conscious pain and suffering. At the close of the hearing, the plaintiff asked whether he could supplement the record to call a medical examiner as a witness to testify about decedent’s pain and suffering. The court (twice) invited plaintiff to present expert testimony about how long plaintiff believed decedent was conscious before she died. Instead of supplementing the record with necessary proofs, on April 18, 2023 – before the court entered its final written decision – plaintiff moved to vacate the proof hearing ruling concerning damages and for judicial recusal due to improper bias. Plaintiff contends this court’s line of questioning as to who has current care and custody of D.E.A. explicitly implied this court’s personal knowledge of D.E.A.’s case and that he had been removed from his father’s custody after Ms. Temby’s passing. Plaintiff further avers this court conducted an improper inquiry as to Ms. Temby’s history of substance use and toxicology at the time of her death. Plaintiff contends that evidence of a person’s character or a trait thereof is inadmissible when it is not a clear or defense and was not relevant to plaintiff’s claims.1 Survivorship Action No testimony was offered by a medical expert, emergency medical technician, police officer, medical examiner or any eyewitness to the accident. Plaintiff produced a copy of Ms. Temby’s final autopsy report prepared by Dr. Steven M. Diamond of the Hunterdon County Medical Examiner’s office, which listed Ms. Temby’s cause of death as “Exsanguination.” The death certificate noted Ms. Temby was pronounced dead at approximately 7:37 p.m. and that the interval between onset and death was a “few minutes.” There was no indication in any document or testimony that Ms. Temby was conscious for any of those few minutes. Mr. Temby testified he did not know if Ms. Temby was alive or conscious at the time of impact. 1 Plaintiff further contended this court erred in determining that plaintiff had not presented sufficient proofs on his wrongful death claims. This argument, however, is rendered moot in light of the court’s supplemental written decision, which awarded Ms. Temby’s minor son, D.E.A. damages of $50,000 for losses suffered as a result of Ms. Temby’s untimely death. 4 HNT-L-000401-22 05/24/2023 Pg 5 of 9 Trans ID: LCV20231634161 This court inquired as to whether plaintiff had any evidence – such as witness or expert testimony – as to how long Ms. Temby was conscious after the initial impact and her final death. Plaintiff relied entirely on the death certificate noting Ms. Temby survived for “a few minutes.” Plaintiff was unable to explain exactly how long she survived or whether she was conscious at any point after the collision with defendant’s car. In the absence of any evidence that Ms. Temby was conscious after the impact and before her death on site, the court dismissed plaintiff’s survival claim for Ms. Temby’s conscious pain and suffering. Wrongful Death At her time of death, Ms. Temby was 46 years old and unemployed. She was single and had two children—an eighteen-year-old son, Paul Temby (“Paul”) who did not reside with her, and a minor child, D.E.A. Only D.E.A. and D.E.A.’s natural father, David Rivera, resided with Ms. Temby at the time of her death. There were no funeral or medical costs incurred following the accident as Ms. Temby died at the site of the accident before receiving medical treatment. Plaintiff indicated he was serving as a legal representative of the Estate and has no direct or indirect financial benefit from same. Plaintiff indicated Ms. Temby’s two children were the sole beneficiaries of the Estate. Accordingly, as plaintiff brought this action on behalf of Ms. Temby’s children, including a minor child, D.E.A., this court briefly inquired as to the nature of plaintiff’s relationship with the minor as he claimed to be familiar with D.E.A. Plaintiff was unaware of D.E.A.’s whereabouts and was unaware whether David Rivera retained custody of D.E.A. Mr. Temby speculated that D.E.A. lived in New York with his father but was not certain. Since the passing of Ms. Temby, Mr. Temby has had no contact with D.E.A. Plaintiff was disconnected from D.E.A. and was completely unaware that David Rivera had surrendered his parental rights. At the proof hearing, plaintiff did not produce any evidence to substantiate claims of the decedent’s loss of future earnings. This court found, however, that as D.E.A. was Ms. Temby’s only dependent at the time of her death, D.E.A. was entitled to damages for wrongful death. Plaintiff testified that Ms. Temby had a troubled history with illicit substances, but she remained steadfast in her love and commitment to D.E.A. The court found that a damage award of $50,000, $5,000 for ten years was sufficient under the law to compensate D.E.A., who is autistic and was just nine years old at the time of the accident, for the wrongful death of Ms. Temby and loss of guidance, advice and counsel she would have provided but for her untimely demise. 5 HNT-L-000401-22 05/24/2023 Pg 6 of 9 Trans ID: LCV20231634161 In light of plaintiff’s apparent lack of relationship with D.E.A., however, to ensure that any monies recovered under the judgment were appropriately safeguarded, this court appointed Gretchen Foley, Esq., as Guardian ad Litem to oversee any monies collected following entry of the judgment and required the net proceeds to be deposited with the Surrogate of Hunterdon County for the benefit of D.E.A. pursuant to R. 4:48A. Plaintiff’s Motion to Vacate the Final Order Rule 4:50-1 provides that a court may relieve a party from a final judgment upon a showing of: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order. The decision to vacate default judgment is left to the sound discretion of the trial court; “all doubts, however, should be resolved in favor of the parties seeking relief.” Mancini v. EDS ex rel. New Jersey Auto. Full Ins. Underwriting Ass’n, 132 N.J. 330, 334 (1993). 6 HNT-L-000401-22 05/24/2023 Pg 7 of 9 Trans ID: LCV20231634161 Judicial Bias A litigant alleging judicial misconduct has the burden of proving his claims by clear and convincing evidence. Romero v. Gold Star Distribution, LLC, 468 N.J. Super. 274, 295 (App. Div. 2021). “[G]eneric and unsubstantiated allegation that the motion court held impermissible bias is clearly insufficient to meet the clear and convincing standard.” Id. The Romero court denied the movant’s motion to vacate default judgment on grounds that the motion judgment demonstrated prejudice against the movant where the court’s findings were supported “by substantial credible evidence in the record.” Id. Plaintiff has failed to satisfy his burden to establish judicial misconduct by clear and convincing evidence. Plaintiff’s insistence that this court’s line of inquiry as to the current care and custody of the minor child on whose behalf plaintiff brought this action to recover damages is unavailing. The current whereabouts and custody of D.E.A. was a relevant inquiry, particularly as D.E.A.’s uncle, not plaintiff’s father, brought the action on D.E.A.’s behalf. This court’s inquiry was guided by the best interests of the minor child. As plaintiff stood to recover significant funds on behalf of D.E.A., whether plaintiff had a relationship with D.E.A. and whether plaintiff would be an appropriate trustee of any awarded funds was entirely relevant. Plaintiff has not demonstrated that this court’s prior knowledge of D.E.A.’s relationship with his natural father in any way impacted this court’s determination of the final award of damages. Plaintiff’s failure to establish any type of relationship or recent contact with D.E.A. after his mother’s untimely death warranted certain safeguards to protect the damages awarded to D.E.A., which included this court appointing Gretchen Foley, Esq. as Guardian ad Litem to oversee any monies collected following entry of the judgment. Plaintiff’s contention that this court improperly conducted an inquiry as to Ms. Temby’s character by inquiring as to her unauthorized use of prescription drugs is likewise without merit. As New Jersey applies comparative negligence as a liability doctrine in negligence cases, Erny v. Estate of Merola, 171 N.J. 86, 97 (2002), Ms. Temby’s toxicology and failure to use a crosswalk at the time of the accident was gleaned entirely from police reports (P-1) presented at the proof hearing and were relevant to determine defendant’s liability and plaintiff’s damages. While noting these factors for the record, as defendant had not come forward with a defense of comparative negligence, this court nevertheless 7 HNT-L-000401-22 05/24/2023 Pg 8 of 9 Trans ID: LCV20231634161 determined that plaintiff made a prima facie case of negligence and was entitled to present proofs on damages. But plaintiff failed to present any expert testimony or eyewitness testimony to quantify the decedent’s pain and suffering. Plaintiff’s sole reliance on the death certificate that indicated the decedent survived “for a few minutes” after the initial impact, without more, was insufficient for this court to assess conscious pain and suffering damages for a survivorship claim. It was plaintiff’s lack of proofs as to the decedent’s consciousness and pain and suffering, if any, after the accident – not Ms. Temby’s conduct before or at the time of her death – that ultimately precluded plaintiff from recovering under the survivorship action. As no other grounds under R. 4:50-1 warrant vacating this court’s final order, plaintiff’s motion seeking to vacate is denied. Plaintiff’s Motion for Judicial Recusal As plaintiff’s motion to vacate the judgment was denied, plaintiff’s motion for judicial recusal on a second proof hearing is denied as moot. Nevertheless, for the sake of completeness, the court addresses plaintiff’s claim for judicial recusal. Rule 1:12-2 permits litigants, on motion made to the judge before trial or argument, “to seek that judge’s disqualification.” Rule 1:12-1 provides in relevant part, “The judge of any court shall be disqualified on the court’s own motion and shall not sit in any matter, if the judge… (d) has given an opinion upon a matter in question in the action…[or] (g) when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.” The rule goes on to explain that paragraphs (c), (d) and (e) “shall not prevent a judge from sitting because of having given an opinion in another action in which the same matter in controversy came in question or given an opinion on any question in controversy in the pending action in the course of previous proceedings therein…” The trial court hearing a motion for recusal is entrusted to exercise “sound discretion” in deciding whether to grant the requested relief. Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009) (quoting Panitch v. Panitch, 339 N.J. Super. 63, 66, 770 A.2d 1237 (App. Div.2001)). It is not necessary to prove actual unfair prejudice as the “‘mere appearance of bias may require disqualification’ so long as the belief of unfairness is ‘objectively reasonable.” Ibid. But “a judge need not ‘withdraw from a case upon mere suggestion that he is disqualified ‘unless the alleged cause of recusal is 8 HNT-L-000401-22 05/24/2023 Pg 9 of 9 Trans ID: LCV20231634161 known by [her] to exist or is shown to be true in fact.’” Chandok, 406 N.J. Super. at 604 (quoting State v. Marshall, 148 N.J. 89, certif. denied, 522 U.S. 850 (1997) (internal citation omitted)). The Appellate Division in Panitch v. Panitch provided trial courts with the parameters for determining whether recusal is warranted. In Panitch, plaintiffs objected to the trial court’s use of inappropriate language during a case management conference call, the trial court’s inaccurate and incomplete references to the record found in a letter, and the judge’s discovery rulings. 339 N.J. Super. at 68-69. In affirming denial of the recusal motion, the court noted that “inappropriate comments do not, by themselves, necessarily equate to bias.” Id. at 68. “Fundamental to any consideration of possible judicial disqualification is a showing of prejudice or potential bias.” State v. Flowers, 109 N.J. Super. 313, 316 (App. Div. 1970). Plaintiff takes the unreasonable position that he did not prevail on all of his claims at the proof hearing due to judicial bias, rather than plaintiff’s own lack of proofs. Plaintiff’s excerpts from the proof hearing, however, reaffirm that this court’s inquiries were guided to determining what happened at the time of the accident to determine liability and damages and who may be the appropriate trustee of any damages awarded to the minor child. Plaintiff’s dissatisfaction with the outcome does not warrant judicial recusal. Plaintiff’s motion for recusal is denied. 9