Motion-Secondary: Estrella Juan Vs Union City Police Department

On April 20, 2022 a Motion-Secondary was filed involving a dispute between Juan Estrella, and Brian P Stack, Nichelle Luster, Union City, Union City Police Department, for Civil Rights in the District Court of Hudson County.

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HUD-L-000064-23 01/26/2023 4:39:05 PM Pg 1 of 9 Trans ID: LCV2023374144

David V. Calviello, Esq. (N.J. Bar No. 010141997)
Tomasz Pacholec (N.J. Bar No. 162142015)
CALCAGNI & KANEFSKY, LLP
One Newark Center
1085 Raymond Boulevard - Floor 14
Newark, New Jersey 07102
(T): (862) 397-1796
(E): tpacholec@ck-litigation.com
Attorneys for Defendants City of Union of City, Brian P. Stack, Nichelle Luster, and Union City
Police Department

Juan Estrella, SUPERIOR COURT OF NEW JERSEY
HUDSON COUNTY - LAW DIVISION
Plaintiff,
Docket No. HUD-L-00064-23
vs.
Civil Action
City of Union City, Brian P. Stack individually
and as Mayor of the City of Union City,
Nichelle Luster individual capacity and as
Chief of Police of the City of Union City,
Union City Police Department,

Defendants.

DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFF JUAN ESTRELLA’S
MOTION FOR RECONSIDERATION

CALCAGNI & KANEFSKY LLP
One Newark Center
1085 Raymond Blvd., 14th Floor
Newark, New Jersey 07102
Attorneys for Defendants

On the Brief:

David V. Calviello, Esq.
Tomasz Pacholec, Esq.

Of Counsel:

David V. Calviello, Esq.
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PRELIMINARY STATEMENT
Defendants City of Union of City (“Union City”), Mayor Brian P. Stack, Former Chief of

Police Nichelle Luster, and the Union City Police Department (the “Department”) (collectively,

“Defendants”) submit the instant opposition to Plaintiff Juan Estrella’s (“Plaintiff”) Motion for

Reconsideration of the Court’s December 21, 2022 Order and Decision granting Defendants’

Motion to Transfer Venue.

As an initial matter, Plaintiff’s instant motion should not be entertained and must be denied

because it is procedurally deficient as he fails to provide a transcript of the underlying oral decision

for which he challenges.

Further, Plaintiff’s motion should be denied because he fails to cite any matter of fact

overlooked by the Court and because he continues to fail to provide good cause as to why venue

in Hudson County is improper. Instead of arguing that the Court’s ruling was arbitrary, capricious,

or unreasonable, Plaintiff simply reiterates the same arguments made in his initial opposition to

Defendants’ Motion to Transfer Venue that trial in Hudson County would be unfair and prejudicial

given Defendant Stack’s alleged involvement in this matter. Plaintiff fails to appreciate that his

continued speculative assertions of alleged prejudice do not rise to the level needed to show good

cause to prevent the transfer, nor that the Court overlooked any fact or erred in any way making

its decision. Plaintiff simply disagrees with the Court’s decision and analysis of the factors

presented.

Plaintiff’s mere disappointment with the Court’s decision does not provide a basis for

reconsideration. All these factors were presented to the Court, and its carefully considered ruling

should not be disturbed.

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LEGAL STANDARD

A motion for reconsideration should not be made merely because a party is dissatisfied

with the court’s decision. D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Super. Ct. 1990). “[A]

litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable

manner, before the Court should engage in the actual reconsideration process.” Id. (emphasis

added). As the Appellate Division recently held:

A motion for reconsideration is not a chance to get “a second bite of
the apple.” Fusco v. Bd. of Educ. Of City of Newark, 349 N.J. Super.
455, 463, 793 A.2d 856 (App. Div. 2022). Reconsideration is
appropriate in two circumstances: (1) when the court’s decision is
“based upon a palpably incorrect or irrational basis,” or (2) when “it
is obvious that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent evidence.”
Cummings v. Bahr, 295 N.J. Super. 374, 384, 685 A.2d 60 (App.
Div. 1996) (quoting D’Atria v. D’Atria, 242 N.J. Super. 393, 401
(Ch. Div. 1990)). A motion for reconsideration is not “a vehicle to
introduce new evidence in order to cure an inadequacy in the motion
record.” Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J.
Super. 299, 310, 942 A.2d 21 (App. Div. 2008) (citing Cummings,
295 N.J. Super. At 384). Ultimately, when a litigant is dissatisfied
with a court’s decision, reconsideration is not appropriate; rather,
the litigant should pursue an appeal. D’Atria, 242 N.J. Super. At
401.

Cambria Auto. Cos. V. Trucktek, No. A-3210-19, 2021 WL 942519 (Super. Ct. App. Div. Mar.

12, 2021). 1

“Critically, reconsideration is not meant to re-litigate issues already decided or otherwise

award a proverbial second bite at the apple’ to a dissatisfied litigant.” Rosenblum v. Borough of

Closter, No. A-1765-19, 2021 WL 608257 (Super. Ct. App. Div. Feb. 17, 2021) (internal citations

and quotations omitted). “A motion for ‘[r]econsideration cannot be used to expand the record

1
Pursuant to R. 1:36-3, true and accurate copies of all unpublished decisions cited herein are
attached as Exhibit A to the Certification of Tomasz Pacholec, Esq. (“Pacholec Cert.”), in the order
in which they appear.
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and reargue a motion.’” Id. (citing Cap. Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super.

299, 310, 942 A.2d 21 (App. Div. 2008)). “Rather, reconsideration is only to point out the matters

or controlling decisions which counsel believes the court has overlooked or as to which it has

erred.” Id. (internal citations and quotations omitted).

None of the arguments advanced by Plaintiff warrant reconsideration or a reversal of the

Court’s decision to transfer venue to Hudson County.

I. Plaintiff’s Motion for Reconsideration is Procedurally Improper

As an initial matter, Plaintiff’s Motion for Reconsideration is procedurally improper and

should not be considered by the Court. Plaintiff wishes to reconsider the Order and Decision made

by Judge Mongiardo on December 21, 2022, transferring venue to Hudson County. In support of

same, Plaintiff’s counsel provides a Certification stating “Exhibit 1 is a true copy of the order of

December 21, 2023 [sic], signed by Hon. Bruno Mongiardo, J.S.C.” See Certification of Counsels

In Support of Plaintiff’s Motion For Reconsideration of the Order of December 21, 2022 and

Decision, at ¶ 3 (“Estrella/Espinosa Cert.”). However, despite attaching the two-page copy of

Judge Mongiardo’s December 21, 2022 Order, noticeably absent from counsels’ certification is

the transcript of the Court’s oral opinion for which it based its original decision on, the decision

which is the very subject of Plaintiff’s Motion for Reconsideration. See Estrella/Espinosa Cert.,

Exhibit 1 (“See Opinion of the Court read into the record 12/21/22”). Plaintiff makes various

references to the Court’s oral opinion and the oral argument held but fails to provide the underlying

transcript of same. See e.g. Plaintiff’s Memorandum of Law In Support of His Motion to

Reconsider the Order and Decision of Judge Mongiardo, at page 19/32. Failure to include a record

of the Court’s December 21, 2022, oral decision renders his instant motion unacceptably deficient

and subject to denial.

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As such, Plaintiff’s Motion for Reconsideration should be summarily dismissed and should

not be considered by the Court given counsel’s failure to provide a full copy of the Court’s

December 21, 2022 Order, and a transcript of its oral decision he wishes to be reconsidered.

II. Plaintiff’s Motion for Reconsideration Is An Impermissible “Second Bite at the
Apple.”

Plaintiff’s contention that he will be allegedly prejudiced is nothing more than a

restatement of the identical arguments that he submitted to the Court in his approximately 36-page

letter opposition to Defendants’ Motion to Transfer. So much so that Plaintiff appears to simply

have copy and pasted paragraphs 1 through 5 of its preliminary statement from his previous

submission. 2 Compare Plaintiff’s Memorandum of Law In Support of His Motion to Reconsider

the Order and Decision of Judge Mongiardo, at page 13/32 with Plaintiff’s Letter Brief in

Opposition to Defendants’ Motion to Transfer, at page 2/36, attached as Exhibit B to the Pacholec

Cert.

As set forth above, the purpose of a motion for reconsideration is not to allow parties to

restate arguments that the court has already considered. Hasan v. Ahmed, 2011 WL 2935402 (App.

Div. 2011) (finding reconsideration was not warranted where defendant’s motion merely restated

his initial argument). Rather, a pure difference of opinion with the court’s decision should be dealt

with through the normal appellate process. Id.; see also Morgano v. Ricci, 2010 WL 3882626

(D.N.J. 2010) (denying motion for reconsideration on the ground that petitioner simply “disagrees

with this Court’s decision, and reiterates the same facts and legal arguments raised before in

another effort to have this Court change its mind”).

2
Despite including these contentions in his Preliminary Statement, Plaintiff fails entirely to
address and/or support these arguments in his moving papers. As such, Defendants rely on their
original arguments and caselaw set forth in their Motion to Transfer.
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As such, the court has already made its decision with respect to this issue, and it should not

be reconsidered because Plaintiff disagrees with the outcome.

III. The Court Properly Determined that Venue was Improperly Laid in Passaic
County Pursuant to R. 4:3-2(A)(2)

Despite Plaintiff’s previous baseless assertions, it appears that Plaintiff has finally

recognized that it originally improperly laid venue in Passaic County. See Plaintiff’s

Memorandum of Law In Support of His Motion to Reconsider the Order and Decision of Judge

Mongiardo, at page 13/32. However, to reiterate the sound basis for the Court’s previous decision,

Rule 4:3-2(a)(2) clearly mandates that “[v]enue shall be laid by the plaintiff in Superior Court

actions…not affecting real property which are brought by or against municipal corporations,

counties, public agencies or officials, in the county in which the cause of action arose.” (emphasis

added). “R. 4:3-2(a) does speak in mandatory terms. Whenever the word ‘shall’ appears in a

statute, it creates a presumption that what is thus commanded must be done.” Diodato v. Camden

Cnty. Park Comm’n, 136 N.J. Super. 324, 327 (App. Div. 1975).

Plaintiff brings this action related to his performance and employment with the Union City

Police Department, and the alleged actions of Defendant Stack and Defendant Luster – all related

to their official duties as employees of the City of Union City. As such, R. 4:3-2(a)(2) is applicable,

and venue must therefore be laid in Hudson County. See, e.g., Eddy v. State, 2007 WL 7549236

(N.J. Super. Ct. Law Div. Aug. 16, 2007) (finding that “venue was not properly laid under . . . R.

4:3-2 since . . . venue must be laid in Mercer County due to the status of the defendant as a

governmental entity”). The Court’s previous decision that venue was improperly laid in Passaic

County is entirely supported by the record and supporting caselaw. Moreover, Plaintiff fails to

demonstrate how the Court’s previous decision was in any way improper or failed to consider

relevant facts.

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IV. Plaintiff Failed to and Continues to Fail to Establish Good Cause to Deny the
Transfer of Venue

In his Motion for Reconsideration, Plaintiff essentially re-argues the notion that it would

be unfair for Plaintiff for the case to be tried in Hudson County because Defendant Stack has

political connections there, which would somehow lead to rampant judicial impartiality and

prejudice; albeit Plaintiff’s Motion for Reconsideration adding additional “support” for his

assertions through Wikipedia articles, Facebook posts, and local newspaper clippings. 3 However,

these assertions do not provide good cause to reconsider the Court’s previous decision to transfer

venue, nor do they show how the Court erred in any way.

As set forth in Defendants’ original Motion to Transfer Venue submissions, the motion to

change venue was made pursuant to R. 4:3-3(a)(1) due to venue not being properly laid.

Accordingly, the “respondent has the burden of demonstrating good cause for not making the

change.” Pressler & Verniero, Current New Jersey Court Rules, cmt. to R. 4:3-3 (2020) (emphasis

added) (citing Diodato, 136 N.J. Super. 324) (emphasis added). “A motion for a change of venue

on the ground that venue was not laid in accordance with R. 4:3-2 should be routinely granted

unless the party resisting change makes a showing that a fair and impartial trial could not be had

in the proper county or that ‘the convenience of the parties and witnesses in the interest of justice’

justifies trial in a county other than one where venue should have been laid.” Id. Plaintiff failed

to provide this good cause in his original opposition to Defendants’ Motion to Transfer Venue,

and simply reiterates the same arguments here in an attempt at a second bite at the apple.

3
It should be noted that Wikipedia and the articles included therein are subject to editing and
modification by anyone at any time without registration or credentialing. See
https://en.wikipedia.org/wiki/Help:Editing (“Wikipedia is a wiki, meaning anyone can edit nearly
any page…You do not need to register to do this…”).
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Plaintiff again attempts to paint some elicit portrait of an alleged underbelly of Hudson

County, its residents, and its judiciary that somehow stack the deck against him. However,

Plaintiff’s entirely speculative and fanciful assertions of prejudice must fail. When venue is

challenged pursuant to R. 4:3-3(a)(2) – i.e., substantial doubt that a fair and impartial trial can be

had - the one making the challenge “bears the burden of demonstrating good cause” through “clear

and convincing evidence that a fair and impartial trial cannot be had in a venue.” Davison,

Eastman & Munoz, P.A. v. Clancy, 2021 WL 6121967, at *3 (N.J. Super. App. Div. Dec. 28, 2021).

Plaintiff’s continued claims that Defendants have “political connections,” and that Defendant

Stack is a “powerful politician,” is a far cry from clear and convincing evidence demonstrating

good cause. See, e.g., S.H. v. W.H., 2019 WL 2172792, at *5 (N.J. Super. App. Div. May 20,

2019) (dismissing argument that venue change was needed due to claims of defendant’s

“substantial political connections and influence”); see also Heffernan v. Stonehill, 2020 WL

5033375, at *4 (N.J. Super. App. Div. Aug. 26, 2020) (denying motion to transfer because the

“allegations of misconduct,” including that the judge and Borough attorney had ex parte

communications, “are bald claims lacking in detail or support by objective evidence to meet the

burden of demonstrating by clear and convincing evidence that [plaintiff’s] case would not receive

a fair and impartial hearing”); Diodato, 136 N.J. at 327-28 (refusing to consider plaintiff’s

argument that he “would be unable to obtain a fair trial in Camden County” because the “action

seeks recovery of damages from governmental agencies of that county” and reversing denial of

motion to transfer venue to Camden County because Camden County was a named defendant);

accord Sydlar v. Sydlar, 2006 WL 552500, at *1 (N.J. Super. App. Div. Mar. 8, 2006). Moreover,

Plaintiff’s continued farfetched argument that judges and a jury would not be impartial to Plaintiff

because of Defendant Stack’s alleged involvement is entirely speculative, unsupported, and could

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create a dangerous precedent were it to be entertained and ultimately adopted by the Court. To

permit Plaintiff to succeed on these speculative arguments would encourage plaintiffs to name and

include anyone they construe to be a “powerful politician,” or who play a role in the County, to

prevent venue being laid in that County. Such a decision would be inapposite to the clearly set

forth procedures in Rule 4:3-2(a)(2).

CONCLUSION

Accordingly, it is respectfully requested that Plaintiff’s Motion for Reconsideration be

denied.

Respectfully submitted,

By: /s/ Tomasz Pacholec
David V. Calviello, Esq.
Tomasz Pacholec, Esq.

Calcagni & Kanefsky, LLP
One Newark Center
1085 Raymond Boulevard, 14th Floor
Newark, New Jersey 07102
Counsel for Defendants

Dated: January 26, 2023

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Juan Estrella, SUPERIOR COURT OF NEW JERSEY
HUDSON COUNTY - LAW DIVISION
Plaintiff,
Docket No. HUD-L-00064-23
vs.

City of Union City, Brian P. Stack individually CERTIFICATION OF TOMASZ
and as Mayor of the City of Union City, PACHOLEC, ESQ.
Nichelle Luster individual capacity and as
Chief of Police of the City of Union City,
Union City Police Department,

Defendants.

I, TOMASZ PACHOLEC, of full age, hereby certify as follows:

1. I am an attorney duly admitted to practice law in the State of New Jersey and am

an Associate at Calcagni & Kanefsky LLP, attorneys for City of Union of City, Brian P. Stack,

Nichelle Luster, and Union City Police Department (collectively, the “Defendants”) in this matter.

2. I respectfully submit this Certification in opposition of Plaintiff’s Motion for

Reconsideration.

3. Pursuant to R. 1:36-3, and for the purpose of serving counsel for Plaintiff and the

Court with copies of unpublished opinions cited in Defendants’ brief, true and accurate copies of

the following unpublished opinions are attached collectively as Exhibit A in the order that they

are cited in Defendants’ brief:

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• Cambria Auto. Cos. V. Trucktek, 2021 WL 942519 (Super. Ct. App. Div. Mar. 12,

2021);

• Rosenblum v. Borough of Closter, 2021 WL 608257 (Super. Ct. App. Div. Feb. 17,

2021);

• Hasan v. Ahmed, 2011 WL 2935402 (App. Div. 2011);

• Morgano v. Ricci, 2010 WL 3882626 (D.N.J. 2010);

• Eddy v. State, 2007 WL 7549236 (N.J. Super. Ct. Law Div. Aug. 16, 2007);

• Davison, Eastman & Munoz, P.A. v. Clancy, 2021 WL 6121967 (N.J. Super. App.

Div. Dec. 28, 2021);

• S.H. v. W.H., 2019 WL 2172792(N.J. Super. App. Div. May 20, 2019);

• Heffernan v. Stonehill, 2020 WL 5033375 (N.J. Super. App. Div. Aug. 26, 2020);

• Sydlar v. Sydlar, 2006 WL 552500 (N.J. Super. App. Div. Mar. 8, 2006).

4. A true and correct copy of Plaintiff’s Letter Brief in Opposition to Defendants’

Motion to Transfer is attached as Exhibit B.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

By: __Tomasz Pacholec___________
Tomasz Pacholec

Dated: January 26, 2023

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EXHIBIT A
HUD-L-000064-23 01/26/2023 4:39:05 PM Pg 4 of 75 Trans ID: LCV2023374144
Cambria Automobile Companies, Inc. v. Trucktek, LLC, Not Reported in Atl. Rptr. (2021)

On January 9, 2019, a default judgment was entered against
2021 WL 942519 defendant in the sum of $90,732.65.
Only the Westlaw citation is currently available.
Defendant promptly moved to vacate the default judgment
UNPUBLISHED OPINION. CHECK and reinstate its answer. In support of the vacatur motion,
COURT RULES BEFORE CITING. counsel for defendant submitted a certification stating, in part,
“[t]here is no [c]ounterclaim in this matter” and “[t]his office
Superior Court of New Jersey, Appellate Division. does not want any [c]ounterclaim.” Defendant's counsel also
certified, “there was no true deficiency because I never
CAMBRIA AUTOMOBILE intended to file a [c]ounterclaim.” On February 15, 2019,
COMPANIES, INC., Plaintiff-Respondent, the trial court vacated the default judgment and declared in
its order that defendant's answer “is hereby reinstated with
v.
no [c]ounterclaim,” adding the complaint “was filed only on
TRUCKTEK, LLC, a New Jersey Limited [November 26, 2018]. A defense is alleged.”
Liability Company, Defendant-Appellant.
In March 2019, plaintiff moved for summary judgment,
DOCKET NO. A-3210-19 contending there was no dispute as to the amount defendant
| owed plaintiff. In response, defendant filed a “notice of
Submitted January 21, 2021 motion to add counterclaim and denying summary judgment.”
| On April 29, 2019, the trial court granted plaintiff's summary
Decided March 12, 2021 judgment motion and awarded it $90,732.65. The judgment
stated, “this order disposes of all issues between all parties
On appeal from the Superior Court of New Jersey, Law in this lawsuit.” The case was then marked “closed” on the
Division, Union County, Docket No. L-4003-18. court's docket.

Attorneys and Law Firms
Defendant moved for reconsideration of the summary
Antonio J. Toto, attorney for appellant. judgment award and sought leave to file a counterclaim out
of time. By order of July 18, 2019, the trial court denied
Turner Law Firm, LLC, attorneys for respondent (Andrew R. defendant's reconsideration motion, but granted defendant
Turner, on the brief). leave to file a counterclaim. The order stated:

Before Judges Ostrer and Enright. The summary judgment granted to plaintiff remains.
Motion to reconsider denied as there is nothing new on
Opinion that or mistake. However, Defendant may within 30 days
file a counterclaim. This is in the interest of the entire
PER CURIAM
controversy doctrine. If no counterclaim is filed within
*1 Defendant Trucktek, LLC (Trucktek) appeals from a 30 days, defendant shall be barred with prejudice from
February 28, 2020 order, which granted a turnover of funds asserting one.
to plaintiff Cambria Automotive Companies, Inc., and denied
defendant's request to schedule a trial date on its counterclaim. On July 31, 2019, plaintiff filed a motion for turnover of funds
Defendant also appeals from a March 30, 2020 denial of its to partially satisfy its judgment. Approximately one week
motion to reconsider the February 28, 2020 order. We affirm. later, defendant filed a “notice of motion opposing turnover
of funds.” Defendant's counsel represented his “office filed a
On November 21, 2018, plaintiff filed a complaint seeking [c]ounterclaim as part of its motion dated April 17, 2019 and
an award of $90,732.65 against defendant for goods plaintiff this office believed that the [c]ounterclaim was filed as part of
sold and delivered to defendant. Defendant filed an answer its [m]otion to add the [c]ounterclaim which was granted on
referencing a counterclaim and affirmative defenses. The July 18, 2019.” Defendant's motion did not include any proof
clerk's office issued a deficiency notice to defendant, based on a counterclaim was filed and served. On August 22, 2019,
defendant's failure to include a counterclaim with its answer. the motion judge granted the turnover motion, finding “[a]
late filed counterclaim should not interfere with the judgment

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Cambria Automobile Companies, Inc. v. Trucktek, LLC, Not Reported in Atl. Rptr. (2021)

already laboriously obtained by the plaintiff.” This turnover (Emphasis added). Moreover, defendant does not establish
order was not appealed. it provided the motion judge with proof it served plaintiff
with the counterclaim before the motion judge entered the
*2 On January 14, 2020, plaintiff filed another turnover challenged orders.
motion. In response, on January 23, 2020, defendant filed
a “motion opposing turnover and requesting a trial date for Rule 1:5-1 provides “[i]n all civil actions, unless otherwise
the [c]ounterclaim.” In support of defendant's opposition provided by rule or court order, orders, judgments, pleadings
motion, its counsel certified he contacted the Civil Division subsequent to the original complaint, written motions ... and
Manager's Office to inquire why no trial date issued on other papers ... shall be served upon all attorneys of record
defendant's counterclaim, and he was informed the matter in the action and upon parties appearing pro se.” Also, Rule
was “disposed.” Accordingly, he asked that the counterclaim 1:5-2 mandates, in part:
be considered and that plaintiff's turnover motion abide “the
outcome of the [c]ounterclaim.” [s]ervice upon an attorney of papers referred to in R. 1:5-1
shall be made by mailing a copy to the attorney at his or
The motion judge conducted oral argument on February 28, her office by ordinary mail, by handing it to the attorney,
2020. At the hearing, defendant's attorney did not contest or by leaving it at the office with a person in the attorney's
the amount of money plaintiff claimed it was owed, but employ, or if the office is closed ..., in the same manner as
stated, “I'd rather [plaintiff] not get the money pending the service is made upon a party.
outcome of the counterclaim.” Plaintiff's counsel represented
he was never served with the counterclaim, did not believe Additionally, “the language of Rule 1:5-3 is clear and
one was filed, and that the “[c]ourt's records say [the matter unambiguous.” First Resolution Inv. Corp. v. Seker, 171 N.J.
is] ‘disposed.’ ” 502, 511 (2002). It provides:

Proof of service of every paper referred to in R. 1:5-1 may
Our review of the record reveals defendant's attorney
be made (1) by an acknowledgment of service, signed by
produced no proof at the hearing that the counterclaim
the attorney for a party or signed and acknowledged by the
was filed or served. Instead, when the motion judge
party, or (2) by an affidavit of the person making service,
asked him if he had a filed copy of the counterclaim,
or (3) by a certification of service appended to the paper
defendant's counsel responded, “It's on eCourts itself, Your
to be filed and signed by the attorney for the party making
Honor.” The judge replied, “I don't have a filed copy.”
service.
Accordingly, following oral argument, the judge entered an
order granting plaintiff's motion for the turnover of funds *3 [R. 1:5-3.]
totaling $36,768.97. That same day, the judge entered a
separate order denying defendant's cross-motion, as he found The record before us is devoid of evidence defendant
the “counterclaim has not been properly filed.” Defendant complied with the Rules we have cited. Further, the mere
moved for reconsideration of the order denying relief on its existence of an eCourts receipt in defendant's appellate
counterclaim; the court denied the reconsideration motion on submissions does not persuade us the motion judge erred
March 30, 2020. in finding defendant's counterclaim was not properly filed.
Accordingly, we perceive no basis to disturb the February 28,
On appeal, defendant's sole argument is that it “properly e- 2020 order.
filed and served the counterclaim on eCourts and the trial
court erred in dismissing it.” We are not persuaded. We also are not persuaded the trial court abused its discretion
in denying defendant's motion for reconsideration of the
As a threshold matter, we observe that neither of the orders February 28, 2020 order. A motion for reconsideration is not
from which defendant appeals actually states defendant's a chance to get “a second bite of the apple.” Fusco v. Bd. of
counterclaim was dismissed. Further, although defendant Educ. of City of Newark, 349 N.J. Super. 455, 463 (App. Div.
annexes an eCourts receipt to its appendix to reflect the 2002). Reconsideration is appropriate in two circumstances:
filing of an “answer to counterclaim” on August 8, 2019, it (1) when the court's decision is “based upon a palpably
does not argue this receipt was part of the record before the incorrect or irrational basis,” or (2) when “it is obvious that
motion judge on February 28, 2020 or upon reconsideration. the [c]ourt either did not consider, or failed to appreciate the

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Cambria Automobile Companies, Inc. v. Trucktek, LLC, Not Reported in Atl. Rptr. (2021)

Here, there is no showing the motion judge's February
significance of probative, competent evidence.” Cummings
28, 2020 order rested on “palpably incorrect or irrational”
v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting
grounds or “that the [c]ourt either did not consider or
D'Atria v. D'Atria, 242 N.J. Super. 393, 401 (Ch. Div. 1990)).
failed to appreciate the significance of probative, competent
A motion for reconsideration is not “a vehicle to introduce
evidence.” Ibid. Therefore, we perceive no basis to second
new evidence in order to cure an inadequacy in the motion
guess the judge's March 30, 2020 denial of defendant's
record.” Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J.
reconsideration motion.
Super. 299, 310 (App. Div. 2008) (citing Cummings, 295 N.J.
Super. at 384). Ultimately, when a litigant is dissatisfied with
Affirmed.
a court's decision, reconsideration is not appropriate; rather,
the litigant should pursue an appeal. D'Atria, 242 N.J. Super.
at 401. All Citations

Not Reported in Atl. Rptr., 2021 WL 942519

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 3
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Davison, Eastman & Munoz, P.A. v. Clancy, Not Reported in Atl. Rptr. (2021)
2021 WL 6121967

in part and reverse and remand in part for further proceedings
2021 WL 6121967 consistent with this opinion.
Only the Westlaw citation is currently available.
Defendants retained plaintiff to defend a foreclosure action
UNPUBLISHED OPINION. CHECK and reinstate and modify their mortgage with the bank holding
COURT RULES BEFORE CITING. the note on their home. Defendants entered a repayment
plan with the bank, plaintiff's representation concluded, and
Superior Court of New Jersey, Appellate Division. thereafter defendants defaulted on the note.

DAVISON, EASTMAN & MUNOZ, P.A., In March 2016, plaintiff filed a complaint against
Plaintiff-Respondent/Cross-Appellant, defendants for nonpayment of legal fees incurred in
the foreclosure representation. Defendants counterclaimed
v.
for legal malpractice, alleging plaintiff failed to pursue
Donna H. CLANCY and Dermott Clancy, counterclaims for fraud and breach of contract against their
Defendants-Appellants/Cross-Respondents. bank.

DOCKET NO. A-1114-19 In August 2018, plaintiff filed a motion for partial summary
| judgment on grounds defendants’ legal malpractice expert
Argued December 16, 2021 report was a net opinion. Two months later defendants moved
| to transfer venue, alleging they could not receive a fair trial in
Decided December 28, 2021 Monmouth Vicinage. They claimed that one of the attorneys
representing plaintiff boasted he could influence the outcome
On appeal from the Superior Court of New Jersey, Law of the case, as he was married to a judge in the vicinage.
Division, Monmouth County, Docket No. L-0834-16. Defendants also asserted a judge who conducted a settlement
conference revealed their “bottom line” settlement number to
Attorneys and Law Firms
plaintiff.
Vincent P. Manning argued the cause for appellants/cross-
respondents (Manning, Caliendo & Thomson, PA, attorneys; The Assignment Judge issued a detailed written decision
Vincent P. Manning, on the briefs). denying the venue transfer motion. She found “defendants
failed to establish ‘substantial doubt’ or any doubt that they
Meredith Kaplan Stoma argued the cause for respondent/ will not receive a fair and impartial trial or hearing.” She
cross-appellant (Lewis Brisbois Bisgaard & Smith, LLP, noted defendants knew about the attorney's relationship to a
attorneys; Meredith Kaplan Stoma, of counsel; Jeffrey S. vicinage judge and his alleged influence but did not seek a
Leonard, on the briefs). new venue “because decisions of various judges went in their
favor[.]”
Before Judges Haas and Mawla.
The judge found no merit to support defendants’ claim that
Opinion
their settlement position was communicated to plaintiff. She
PER CURIAM also stated, “based on this allegation alone, no harm would
result in transferring the pending motion to another judge, and
*1 Defendants Donna and Dermott Clancy appeal from: if a trial is necessary, it will not be assigned to [the settlement
a January 25, 2019 order denying their motion to transfer conference judge].” The judge concluded “there is absolutely
venue; a September 13, 2019 order denying their motion no reason why the entire Monmouth County judiciary should
to reopen discovery; and an October 2, 2019 order and be recused from this case[,]” and entered the January 25, 2019
consent judgment granting plaintiff Davison, Eastman & order.
Munoz, P.A.’s motion in limine dismissing defendants’ legal
malpractice counterclaim and entering judgment in plaintiff's On May 24, 2019, a different judge denied plaintiff's motion
favor. Plaintiff cross-appeals from a May 24, 2019 order for summary judgment without prejudice, finding defendants’
denying its motion for partial summary judgment. We affirm expert “supplied sufficient detail and specific reference to

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1
HUD-L-000064-23 01/26/2023 4:39:05 PM Pg 8 of 75 Trans ID: LCV2023374144
Davison, Eastman & Munoz, P.A. v. Clancy, Not Reported in Atl. Rptr. (2021)
2021 WL 6121967

authority” and was not a net opinion. The trial date was set
for September 23, 2019. III. THE COURT ERRED IN GRANTING PLAINTIFF'S
MOTION IN LIMINE TO BAR EVIDENCE OF FRAUD
On August 7, 2019, defendants’ expert withdrew from the BY WELLS FARGO.
case, citing his age and “the stress of court work” on his
IV. THE COURT ERRED IN DISMISSING
health. Plaintiff consented to defendants’ request to reopen
DEFENDANT[S’] COUNTERCLAIM WITH
discovery to allow defendants to obtain another expert. On
PREJUDICE.
August 28, defendants filed a motion to reopen discovery,
setting forth the reasons for the expert's withdrawal, and
On the cross-appeal, plaintiff argues as follows:
requesting sixty days to obtain a new expert report. On
September 23, 2019, the same judge who heard the summary V. THE TRIAL COURT ERRED IN NOT GRANTING
judgment motion denied the motion and wrote on the order PLAINTIFF'S MOTION FOR PARTIAL SUMMARY
there were “no grounds stated to extend on this 2016 [d]ocket JUDGMENT.
[n]umber.”

*2 Plaintiff filed a motion in limine to dismiss defendants’
I.
counterclaim for lack of an expert report. The motion was
heard on September 23, 2019, by the trial judge. The trial We review a trial court's decision determining whether to
judge cited our decision in Cho v. Trinitas Regional Medical extend a period of discovery for abuse of discretion. Leitner
Center., 443 N.J. Super. 461, 470 (App. Div. 2015), which v. Toms River Reg'l Schs., 392 N.J. Super. 80, 87 (App.
held motions in limine should not be utilized to extinguish Div. 2007). Rule 4:24-1(c) permits an extension of discovery
an adversary's case. Notwithstanding the holding in Cho, the after the discovery period has closed upon a showing of
judge concluded he was bound by the order denying the exceptional circumstances. Exceptional circumstances are
request to reopen discovery and found defendants could not satisfied when the movant can show:
support their legal malpractice claim without an expert. The
judge cited the age of the case and concluded he had no (1) why discovery has not been completed within time
choice but to grant the motion “based on the failure to have and counsel's diligence in pursuing discovery during that
an expert.” time; (2) the additional discovery or disclosure sought
is essential; (3) an explanation for counsel's failure to
The parties subsequently entered a consent judgment on request an extension of the time for discovery within the
October 2, 2019, awarding plaintiff $35,000, and dismissing original time period; and (4) the circumstances presented
the remainder of the action, including defendants’ legal were clearly beyond the control of the attorney and litigant
malpractice counterclaim, with prejudice. The parties agreed seeking the extension of time.
to stay the judgment pending appeal and agreed if the matter
were remanded, the judgment would be void ab initio. [Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.
2005).]
Defendants raise the following points on appeal:
We have stated:
I. THE COURT ERRED IN DENYING DEFENDANT[S’]
MOTION TO ADJOURN THE TRIAL DATE AND RE- In our judicial system, “justice is the polestar and our
OPEN DISCOVERY TO ALLOW FOR A SUBSTITUTE procedures must ever be moulded and applied with that in
EXPERT WITNESS WHICH WAS NECESSARY mind.” N.J. Highway Auth. v. Renner, 18 N.J. 485, 495
TO SUSTAIN THE DEFENDANT[S’] BURDEN OF (1955) .... “There is an absolute need to remember that the
COUNTERCLAIM PROOF. primary mission of the judiciary is to see justice done in
individual cases. Any other goal, no matter how lofty, is
II. THE COURT ERRED IN DENYING THE MOTION secondary.” Santos v. Est. of Santos, 217 N.J. Super. 411,
TO CHANGE VENUE. 416 (App. Div. 1986).

... For that reason, “[u]nless otherwise stated, any rule may
be relaxed or dispensed with by the court in which the

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 2
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Davison, Eastman & Munoz, P.A. v. Clancy, Not Reported in Atl. Rptr. (2021)
2021 WL 6121967

action is pending if adherence to it would result in an
injustice.” [R. 1:1-2(a).]
II.
[Salazar v. MKGC Design, 458 N.J. Super. 551, 557-58
(App. Div. 2019) (first alteration in original).] Defendants’ arguments regarding the motion to change venue
lack sufficient merit to warrant discussion in a written
Having thoroughly reviewed the record, we are convinced opinion. R. 2:11-3(e)(1)(E). A change of venue may be
the refusal to grant defendants’ motion to reopen discovery ordered by the Assignment Judge “if there is a substantial
caused an unjust result. Exceptional circumstances clearly doubt that a fair and impartial trial can be had in the county
warranted extending the discovery period. Defendants were where venue is laid ....” R. 4:3-3(a)(2). The movant bears the
diligent in retaining an expert who produced a report within burden of demonstrating good cause for the change. Pressler
the original discovery timelines. Their expert unilaterally & Verniero, Current N.J. Court Rules, cmt. on R. 4:3-3
abandoned them at the eleventh hour, through no fault of their (2022); see Barlyn v. Dow, 436 N.J. Super. 161, 185 (App.
own. Defendants acted promptly, obtained plaintiff's consent Div. 2014). A change of venue is warranted when there is
to an extension, and filed the appropriate motion. As the clear and convincing evidence that a fair and impartial trial
trial judge noted, an expert was essential to defendants’ case. cannot be had in a ve

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