Opinion
DOCKET NO. A-6017-10T1
01-28-2013
IYATA ANDERSON SHYMANSKI, Plaintiff-Appellant, v. CITY OF ATLANTIC CITY, Defendant-Respondent, and JOHN MOONEY, MICHAEL RUSSACK and JOHN PHERRIBO, Defendants.
Timothy J. McIlwain argued the cause for appellant. Steven C. Mannion argued the cause for respondent (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Mr. Mannion, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Ostrer and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2292-08.
Timothy J. McIlwain argued the cause for appellant.
Steven C. Mannion argued the cause for respondent (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Mr. Mannion, on the brief). PER CURIAM
Plaintiff Iyata Anderson Shymanski appeals from the Law Division's June 30, 2011 order that granted summary judgment to defendant, City of Atlantic City (the City), and denied plaintiff's motion for reconsideration. She also contends that sanctions were improperly imposed in an interlocutory order. Having considered plaintiff's arguments in light of the record and applicable legal standards, we affirm in part and reverse in part.
I.
We set forth the procedural history of the litigation in some detail because it is of particular importance to our decision. We also note the serious omissions in the appellate record occasioned by plaintiff's failure to comply with Rule 2:6-1(a)(1)(I) (requiring that appellant's appendix include "such . . . parts of the record . . . as are essential to the proper consideration of the issues[,]" and "[i]f the appeal is from a summary judgment, . . . a statement of all items submitted to the court on the summary judgment motion and all such items . . . ." (Emphasis added).
On July 10, 2008, plaintiff filed a complaint against the City, and two of its police officers, Sergeant Michael Russack and then-acting Police Chief John Mooney, alleging violations of the New Jersey Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49. On February 20, 2009, plaintiff filed an amended complaint adding police Sergeant John Pherribo as a defendant.
Although the complaint contained only one count, plaintiff alleged several separate violations of the LAD. Specifically, plaintiff alleged that: she was terminated from employment as a City police officer on October 16, 2006, in violation of the LAD; since 2001, she was subjected to retaliatory treatment as a result of "filing a complaint . . . against another officer for sexual harassment"; she was subject to disparate treatment regarding her contractual rights in violation of the LAD; the City disparately applied its personnel policies and procedures in violation of the LAD; and her privacy was invaded through "gender and race based decision making" during an internal affairs investigation that commenced in 2005 and ended with her termination. Central to some of plaintiff's claims was an interview conducted on April 1, 2005, by Russack and Pherribo, then-assigned to the internal affairs division of the City's police department.
During discovery, Mooney and Russack moved to dismiss the complaint because of plaintiff's failure to supply interrogatory answers and respond to document production requests. Additionally, although it is unclear from the record the exact relief requested, it appears that defendants sought dismissal of the complaint based on plaintiff's counsel's refusal to permit her to answer certain questions posed during her deposition.
The appendices do not include the motions or supporting documents. We therefore discern what occurred from the transcript of plaintiff's deposition, plaintiff's counsel's legal submission in support of the cross-motion, oral argument on the motions, the judge's oral decision and his order.
Plaintiff filed a cross-motion, seeking a protective order pursuant to Rule 4:10-3. In his letter brief in support of the motion, plaintiff's counsel alleged defendants' discovery requests were "burdensome, harassing and oppressive." Counsel also argued that plaintiff sought the protective order "on privacy grounds as well[,]" noting the objectionable questions posed to plaintiff during her deposition regarding her "sex life, . . . the number of times she was pregnant and/or the total number of abortions[]" plaintiff had. The cross-motion also requested plaintiff's reinstatement to her former position. This request was premised upon a settlement offer allegedly made, and subsequently reneged upon, by the City. Alternatively, plaintiff sought leave to file a second amended complaint.
The attorneys appeared before the motion judge on August 14, 2009, for oral argument. The judge entered an order that day (the August 2009 order) dismissing the complaint against Russack and Mooney without prejudice, and conditioning reinstatement upon: plaintiff "providing fully responsive" interrogatory answers; responding to document production requests; and "answering all proper questions of defense counsel at her deposition." In addition, the order provided for an award of counsel fees in the amount of $2000 each for Russack's, Mooney's and the City's attorneys, and further conditioned reinstatement upon payment. Lastly, the order denied plaintiff's cross-motion.
Plaintiff moved to recuse the judge, vacate all prior orders, compel the City to comply with her October 2009 discovery demands and extend the discovery end date. In an order entered January 25, 2010 (the January 2010 order), a second judge, to whom the case was now assigned, granted plaintiff's request to compel the City to provide discovery and extend the discovery end date.
We are unable to determine when the motion was made by plaintiff since it is not included in the record.
Plaintiff sought to enforce the January 2010 order by subsequent motion, filed on March 18, 2010. In the order that resulted, entered April 21, 2010, the judge denied plaintiff's "[m]otion to [c]ompel" and "[m]otion to [s]uppress" without prejudice, permitting her to "resubmit" the motions "with evidence that [it] has been properly served on all parties . . . ." Apparently, plaintiff never made another motion to enforce the January 2010 order or compel discovery from the City prior to December 2010, when the City moved for summary judgment.
The appellate record includes the City's statement of undisputed facts and defense counsel's certification without exhibits. On December 21, 2010, without filing "a responding statement either admitting or disputing each of the facts in the movant's statement," Rule 4:46-2(b), plaintiff filed a cross-motion that sought: suppression of the City's answer for failing to comply with the January 2010 order; entry of default; adjournment of the summary judgment motion until February "to permit plaintiff to file her summary judgment for judicial efficiency"; and adjournment of the January 24, 2011, trial date with the City's consent. Plaintiff's counsel's certification set forth a series of out-of-state commitments he had between December 23 and January 27, 2011.
"A cross-motion may be filed and served by the responding party together with that party's opposition to the motion and noticed for the same return date only if it relates to the subject matter of the original motion." R. 1:6-3(b) (emphasis added). Only the request for an adjournment of the City's summary judgment motion was properly the subject of a cross-motion.
On December 30, 2010, the City provided purported responses to plaintiff's October 2009 document demand, and, on February 17, 2011, the City supplied supplemental answers to plaintiff's interrogatories.
Apparently, the trial date was adjourned.
On March 8, 2011, concluding the City's motion was "unopposed," without oral argument the judge entered an order granting the City partial summary judgment (the March 2011 order). Specifically, the order dismissed with prejudice "plaintiff's claims . . . for retaliation, wrongful termination, and discrimination arising out of the April 1, 2005 interview . . . ." If the judge entered an order regarding plaintiff's cross-motion, it is not in the record.
The City again moved for summary judgment on the balance of plaintiff's complaint. We have not been provided with the motion or supporting documentation, nor have we been supplied with plaintiff's opposition or cross-motion seeking reconsideration of the March 8 order.
After conducting oral argument on May 5, the judge entered an order on June 30, 2011, accompanied by a written decision. The judge denied plaintiff's motion for reconsideration, noting that "[i]nstead of responding to [the City's] motion for partial summary judgment, [p]laintiff filed an unrelated motion and sought additional time to respond because of counsel's other commitments." The judge further noted that discovery "closed on January 15, 2011[,]" and "[p]laintiff . . . failed to make a motion to reopen discovery."
The order also granted the City summary judgment and dismissed the complaint with prejudice. The judge concluded that the remainder of plaintiff's claims were time-barred under the two-year statute of limitations applicable to the LAD.
On July 13, 2011, apparently on motion, the judge dismissed plaintiff's complaint with prejudice as to Pherribo. We have not been provided with the motion, its supporting documentation, or plaintiff's opposition, although the judge's order indicates the motion was opposed.
Plaintiff filed her notice of appeal on August 12, 2011, and listed only the June 30, 2011, order as the one from which she appealed. In her case information statement, plaintiff cited the August 2009 order and stated that it improperly awarded sanctions against [p]laintiff . . . ."
After the appeal was filed, Pherribo moved for summary disposition. That motion was unopposed by plaintiff, and we entered an order on June 5, 2012, dismissing the appeal as to Pherribo. Counsel for Mooney, on notice to plaintiff's counsel, indicated that he was not participating in the appeal since plaintiff never sought to reinstate the complaint in the Law Division, and plaintiff's notice of appeal and case information statement "d[id] not indicate that she [was] appealing from any dismissal order as to [Mooney]." Counsel for Russack provided us with a stipulation of dismissal with prejudice, consented to by plaintiff's counsel, entered in the Law Division on January 7, 2010.
II.
Before discussing the merits of plaintiff's legal arguments, we clarify what is cognizable on appeal and what is not. The City has specifically argued that our review is limited solely to the June 30, 2011, order that denied plaintiff's motion for reconsideration and granted the City summary judgment on the balance of plaintiff's LAD claims. We largely agree.
Rule 2:5-1(f)(3)(A) provides that "[i]n civil actions the notice of appeal . . . shall designate the judgment, decision, action or rule, or part thereof appealed from . . . ." "[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2013); and see, e.g., 30 River Court East Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006) (refusing to review orders dismissing the defendant's affirmative claims because they were not included in the notice of appeal); Campagna ex rel. Greco v. American Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (refusing to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001).
"Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, supra, comment 6.1 on R. 2:5-1. We have so held in a number of cases. See, e.g., W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008) (considering only the order denying reconsideration because it was the only order designated in the notice of appeal); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002).
As noted, plaintiff's notice of appeal only listed the June 30, 2011 order; the March 2011 order is not mentioned in either the notice of appeal or plaintiff's case information statement. Therefore, as to the substantive issues raised by plaintiff on appeal, we limit our review to the provisions of the June 30, 2011 order.
Several points presented in plaintiff's brief, therefore, are not properly before us. In Point I, plaintiff argues that summary judgment was improper because the judge failed to provide her "with any favorable inference on the issue of disparate treatment since male officers were suspended for [un]truthfulness not terminated like plaintiff." We need not explore the entire record to explicate the basis for this argument. It suffices to say that the March 2011 order granted the City partial summary judgment and dismissed plaintiff's claim of termination in violation of the LAD. That order is not before us.
In Point III, plaintiff argues the judge abused his discretion "by selectively applying the rules to defendant's benefit and substantially prejudicing plaintiff in the process." She cites two specific instances, both of which plaintiff claims led to the March 2011 order granting the City partial summary judgment. Again, that order is not before us.
In Point II, plaintiff contends that the judge erred in granting the City summary judgment as to her remaining LAD claims in the June 30, 2011, order. She argues that the LAD "statute of limitations runs from the date of termination," her complaint was filed within two years of that date, and the allegations of LAD violations that preceded her termination were cognizable under the continuing violation theory. We conclude this legal argument is properly before us, and we consider its merits below.
We also note that plaintiff makes no specific argument of error regarding the other portion of the June 30, 2011 order, i.e., the denial of her motion for reconsideration. Indeed, the issue is not even addressed in plaintiff's brief. While we might properly consider the issued waived under these circumstances, see Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011), the City has addressed the merits in its brief. In the interests of justice, we therefore consider the propriety of the judge's denial of plaintiff's motion for reconsideration. See Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 543 (App. Div. 2009) (in the interests of justice considering an issue although briefed only in appellant's reply brief), certif. denied, 203 N.J. 93 (2010).
Plaintiff's case information statement, however, did indicate she was challenging the sanctions imposed by the August 2009 order. Those issues were fully briefed. In Point IV, plaintiff argues that she was entitled to a protective order to prevent questions asked by defense counsel during her initial deposition regarding her sexual history and other private matters. It was plaintiff's counsel's refusal to permit those questions to be answered that led to the award of $6000 in sanctions contained in the August 2009 order. In Point V, plaintiff specifically challenges that award.
We conclude that despite the failure to include the August 2009 order in her notice of appeal, plaintiff's challenge to the sanctions imposed by that order were clearly set forth in her case information statement, and the City and other defendants were on notice. See Fusco, supra, 34 9 N.J. Super. at 461 n.1 (noting the obligation to include all orders in both the notice of appeal and case information statement "to assure preservation of . . . rights on appeal"). We therefore consider the issues raised on appeal regarding the sanctions imposed in the August 2009 order.
III.
A. Plaintiff's motion for reconsideration
The denial of a motion for reconsideration rests within the sound discretion of the trial judge. Fusco, supra, 349 N.J. Super. at 462. "Motions for reconsideration are granted only under very narrow circumstances." Ibid. We have long recognized that:
Reconsideration should be used only for those cases which fall into that narrowA motion for reconsideration must "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2.
corridor in which either (l) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
As noted, the record consists solely of the transcript of oral argument and the judge's written decision and order. As best we can gather, plaintiff argued reconsideration of the March 2011 order was appropriate because, although she did not file opposition to the City's motion for partial summary judgment, there was outstanding discovery, previously ordered, and the City's motion should have been adjourned as requested by her cross-motion. She also claimed that in the documents produced by the City in late December, it was apparent that discipline short of termination was imposed against four male officers cited for untruthfulness. Therefore, material disputed facts existed that warranted reconsideration of her claim that she was terminated in violation of the LAD.
As the judge noted, discovery closed on January 15, 2011. Plaintiff never moved to extend discovery before it expired; indeed, that request was not made even in her December 2010 cross-motion, which sought to strike the City's answer and enter default. During argument on the reconsideration motion, plaintiff pointed to attempts in February to depose various officers. We cannot discern why she waited so long, but it suffices to say that her failure to seek a discovery extension before discovery ended is fatal. R. 4:24-1(c).
More importantly, plaintiff's assertion that the City's failure to provide discovery compelled by prior orders was a basis for reconsideration does not explain plaintiff's own failure to compel compliance. Plaintiff's motion brought in April 2010, eight months before the City's summary judgment motion was filed, was denied without prejudice. Plaintiff never again moved to compel production of discovery that she contended was critical to oppose summary judgment. She was required to do so before discovery ended. R. 4:24-2.
The other cause for reconsideration hinted at was plaintiff's argument that discovery, provided by the City after it filed its first summary judgment motion and after plaintiff filed her cross-motion, revealed several male officers were not terminated for untruthfulness, while she was. However, the City specifically included in its statement of undisputed facts in support of its original summary judgment motion the names of two male officers who had been terminated for untruthfulness. Plaintiff never opposed this statement of undisputed fact. Plaintiff's counsel's retort during oral argument on the motion for reconsideration was that the City had "manufactured" this defense years later. There was no support for that claim other than the fact that the two male officers were terminated after plaintiff.
Undoubtedly, discovery as to other male officers who were not terminated for untruthfulness was supplied by the City in December 2010. But, that evidence cannot be characterized as "newly discovered." In fact, the names of two of those officers were cited for this proposition, "on information and belief," in plaintiff's complaint. Had plaintiff diligently sought to enforce the prior discovery orders, she would have had this information in hand when the City first moved for summary judgment, not afterwards. See Fusco, supra, 34 9 N.J. Super. at 463 (rejecting the claim of newly discovered evidence as to a document the plaintiff possessed and noting the plaintiff "cannot now seek to bring this document in under the guise of reconsideration after defendant prevailed on summary judgment") (citations omitted); and see D'Atria, supra, 242 N.J. Super. at 401 (in the context of a motion for reconsideration, characterizing newly discovered evidence as that which the litigant "could not have provided on the first application"). Moreover, the names of four male officer who were not terminated, standing alone and without the possibility of further exploration in discovery, fails to convince us that the initial grant of summary judgment was worthy of reconsideration.
In short, the judge did not abuse his discretion by denying plaintiff's reconsideration motion.
B. The City's summary judgment motion
"In an appeal of an order granting summary judgment, appellate courts 'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (alteration in original) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable toWe then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on issues of law, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]
As noted, our review is hampered because plaintiff only supplied us with the transcript of the oral argument on May 5, 2011, the June 30, 2011, order and the judge's written decision. In order to provide some context to our discussion, we are forced to accord plaintiff the benefit of all favorable inferences by assuming, arguendo, the veracity of allegations contained in her amended complaint. We supplement our discussion through reference to those deposition transcripts and documents in the appellate record, assuming for purposes of our review that they were furnished to the motion judge.
Plaintiff, who is African-American, was appointed as a probationary police officer on October 30, 2000, after which she attended training at the police academy. During firearms instruction, Pherribo allegedly touched plaintiff in a sexual manner and made suggestive comments to her. On the night of her graduation from the academy, plaintiff attended a party in a local bar with her boyfriend, police officer Andrew Jacques. Pherribo allegedly touched plaintiff in a sexual manner at the party.
Plaintiff alleged that, as a woman, she was thereafter subjected to a hostile work environment. In particular, she alleged that another officer, Michael Camp, harassed her and falsely accused her of having sexual relationships with her superior officers. Plaintiff complained about Camp's conduct to her sergeant in September 2001. Thereafter, male officers allegedly referred to her by a derogatory nickname.
In December 2001, plaintiff had a verbal dispute with Jacques that resulted in a response by other officers. Ultimately, she was placed on administrative leave and forced to undergo two psychological evaluations before being permitted to return to her job.
In February 2002, plaintiff bit her minor brother during a physical altercation. The brother supplied police with a statement, and plaintiff was suspended. She requested an internal affairs investigation, and the suspension was rescinded thereafter.
Plaintiff also alleged that in September 2005, she was denied a contractual salary increase based upon accrued college credits. In December 2005, Mooney denied her request for extended sick leave; although this was ultimately granted. In both instances, plaintiff alleged these benefits were accorded to other officers similarly situated, but denied to her based on her race and gender, or in retaliation for her earlier complaints.
In March 2005, plaintiff's former boyfriend, Carmen Rabatin, made a complaint to internal affairs. Plaintiff claimed she was impregnated by Rabatin. He apparently did not believe her, claimed plaintiff and others were harassing him and that his car's tires had been slashed. Pherribo, now assigned to internal affairs, conducted an investigation, during which he recorded and transcribed numerous phone calls made by plaintiff, her mother, and others on her behalf, to Rabatin. The calls may be described generally as harassing. Plaintiff was again placed on administrative leave.
On April 1, 2005, Russack and Pherribo took a recorded statement from plaintiff in which they extensively questioned her regarding her sexual history and whether she was pregnant or had been before. The officers asked plaintiff to furnish "some documentation from the doctor's office" indicating that she was pregnant. On April 8, 2005, plaintiff submitted a forged doctor's note indicating she had been pregnant during the months of February and March. She later admitted the forgery to Pherribo.
The City issued a preliminary notice of disciplinary action charging plaintiff with violations of the police department's rules and regulations, and conduct unbecoming. A hearing was convened, at which plaintiff stipulated to the factual allegations. The only issue was the discipline to be imposed. The hearing officer recommended plaintiff be terminated, and she was on October 16, 2006.
Before the motion judge, recognizing that plaintiff's claims for retaliation, wrongful termination, and discrimination arising out of the April 1, 2005, interview had already been dismissed, the City argued that these other various allegations were "discrete acts," all of which occurred more than two years before plaintiff filed her complaint. Plaintiff contended the course of conduct was continuing up to the termination, but, more directly, counsel argued the earlier grant of summary judgment was improper because the City had not fulfilled its discovery obligation. Additionally, plaintiff contended that the discovery provided after the City filed its summary judgment motion demonstrated that other male police officers were disciplined for untruthfulness but were not terminated.
"The statute of limitations for LAD claims is two years." Roa v. Roa, 200 N.J. 555, 566 (2010) (citing Montells v. Haynes, 133 N.J. 282, 292 (1993)). The continuing violation theory is "a judicially created doctrine" that provides "an equitable exception to the statute of limitations." Ibid.
[T]he continuing violation theory was developed to allow for the aggregation of acts, each of which, in itself, might not have alerted the employee of the existence of a claim, but which together show a pattern of discrimination. In those circumstances, the last act is said to sweep in otherwise untimely prior non-discrete acts.If a plaintiff
[Id. at 569.]
allege[s] a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment . . ., then [her] cause of action would have accrued on the date on which the last act occurred, notwithstanding "that some of the component acts of the hostile work environment [have fallen] outside the statutory time period."
[Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 21 (2002) (quoting Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 122 S. Ct. 2061, 2074, 153 L. Ed. 2d 106, 124 (2002)).]
Here, plaintiff filed her initial complaint in July 2008. Therefore, for purposes of defeating summary judgment, she must have demonstrated that some component act of a hostile work environment or disparate treatment occurred after July 2006. Since the actual claims of retaliation and termination based upon the April 2005 interview had already been dismissed, none of her other allegations fell within the statute of limitations. Therefore, the continuing violation theory did not apply and the City was properly granted summary judgment.
IV.
Lastly, plaintiff contends it was error to have imposed sanctions based upon the objections raised by her counsel during her deposition. We agree, and therefore reverse and vacate that portion of the August 2009 order awarding fees in the amount of $6000.
At plaintiff's May 11, 2009, deposition, counsel advised her not to answer on privacy grounds certain questions directed to her sexual activities, whether she claimed to have been pregnant by other police officers, and how her pregnancies "end[ed]." When Russack and Mooney moved to dismiss the complaint for discovery violations, they apparently sought sanctions.
We have not been supplied with the motions, and oral argument is unclear as to whether defense counsel made a specific request.
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The judge concluded plaintiff's counsel's twenty-three objections violated Rule 4:14-3(c). The judge continued:
Now what I could do and I'm not going to do, . . . is instruct [defense counsel] to prepare a certification with all your time entries and present to me, you know, your billing statements before I award counsel fees. What I want to do is end this chapter of this problem and maybe go forward from here with this litigation . . . .
. . . .
. . . I think in an attempt not to . . . award [defense counsel] every penny they're entitled to, and certainly by no means is this punitive, I believe each one of the defense counsel's law firms is entitled to reimbursement of counsel fees and expenses for the original deposition that got aborted, for the making of this application, appearing at oral argument, and resuming the deposition, of $2,000 to each law firm, for a total of $6,000.
We agree with plaintiff that the questions posed during her deposition did not seek "information . . . reasonably calculated to lead to the discovery of admissible evidence," Rule 4:10-2(a), and, therefore, were objectionable. The judge erred in concluding counsel's objections violated Rule 4:14-3(c), which specifically permits an attorney to instruct a witness not "to answer a question [if] the basis of the objection is . . . a right to confidentiality . . . ." We need not address the propriety of the method used to calculate the award because it was error to have made any award under these circumstances. We vacate that portion of the August 2009 order that awarded defense counsel sanctions in the amount of $6000.
Affirmed in part, reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION