                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0758-15T3

FRANK CARABALLO,

        Plaintiff-Appellant,

v.

CITY OF JERSEY CITY POLICE
DEPARTMENT, a municipal entity,
and THOMAS COMEY, individually
and in his representative capacity,

        Defendants-Respondents.

________________________________________

              Argued October 3, 2017 – Decided November 8, 2017

              Before Judges Carroll and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              0995-13.

              Brian F.       Curley     argued     the    cause    for
              appellant.

              Scott W. Carbone, Assistant Corporation
              Counsel, argued the cause for respondents
              (Jeremy    Farrell,   Corporation    Counsel,
              attorney; Mr. Carbone, on the brief).

PER CURIAM
      Plaintiff Frank Caraballo appeals from an August 28, 2015

order granting defendant Jersey City Police Department (JCPD)

summary judgment dismissing plaintiff's employment discrimination

complaint.          We reverse.

      The following facts are taken from the record.                                Plaintiff

joined the JCPD in 1973.                   On August 13, 1999, while on duty,

plaintiff was involved in a serious auto accident caused by the

failure of the brakes on the city vehicle he was operating.                               As a

result     of       the   accident,    plaintiff        sustained        several    injuries

including           herniated     discs,     broken      surgical        pins,      temporary

paralysis, a neurological injury, and a torn meniscus.

      In    2001,         plaintiff    filed       a   workers'        compensation      claim

against Jersey City regarding his injuries.                       The claim was settled

in 2013.    From 2001 until 2006, plaintiff's employment status with

JCPD fluctuated between paid sick leave, light duty, and full

duty.

      In 2006, a city-appointed orthopedic physician, Dr. Juluru

Rao, recommended physical therapy and indicated in his report

"anthroscopy may buy [plaintiff] relief for a very short period

of   time       .    .    .    [but   then   plaintiff]          may    need     total    knee

replacement."                 Thereafter,    plaintiff       was        sent   to    another

physician, Dr. Leonard Jaffe, for another opinion.                                 Dr. Jaffe

concluded           plaintiff     "would     not       recover    without        significant

                                               2                                      A-0758-15T3
surgery, namely total knee replacements[.]"             The recommendation

that plaintiff receive knee surgery was documented in connection

with plaintiff's workers compensation claim in December 2006 by

Dr. Edward Boylan who wrote in a Case Progress Report "AWAITING

B/L KNEE REPLACEMENT."       This pattern continued whereby plaintiff

was sent to Dr. Rao on April 17, 2007, and January 15, 2008, and

Dr. Jaffe on July 7, 2009, and January 10, 2011.

      The final evaluation by Dr. Jaffe on January 10, 2011, was

requested by Jersey City's risk management department in order to

evaluate plaintiff's knees and comment on his fitness for duty.

After receiving the evaluation, defendant advised plaintiff that

he   should   retire   by   March   1,   2011   or   JCPD   would   apply    on

plaintiff's behalf for a New Jersey Police and Firemen's Retirement

System (PFRS) disability retirement.1

      A meeting between plaintiff, his union representative, and

Jersey City Chief of Police Thomas Comey was held on February 28,

2011, to discuss plaintiff's retirement.             Following the meeting,

plaintiff's union representative informed Comey that he would be

retiring "under protest."      Plaintiff retired March 11, 2011.




1
  Plaintiff submitted an application for retirement to PFRS on
August 24, 2010, with a requested effective date of September 1,
2010. Plaintiff then changed the effective date to November 1,
2010, and ultimately March 1, 2011.

                                     3                                A-0758-15T3
     Plaintiff filed a complaint in the Law Division on February

28, 2013, against the JCPD and Comey.            Plaintiff's complaint

asserted a cause of action under the New Jersey Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49 and the New Jersey

Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2.            After discovery

ended,   defendants   moved   for   summary   judgment.     Subsequently,

plaintiff withdrew his claims against Comey individually and the

CRA claim, leaving only the accommodation based LAD claim against

the JCPD.

     On August 31, 2015, the motion judge placed an oral opinion

on the record.    The motion judge adjudicated the LAD and the CRA

claims, even though the latter had been withdrawn by plaintiff.

The judge made several findings of fact that were disputed by the

parties.    The judge found plaintiff refused surgery and had never

asked for it.     Relying on disputed medical reports, the motion

judge concluded plaintiff's accommodation claim failed because he

could not perform the essential job functions of a police officer.

The judge found plaintiff had no viable LAD claim because he had

failed to enforce his right to have the surgery in the workers'

compensation court even though the JCPD did not contest plaintiff's

right to the surgery.     Plaintiff now appeals the motion judge's

entry of summary judgment.



                                     4                            A-0758-15T3
     We review the grant of summary judgment by a trial court de

novo.   Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.

of Pittsburgh, 224 N.J. 189, 199 (2016).        We apply the same

principles governing an adjudication of a motion for summary

judgment as the trial court.     Atl. Mut. Ins. Co. v. Hillside

Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif.

denied, 189 N.J. 104 (2006).     Rule 4:46-2(c) states an order

granting summary judgment shall be entered "if the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law."     A fact

is material if it is substantial in nature.   See Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 529 (1995).

     "A court deciding a summary judgment motion does not draw

inferences from the factual record as does the factfinder in a

trial, who 'may pick and choose inferences from the evidence to

the extent that "a miscarriage of justice under the law" is not

created.'"   Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)

(quoting Brill, supra, 142 N.J. at 536).      Rather, in reviewing

summary judgment orders, the court must look at the facts in a

light most favorable to the non-moving party and determine whether



                                5                           A-0758-15T3
a genuine issue of material fact exists sufficient to be tried.

See Brill, supra, 142 N.J. at 523.

     Plaintiff argues the motion judge erred granting summary

judgment by making "a plethora of findings of fact on genuinely

disputed issues of fact."           Specifically, plaintiff argues the

motion   judge   erred     by:   (1)       misstating   the    timeline     and

mischaracterizing the nature of plaintiff's injuries; (2) stating

plaintiff refused knee surgery "due to family problems"; and (3)

concluding   summary     judgment    was     appropriate    since   plaintiff

refused the alleged reasonable accommodation.              We agree.

     The motion judge concluded plaintiff refused to undergo knee

surgery by relying on materially disputed facts.              The judge said

"[d]espite recommendations from several doctors, plaintiff did not

undergo surgery to his right knee due to family problems."                  The

judge also concluded plaintiff did not ask for the surgery.

Relying on Comey's deposition testimony, the judge found:

          Accordingly, Comey testified that [] had
          plaintiff ask[ed] him to authorize the knee
          replacement surgery, he would have contacted
          [Lt.] McLellan [the Commander of the JCPD
          Medical Bureau] and would have done so. . . .
          After plaintiff was informed by Lt. McLellan
          that he was unfit for duty, Comey asserted the
          plaintiff refused to see a knee replacement
          specialist.

     The motion judge's conclusions are refuted by the record.

Specifically, the finding that plaintiff refused the surgery is

                                       6                               A-0758-15T3
contradicted by a July 17, 2006 letter from plaintiff's counsel

to the Jersey City Law Department stating plaintiff had recently

seen Dr. Rau and Dr. Jaffe and was informed he was a candidate for

total knee replacement surgery.            The letter states in pertinent

part "Kindly have risk management authorize the aqua therapy and

the surgery recommended by both Dr. Rau and Dr. Jaffe."

       Nearly two years later on April 9, 2008, plaintiff's counsel

wrote the Jersey City Law Department stating "My client who does

wish to have the knee replacement(s) wants to have the surgery

done by Dr. Hartspan (specialist in knee replacement)." The letter

concludes:    "I   would     ask    that    you     confirm     Mr.     Soriero's2

authorization with him and provide me with written authorization,

which I can give to Dr. Hartspan."

       On December 18, 2008, plaintiff's counsel again corresponded

with the Jersey City Law Department quoting Dr. Jaffe's April 17,

2006 report, which stated plaintiff will not recover without a

total knee replacement.        The letter ends "it seems that all we

need is authorization for the surgery."              Thus, whether plaintiff

refused surgery or requested it is a materially disputed fact.

       Additionally, the record also contains deposition testimony

from   Soriero,    that    defendant   failed       to    follow   up    approving


2
   Peter Soriero      was     the   JCPD     risk        management     department
representative.

                                       7                                   A-0758-15T3
plaintiff's knee surgery, and that plaintiff had not refused the

surgery.   Soriero testified as follows:

           [Q.]: Do you recall any communications from
           Ms. Murphy in the law department or anybody
           in the law department forwarding the request
           – I would call it a demand – that the knee
           replacement surgery be approved?

           [Soriero]:   I do not recall this, no, I don't.

           [Q.]: Well, in a context like this where at
           that time Mr. Caraballo has been diagnosed by
           the two city-approved and appointed orthopedic
           experts that he needed the knee replacement
           surgery, are you saying that it was perfectly
           feasible that it would have just fallen into
           some hole where the doctor did not make the
           proper   request   and  therefore   the   risk
           management department did not grant approval?

           [Soriero]:     It's very possible.       As I
           explained before, our operations are somewhat
           informal. It's not like an insurance company.
           We're somewhat informal, so it's a possibility
           that that could have happened, yes.

Soriero also testified:

           [Q.]: We're going to see numerous more
           requests from 1999 to 2011, twelve years, five
           of which we can document recommendations from
           the city doctors to have knee replacements.
           At some point doesn't somebody wake up to the
           idea that, Okay, let's get it done, and if
           it's a paperwork problem . . . [then] let's
           go tell them they need to give us a specific
           where and when so we can get this done because
           we have an officer in distress? . . . I mean,
           at some point shouldn't that light bulb go
           off?

           [Soriero]:   Yes, it should have.


                                  8                          A-0758-15T3
          [Q.]:   Because you're speaking for the city
          on this particular point, is it the city's
          position that the surgery did not occur
          because Mr. Caraballo refused to have it, the
          knee replacement surgery?

          [Soriero]:    Not to my knowledge he refused it,
          no.

     This testimony was not addressed by the motion judge and

demonstrates a material dispute of fact.             Summary judgment was

inappropriate under these circumstances.

     Although the motion judge did rely on Comey's deposition

testimony to draw the conclusion plaintiff did not request the

surgery, the judge ignored the portions of Comey's testimony that

contradicted the statements relied upon to grant summary judgment.

Specifically,   Comey     testified       although   plaintiff   may   have

expressed reservations about surgery, he did not refuse it.

          [Q.]:   In other words, [] was [plaintiff]
          refusing to have [the surgery]?

          [Comey]:   Not that he was refusing.     Not
          refusing. Hesitations or reservation. Having
          surgery was his own personal choice.

                . . . .

          [Q.]: You don't recall him ever expressing –
          saying he didn't want to have the surgery,
          correct?

          [Comey]:     No, sir.

                . . . .



                                      9                            A-0758-15T3
            [Q.]: And he never made any expression to you
            saying, "I do not want to have knee surgery."
            He never said anything like that to you,
            correct?

            [Comey]:   To the best of my recollection, no,
            sir.

Additionally, Comey testified that he could not recall whether

plaintiff had been approved to have the surgery by risk management.

     Comey's testimony demonstrates the existence of material

factual    disputes.    "[A]n      issue   of   fact   is   genuine    only   if,

considering    the   burden   of    persuasion    at   trial,   the     evidence

submitted by the parties on the motion . . . would require

submission of the issue to the trier of fact."              Schiavo v. Marina

Dist. Dev. Co., 442 N.J. Super. 346, 366 (App. Div. 2015) (quoting

R. 4:46-2(c)), certif. denied, 224 N.J. 124 (2016).                   The record

is replete with material factual disputes over the central issue

of why plaintiff retired without receiving knee surgery.                 Whether

there was a justification for the passage of time is a dispute

that could not be decided on summary judgment and is for the trier

of fact.

     We turn next to plaintiff's argument the motion judge erred

by concluding plaintiff was not qualified under the LAD to assert

an accommodation claim because he was              unable to perform the

essential duties of his job without a reasonable accommodation.

Plaintiff asserts the motion judge misconstrued the LAD because

                                      10                                 A-0758-15T3
the question was whether plaintiff could perform the essential

duties    of   his    position     after   being   afforded     a   reasonable

accommodation.       We agree.

      Pursuant to Victor v. State, 203 N.J. 383, 410 (2010), a

plaintiff must demonstrate: (1) he was disabled within the meaning

of the LAD; (2) he was otherwise qualified to perform the essential

functions of the job, with or without accommodations; and (3) he

suffered an adverse employment action because of the disability.

The     employer     has    an   affirmative    obligation     to   reasonably

accommodate a disabled employee.

      The second prong of the LAD test "requires plaintiff to

demonstrate that he or she is qualified to perform the essential

functions of the job, or was performing those essential functions,

either with or without a reasonable accommodation." Victor, supra,

203 N.J. at 410.           Therefore, a plaintiff may assert he would be

able to perform the essential functions of his job with the

reasonable accommodation requested.             Ibid.   In other words, the

court must consider "whether [the] reasonable accommodation[]

would     enable     the     [plaintiff]   to    perform     [the   essential]

functions[.]"        Svarnas v. AT&T Commc'ns, 326 N.J. Super. 59, 75

(App. Div. 1999).




                                      11                               A-0758-15T3
     Here, the motion judge misunderstood prong two and relied

upon materially disputed evidence to disqualify plaintiff from

meeting it.   The judge reasoned:

          Plaintiff   advances   the   argument   that
          defendant's expert Dr. Hunter testified that
          plaintiff could have returned to full duty
          employment if a knee replacement surgery was
          performed. []

          This argument is of no moment because
          plaintiff was not qualified under the NJLAD
          due to the fact he could not perform the
          essential functions of his position as a
          police detective.

                 . . . .

          There is ample evidence in the record to
          support this conclusion.        As Dr. Jaffe
          indicated in his evaluation of plaintiff, ["]I
          do not feel he is a candidate to return to
          work as a police officer either now or in the
          future based on the disability and evaluations
          from today[.]["]

     Although plaintiff may not have been able to perform the job

of detective without a reasonable accommodation, there was a

material dispute as to whether he would have been able to perform

his job with a reasonable accommodation, namely the surgery, which

should have been presented to a jury.   Plaintiff presented a prima

facie case for a reasonable accommodation claim under the LAD and

summary judgment was not appropriate.

     Reversed.



                               12                           A-0758-15T3
