                                NOT FOR PUBLICATION WITHOUT THE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-1435-18T2

FESSHON D. TREADWELL,

          Plaintiff-Appellant,

v.

LATOYA D. HAMMOND
and DANIEL M. RIVERA,

          Defendants,

and

ROBERT R. BAITY and
ROSETTA L. BAITY,

     Defendants-Respondents.
____________________________

                    Submitted September 11, 2019 – Decided October 7, 2019

                    Before Judges Whipple, Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-1012-17.

                    Jill Elaine Greene, attorney for appellant (Ryan J.
                    Murphy, on the briefs).
             Methfessel & Werbel, attorney for respondents (Lori
             Brown Sternback and James Victor Mazewski, on the
             brief).

PER CURIAM

      In this personal injury case that arose from a dog bite, plaintiff Fesshon

Treadwell appeals from orders dated July 6, 2018, August 10, 2018, August 24,

2018 and November 30, 2018. The first order denied plaintiff's second request

to extend the discovery end date (DED), the second order denied

reconsideration, the third order granted summary judgment to defendants Robert

and Rosetta Baity, and the fourth order rendered the matter final as to all parties.

We affirm.

      We discern the following facts and procedural history from the record.

On July 30, 2015, plaintiff was walking home on Bangs Avenue in Neptune

when he was attacked and bitten by a tan pit bull owned by defendants LaToya

Hammond and Daniel Rivera. Hammond and Rivera were tenants of Robert and

Rosetta Baity, who owned the property. When Hammond and Rivera leased the

property from the Baitys, the lease agreement included a provision that

precluded them from having a pet on the premises without written consent from

the landlord. Hammond and Rivera never requested consent to keep the dog on




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                                         2
the property, and the Baitys denied any knowledge of the dog, despite having

inspected the property during their tenancy.

       On March 13, 2017, plaintiff filed a complaint for personal injury against

Hammond, Rivera, the Baitys, and several fictitious defendants. The complaint

asserted defendants owned and/or controlled the premises of 1608 Bangs

Avenue, where they allowed and/or caused a dog to attack and bite plaintiff,

causing plaintiff injuries. Only the Baitys filed an answer, and the trial court

entered a case management order setting May 9, 2018, as the DED and August

2, 2018, as an arbitration date. On May 8, 2018, plaintiff moved to extend

discovery for the first time. The court granted that motion and entered an order

on May 25, 2018, extending the DED to July 16, 2018. In her statement of

reasons, the judge reasoned,

             [o]nce an arbitration date has been set, discovery may
             only be extended when the moving party shows
             exceptional circumstances. See R[.] 4:24-1(c) . . . .
             Here, plaintiff demonstrates that exceptional
             circumstances exist to extend discovery . . . additional
             time is needed in order to obtain OPRA 1 documents
             which may reveal that [d]efendants had knowledge of
             [c]o-[d]efendants' dog.




1
    Open Public Records Act (OPRA)
                                                                         A-1435-18T2
                                        3
      On June 19, 2018, plaintiff moved both to extend the DED once again,

this time to October 1, 2018, as well as to reschedule the arbitration date.

Plaintiff also requested oral argument in the event opposition was filed.

Although the Baitys did oppose the motion, on July 6, 2018, the trial judge

entered an order denying plaintiff's motion without entertaining oral argument

or issuing a statement of reasons.

      On July 12, 2018, plaintiff moved for reconsideration of the July 6, 2018 ,

order. However, before that motion was heard, discovery expired on July 16,

2018. Three days later, on July 19, 2018, the Baitys moved for summary

judgment, then filed opposition to plaintiff's motion for reconsideration the

following day, July 20, 2018.

      On August 2, 2018, plaintiff and the Baitys, through counsel, engaged in

the arbitration proceeding. The arbitrator found no liability for the Baitys and

100 percent liability for Hammond and Rivera, awarding plaintiff $120,000 in

gross damages.

      On August 3, 2018, plaintiff filed opposition to defendant's motion for

summary judgment, which included, notwithstanding the expiration of the

discovery period, an affidavit from a previously unidentified witness Jerry

Carter. Carter certified that, as an employee of a construction company doing


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                                       4
work for the Baitys, he was on the Bangs Avenue property several times, had

told Robert Baity about a dog on the property after hearing barking, and later

saw the tan pit bull there.

      On August 10, 2018, the trial judge entered an order and statement of

reasons denying plaintiff's motion for reconsideration.      She explained the

difference between the May 25, 2018, order and the July 6, 2018, order was that

the former only requested a seven day extension to obtain OPRA documents.

The latter, on the other hand, requested additional time for documents.

Subpoena responses ranged from some that were not due until after July 6, 2018,

but were still within the present discovery period; others were due after the

motion to extend was filed; and still others were requested as late as May 22,

2018, after the matter had persisted for over one year, and three years after the

actual incident. The judge further explained it had become apparent plaintiff

was seeking more than a singular piece of discovery in the OPRA request, but

was rather seeking multiple pieces of discovery which through due diligence

should have been obtained earlier, such as the depositions of Hammond and the

Neptune Housing Authority.

      The judge concluded she erred when she previously determined plaintiff

had been diligent, and therefore found plaintiff had not demonstrated


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                                       5
exceptional circumstances. On August 24, 2018, the trial judge heard argument

on defendant's motion for summary judgment and granted the motion in a ruling

from the bench. Plaintiff moved for leave to appeal, which we denied on

October 15, 2018. Finally, on November 30, 2018, the trial judge entered a

$120,000 default judgment against Hammond and Rivera, and this appeal

followed.

      On appeal, plaintiff argues the trial judge erred in denying his motion to

extend the DED by incorrectly applying the "exceptional circumstances"

standard as opposed to the "good cause" standard, and in the alternative, he has

presented sufficient circumstances to meet the exceptional circumstances

standard. Plaintiff also argues it was error to deny the motion without oral

argument. We disagree.

      "An appellate court applies an abuse of discretion standard to decisions

made by [the] trial courts relating to matters of discovery."        C.A. ex rel.

Applegrad v. Bentolila, 219 N.J. 449, 459 (2014) (alteration in original) (internal

quotation marks and citation omitted). "We generally defer to a trial court's

disposition of discovery matters unless the court has abused its discretion or its

determination is based on a mistaken understanding of the applicable law."




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                                        6
Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005) (citations

omitted). We discern no abuse of the court's discretion.

      Here, under Rule 4:24-1(c), plaintiff was required to show exceptional

circumstances to extend the DED because the court already scheduled

arbitration. See Rivers, 378 N.J. Super. at 78. "[E]xceptional circumstances

generally denote something unusual or remarkable. The moving party must

demonstrate counsel's diligence in pursuing discovery, establish the essential

nature of the discovery sought, explain counsel's failure to request an extension

within the original time period, and show that the circumstances presented were

clearly beyond counsel's control." Bldg. Materials Corp. of Am. v. Allstate Ins.

Co., 424 N.J. Super. 448, 479 (App. Div. 2012) (citations omitted).

      "No extension of the discovery period may be permitted after an

arbitration or trial date is fixed, unless exceptional circumstances are shown."

R. 4:24-1(c); Bender v. Adelson, 187 N.J. 411, 426 (2006). In order to establish

exceptional circumstances,

            the moving party must satisfy four inquiries: (1) why
            discovery has not been completed within time and
            counsel's diligence in pursuing discovery during that
            time; (2) the additional discovery or disclosure sought
            is essential; (3) an explanation for counsel's failure to
            request an extension of the time for discovery within
            the original time period; and (4) the circumstances


                                                                         A-1435-18T2
                                       7
            presented were clearly beyond the control of the
            attorney and litigant seeking the extension of time.

            [Rivers, 378 N.J. Super. at 79 (citations omitted).]

      Here, when plaintiff moved for the earlier extension, the judge found

exceptional circumstances existed to extend the DED for one week because she

determined plaintiff was diligent in pursuing discovery and needed the OPRA

records. However, when plaintiff moved for an extension of over two months,

his own certification to the court provided a sufficient record for the court to

determine he was not diligent and could not establish exceptional circumstances.

      We also reject plaintiff's assertion of error in the court's election to enter

the July 6, 2018 order without conducting oral argument. Rule 1:6-2(d)

provides:

            [e]xcept as otherwise provided by [Rule] 5:5-4 (family
            actions), no motion shall be listed for oral argument
            unless a party requests oral argument in the moving
            papers or in timely-filed answering or reply papers, or
            unless the court directs. A party requesting oral
            argument may, however, condition the request on the
            motion being contested. If the motion involves pretrial
            discovery or is directly addressed to the calendar, the
            request shall be considered only if accompanied by a
            statement of reasons and shall be deemed denied unless
            the court otherwise advises counsel prior to the return
            day. As to all other motions, the request shall be
            granted as of right.



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                                         8
      In Vellucci v. DiMella, 338 N.J. Super. 345, 347 (App. Div. 2001), we

said "[t]he trial court retains discretion as to whether oral argument is necessary

or appropriate when 'the motion involves pretrial discovery or is directly

addressed to the calendar . . . .'" (quoting R. 1:6-2(d)). We discern no abuse of

discretion, particularly in light of the court's explanation in response to

plaintiff's motion for reconsideration.

      We also reject plaintiff's argument the court committed error in granting

summary judgment. We derive relevant facts from the evidence submitted by

the parties in support of, and in opposition to, the summary judgment motion,

and view it in the light most favorable to plaintiffs, who opposed entry of

summary judgment. Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135

(2017) (citations omitted).

      Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346

(2017) (citations omitted). Thus, we consider, as the trial judge did, "whether

the evidence presents a sufficient disagreement to require submission to a jury

or whether it is so one-sided that one party must prevail as a matter of law."

Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46

(2007) (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 536 (1995)).


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                                          9
Summary judgment must be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, i f 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." Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,

199 (2016) (quoting R. 4:46-2(c)).

      "Under the common law, ordinarily a landlord is not responsible for

injuries caused by its tenant's dog." Hyun Na Seo v. Yozgadlian, 320 N.J. Super.

68, 71 (App. Div. 1999) (citing Cogsville v. Trenton, 159 N.J. Super. 71, 74

(App. Div. 1978)). Previously, in Linebaugh v. Hyndman, 213 N.J. Super. 117,

120 (App. Div. 1986), we said there were circumstances where a landlord could

be liable for injuries caused by a tenant's dog. The landlord in Linebaugh was

aware one of the tenants owned a large dog that had previously bitten another

person. Ibid. A child playing in the shared common area of the rented duplex

was seriously injured when she was bitten by the dog. Ibid. There, we held that

"[a]n abnormally [vicious] domestic animal is like an artificial [dangerous]

condition on the property." Id. at 121 (quoting De Robertis v. Randazzo, 94 N.J.

144, 157 (1983) (citation omitted)). We stressed the landlord's liability was

"well within traditional principles of negligence law," id. at 122, and a landlord


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                                       10
could be held liable where he permitted a tenant to harbor a vicious animal and

failed to take curative measures, id. at 121.

      In Hyun, on the other hand, we declined to impose liability on the

landlord. There, a tenant was bitten by another tenant's dog and sued the

landlord. 320 N.J. Super. at 70. We determined the landlord's liability was

based on "ordinary principles of negligence," holding "in the absence of proof

that the landlord was aware of the dog's vicious propensities, or perhaps that the

dog was inherently vicious, liability should not be imposed upon the landlord."

Id. at 72.

      Here, the record did not establish the Baitys were aware Hammond and

Rivera had a dog on the premises and that it had violent propensities. Although

plaintiff presented the Carter affidavit as evidence the Baitys knew the tan pit

bull was in the tenants' home, the judge declined to consider the affidavit

because it was provided after the close of discovery and without a certification

of due diligence, as required by Rule 4:24-1(c) and Rivers. The judge was

within her discretion to do so. Further, even if we were to give plaintiff every

favorable inference, evidence a dog is on the property does not demonstrate

awareness of its dangerous propensities. Therefore, under the existing case law,




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                                       11
the landlord had no liability for injuries caused by Hammond and Rivera's dog.

Summary judgment was correctly entered.

      Affirmed.




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                                     12
