                        NOT FOR PUBLICATION WITHOUT THE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-3852-15T3

WILLIAM BLACK, as
Administrator Ad Prosequendum
for the heirs at law of THOMAS
HAMILTON BLACK and as
Administrator of the Estate
of THOMAS HAMILTON BLACK,

        Plaintiff-Appellant,

v.

FRANK MELCHIORRE,

        Defendant,

and

GOVERNOR LIVINGSTON REGIONAL HIGH
SCHOOL, SCOTT MCKINNEY and
MARYANN MCADAM,

        Defendants-Respondents.

              Argued January 23, 2018 – Decided June 11, 2018

              Before Judges Reisner, Gilson and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. L-4293-
              12.

              Joseph L. Garrubbo argued the cause for
              appellant (Garrubbo & Capece, PC, attorneys;
              Joseph L. Garrubbo, on the brief).
           Paul Daly argued the cause for respondents
           (Hardin, Kundla, McKeon & Poletto, PA,
           attorneys; Mark S. Kundla, of counsel; Paul
           Daly and Jennifer Suh, on the brief).

PER CURIAM

     Plaintiff William Black appeals from a February 3, 2016 order,

denying leave to amend his interrogatories to add additional fact

witnesses; a February 3, 2016 order granting summary judgment to

defendants Berkeley Heights Board of Education (Board),1 high

school principal Scott McKinney, and assistant principal Mary Ann

McAdam; and an April 7, 2016 order denying plaintiff's motion for

reconsideration.

     Plaintiff claimed that his late son's high school failed to

properly   investigate   a   teacher   who   was   providing   students,

including plaintiff's son, with drugs at the teacher's home.

Plaintiff contended that his son's death from a drug overdose –

which occurred approximately a year after the son's high school

graduation – was caused by the school's negligent conduct.            The

trial court granted summary judgment in favor of the school




1
   The complaint mistakenly named a high school in the school
district; however, the Board was the proper party defendant.



                                  2                              A-3852-15T3
defendants due to the lack of evidence that the school's negligence

was a proximate cause of the son's death.2

     Plaintiff raises the following issues on this appeal:

          I. THE COURT ERRED IN IMPOSING THE "SINS" OF
          THE PLAINTIFF'S PREVIOUS ATTORNEY ON THE
          BLAMELESS PLAINTIFF IN NOT ALLOWING THE LATE
          AMENDMENT TO ANSWERS TO INTERROGATORIES IN
          ORDER TO NAME FACT WITNESS[ES] BEAUMONT-BELT,
          CAPONEGRO, BREANNE AND KATHLEEN BLACK AND
          KENNETH BURKETT.

          II. THE COURT ERRED IN MAKING A DETERMINATION
          THAT THE TESTIMONY OF JOHN BEAUMONT-BELT AND
          GREGORY CAPONEGRO RECOUNTING STATEMENTS MADE
          TO THEM BY THE DECEDENT WOULD NOT BE
          ADMISSIBLE WITHOUT CONDUCTING A HEARING UNDER
          [] N.J.R.E. 104.

          III. THE COURT ERRED IN GRANTING SUMMARY
          JUDGMENT TO THE DEFENDANTS BY FAILING TO GIVE
          THE PLAINTIFF THE BENEFIT OF ALL REASONABLE
          INFERENCES WHICH COULD BE DRAWN FROM THE
          AVAILABLE EVIDENCE AND BECAUSE THERE WERE
          GENUINE ISSUES OF MATERIAL FACT WHICH REQUIRED
          A JURY DETERMINATION.

      Our review of a summary judgment order is de novo, using the

Brill3 standard, the same test employed by the trial court.       See

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

Pittsburgh, 224 N.J. 189, 199 (2016).   Accordingly, we determine

whether there are material facts in dispute and, if not, whether


2
  Plaintiff reached a settlement with the teacher, defendant Frank
Melchiorre.
3
   Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995).

                                 3                           A-3852-15T3
the undisputed facts, viewed most favorably to plaintiff would

nonetheless entitle defendants to judgment as a matter of law.

See Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014).

We review a decision to extend discovery deadlines for abuse of

discretion.     See Rivers v. LSC P'ship, 378 N.J. Super. 68, 80

(App. Div. 2005).      We apply the same standard to a trial judge's

decision to grant or deny a reconsideration motion.                 See Cummings

v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

    Because we agree with the trial court that there were no

material     facts   in     dispute   and     the     undisputed    facts       were

insufficient to establish proximate cause, we affirm the order

granting summary judgment.        We find no abuse of the trial court's

discretion in denying plaintiff's untimely motion to amend the

interrogatories,      and    in   denying     plaintiff's     reconsideration

motion.    Accordingly, we affirm the remaining orders as well.

                                      I

    The following facts are drawn from the summary judgment

record, including defendants' statement of material facts and

plaintiff's responses.         The record includes the son's testimony

at a deposition, taken in connection with unrelated litigation

concerning    his    brother's    death.4       The    son   also    gave     sworn


4
   The brother died in an alcohol-related car accident when the
son was fifteen.

                                          4                                 A-3852-15T3
statements   to   the   police,   after   the    teacher   was   arrested.

According to the son's sworn testimony and statement to the police,

he had been using marijuana since 2008, when he was fifteen years

old. The son smoked marijuana at the teacher's apartment beginning

in December 2009, when he was sixteen.          The son denied using any

other drug, or alcohol, at the teacher's home.             He also denied

that the teacher supplied any of the students with anything but

marijuana and alcohol.

     In January 2010, during a contentious disciplinary meeting

about his own son, a parent told school officials that a certain

teacher was smoking marijuana with students.         There is no dispute

that the school safety police officer was present during this

meeting.   A school official contacted the teacher, a well-regarded

science educator, who denied the allegation.          The school took no

further action to investigate the claim.

     However, the police conducted an extensive investigation of

the teacher, whom they suspected of using drugs with students.

The police were unable to find any evidence against him until

November 2010, when fortuitously, the teacher had an unexplained

absence from work and the school asked the police to visit his

house and check on his welfare.         During that visit, the police

found marijuana and drug paraphernalia.         The teacher was arrested,

and suspended from his teaching position.           There is no evidence

                                    5                              A-3852-15T3
that the son went to the teacher's house or used marijuana with

him after the November 2010 arrest.

     According    to    the   son's   deposition   testimony,   he   stopped

smoking marijuana in March 2011.           The son graduated from high

school in June 2011 and began attending college in Florida the

following fall.        After his first year of college, the son came

home to his father's house in New Jersey.

     On June 3, 2012, the son and two friends went to North

Plainfield and bought MDMA (also known as ecstasy or "molly").

On June 4, 2012, the son was found unconscious in his bedroom from

a drug overdose.       He died in the hospital on June 6, 2012.           The

police found assorted drug-related paraphernalia in his bedroom,

including packaging associated with heroin.           The cause of death

was a morphine-related overdose.

     In a lengthy oral opinion issued on February 3, 2016, Judge

Camille M. Kenny concluded that the school authorities had a duty

to investigate the allegations that the teacher was providing

drugs to students.       She also reasoned that, viewing the evidence

in the light most favorable to plaintiff, a jury could find that

the school authorities breached that duty.            However, the judge

found that the admissible evidence could not establish that the

son's use of marijuana at the teacher's home was a proximate cause

of the son's death from a morphine-related overdose, eighteen

                                       6                             A-3852-15T3
months after his last visit to the teacher's apartment.                   The judge

found       that   plaintiff's      causation    expert    relied    on    witness

statements that the judge had already excluded as untimely.                      She

also    noted      that    some   of   those   witness    statements      contained

inadmissible hearsay.5

       In    addition,      the   judge    reasoned   that,   in   light    of   the

extensive and unsuccessful police investigation of the teacher,

there was no evidence that, if the Board had conducted its own

investigation, the Board "would have found enough [evidence] to

do something about it" before the teacher was arrested in November

2010.

                                          II

       After reviewing the summary judgment record de novo, we find

no basis to disturb Judge Kenny's well-reasoned decision granting

summary judgment.          We affirm substantially for the reasons stated

in her opinion.           The summary judgment evidence could not support

a finding that the son's use of marijuana at the teacher's home

was a proximate cause of his morphine-related overdose more than

a year later.


5
   In those statements, the son's former college roommates, Mr.
Caponegro and Mr. Beaumont-Belt, said that while the son was in
college, he told them that cocaine and other hard drugs were
available at the teacher's home. In addition to being hearsay,
those statements contradicted the son's earlier sworn testimony
that he only saw alcohol and marijuana at the teacher's home.

                                           7                                A-3852-15T3
       In addition, we agree that there was no evidence that the

school's failure to conduct a more complete investigation was a

proximate cause of the son's death.   The teacher's activities were

not conducted on school premises or even in the same town as the

school, but rather at the teacher's apartment, located in another

town.     The police conducted an extensive investigation of the

teacher.    The police did not catch the teacher until they made a

community caretaking visit to his home in November 2010.       There

is no evidence on which to conclude that, if school officials had

conducted a separate investigation, they would have discovered

evidence of the teacher's misconduct any sooner than the police

did.

       Nor can we find any abuse of discretion in the judge's

decision to bar plaintiff's very belated attempt to amend his

interrogatories to add new fact witnesses.   See Bender v. Adelson,

187 N.J. 411, 428-29 (2006); Rivers, 378 N.J. Super. at 80-81.      As

plaintiff's counsel conceded at oral argument on the discovery

motion, plaintiff's case on causation had a significant gap: there

was no evidence linking the son's use of heroin and MDMA in June

2012 with his earlier visits to the teacher's home during high

school.    Nor was there evidence of his continuing drug use between

March 2011 and June 2012.



                                  8                          A-3852-15T3
     After at least seven discovery extensions, and only a few

weeks before the scheduled trial date, plaintiff sought to plug

that gap by naming additional fact witnesses.   Judge Kenny denied

the motion, noting that there were no extraordinary circumstances

warranting relief from the most recent discovery deadline, which

had long since expired, and granting relief would prejudice the

defendants.    She reasoned that plaintiff should have known about

the proposed witnesses, who were his son's friends and family

members, and his attorney could have included their names in

discovery much earlier.    We find no error in that reasoning, and

no abuse of discretion in the judge's decision.

     In denying plaintiff's reconsideration motion, the judge also

noted that some of the proposed witness statements were hearsay.

We agree.     Portions of the statements — which recounted alleged

comments by the son about seeing heroin at the teacher's apartment

– constituted hearsay, because plaintiff intended to offer the

son's remarks for their truth.   See N.J.R.E. 801(c); N.J.R.E. 802.

The hearsay was also untrustworthy, and therefore not admissible

as the statement of a decedent under N.J.R.E. 804(b)(6), because




                                 9                          A-3852-15T3
the remarks contradicted the son's earlier sworn testimony about

what happened at the teacher's home.6

     Affirmed.




6
  In light of our disposition of this appeal, we need not address
defendants' arguments premised on the Drug Dealer Liability Act,
N.J.S.A. 2C:35B-1 to -17.

                               10                         A-3852-15T3
