                                NOT FOR PUBLICATION WITHOUT THE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-0707-18T4

MARLENE WITTER,

          Plaintiff-Appellant,

v.

THE LEAGUERS, INC., and
LEAGUERS HEADSTART,

          Defendants-Respondents,

and

CITY OF NEWARK,
COUNTY OF ESSEX, and
STATE OF NEW JERSEY,

     Defendants.
___________________________

                   Argued telephonically March 25, 2020 –
                   Decided June 5, 2020

                   Before Judges Koblitz, Whipple, and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Docket No. L-0074-17.
            Greg D. Shaffer argued the cause for appellant
            (Brandon J. Broderick, LLC, attorneys; Alan K. Albert,
            of counsel and on the brief).

            Paul J. Soderman argued the cause for respondents.

PER CURIAM

      Plaintiff Marlene Witter appeals from an August 10, 2018 order granting

summary judgment to defendants, The Leaguers, Inc., and Leaguers Head Start

(Leaguers); a June 22, 2018 order denying a reopening and extension of

discovery; and two September 28, 2018 orders—one denying permission to

amend her complaint to name a new defendant, and the other denying

reconsideration of the summary judgment order. We affirm.

      On January 7, 2015, plaintiff slipped and fell on the stairs while picking

up her daughter at Leaguers Head Start at its 750 Clinton Avenue location in

Newark; plaintiff's daughter was enrolled in preschool there. Leaguers is a non-

profit organization recognized by the Internal Revenue Service as a 501(c)(3)

entity formed to provide educational services. Leaguers' website 1 indicates it is


1
  Plaintiff's appendix includes a page from Leaguers' website; the rest of the
website pages are not included in either the plaintiff's or the defendants'
appendices. However, to save time and promote judicial economy, where facts
cannot be seriously disputed and are general or universally known , judicial
notice may be taken. Estate of Kotsovska v. Liebman, 43 N.J. Super. 537, 549
(App. Div. 2013) (citing State v. Silva, 394 N.J. Super. 270, 275 (App. Div.


                                                                          A-0707-18T4
                                        2
a non-profit organization that provides services for three- to five-year-old

children and their families in Newark, Irvington, Union Township, Roselle, and

Elizabeth, with a mission "to enhance the quality of life for children and families

through diverse educational and cultural programs that foster self-growth,

personal development and pride in one's community," and that they have a

strong belief in "Opportunity through Education." http://leaguers.org/history/.

      Leaguers operates Head Start Centers and provides educational, physical

and mental health, nutrition, and parenting skills classes, housing referrals,

leadership classes, and other services to community families. Its website lists

sixteen locations for Head Start preschool and Early Head Start programs .

Leaguers also offers three rooms at the 405-425 University Avenue location in

Newark that can be rented out for gatherings and events, although it notes that

"[n]o kitchen facility is available." http://leaguers.org/hall-rental-request/ .

      In her deposition, plaintiff testified that on the day of the incident, when

she turned to walk down the stairs from the second floor to the first, the stairs

were "wet, full of ice," and she fell from the top of the stairs to the landing,

sustaining injuries to her right shoulder. She eventually got up with assistance,


2007)). While not a part of the record, defendants' extensive educationally-
oriented activities and purpose can be found on their website at
http://leaguers.org/.
                                                                            A-0707-18T4
                                         3
went down the rest of the stairs from the landing, and left without saying

anything to anyone who worked at Leaguers or to the security guard, who was

sitting at the desk at the front door. A week after the incident, plaintiff returned

and asked that an incident report be prepared. An incident report form relating

to the incident was signed by Michael Travis, the security guard on duty the day

plaintiff fell, as well as by Hope DeLoach, the site supervisor.

      On January 3, 2017, plaintiff filed suit against Leaguers as well as the City

of Newark, County of Essex, and the State of New Jersey, 2 alleging that on or

about January 7, 2015, she slipped and fell while lawfully on the premises at

750 Clinton Avenue in Newark, which was owned and under the control of

defendants. Plaintiff alleged defendants "were the owners or were in control

and operation of the premises" and "[a]t the same time, the [d]efendants,

through arrangement, agreement, or acts or omission of [its] agent, servant, [or]

employee, were responsible for the construction, remodeling, maintenance,

repair, supervision or upkeep of the premises," and defendants "negligently and

carelessly allowed a dangerous and hazardous condition to exist on the property

or failed to warn of same which caused [p]laintiff to slip and fall." Plaintiff



2
  Defendants State of New Jersey and City of Newark were dismissed without
opposition.
                                                                            A-0707-18T4
                                         4
asserted she sustained serious and permanent injuries, suffered great pain,

shock, and mental anguish, was and still is incapacitated, and will be

permanently disabled and has and will continue to expend substantial sums of

money for her treatment.

      In March 2017, Leaguers filed an answer asserting the defenses and

limitations afforded by N.J.S.A. 2A:53A-6 and -7, under the Charitable

Immunity Act. Leaguers responded to Form C Interrogatories naming Janet

Ramos, Michael Travis, Hope DeLoach, and Salahuddin Raheem as persons

with knowledge of any relevant facts relating to the case; stating there were

photographs of the scene, which were attached; and indicating that, among other

law, defendants would rely on the Charitable Immunity Act, N.J.S.A. 2A:53A-

7 to -11.

      In November 2017, plaintiff asked for a sixty-day extension of the January

2, 2018 discovery end date; the new discovery end date was March 3, 2018, by

stipulation of the parties.   On February 14, 2018, mandatory, non-binding

arbitration was scheduled for April 17, 2018.

      On February 28, 2018, plaintiff noticed depositions for March 12 for

Travis, DeLoach, Ramos, and Raheem, and moved to extend discovery for sixty

days to May 2. A March 16 order extended discovery to May 2, requiring


                                                                        A-0707-18T4
                                       5
defendants' deposition be completed by March 30, plaintiff to serve her medical

and liability expert reports by April 13, defendants to serve their liability expert

reports by April 30, and any additional discovery to be completed by May 2. On

April 30, plaintiff sent defense counsel notices to take the depositions on May

11 of Travis, DeLoach, Ramos, and Raheem.

      On May 14, plaintiff deposed defendants DeLoach and Ramos. DeLoach,

the site supervisor at 750 Clinton Avenue, testified that Travis was the security

guard at the Clinton Avenue location on duty at the time of the incident in 2015 ,

but that he was employed by "[a]n outsource company." DeLoach testified that

as site supervisor, she had to know about all incidents at the site and that all

incidents would be reported to her. She stated the security guards were there to

sign people in and to tour the building to make sure everything was safe but

would not be alerted about incidents involving children. She did not know the

name of the company who employed the security guards but said human

resources would know.

      DeLoach testified that after the incident, she asked Travis to help plaintiff

get up, which he did. She stated that while Travis was no longer working there,

he did write his statement up the day of the incident and submitted it to DeLoach.

DeLoach took photos of the front of the building, the vestibule, and the landing


                                                                            A-0707-18T4
                                         6
where plaintiff stated she fell; plaintiff's counsel reviewed these photos at the

deposition.

      Janet Ramos, the Director of Human Resources, testified the signature on

the incident report was Travis', that he was the security guard at the time of the

incident, and he worked for a security company called Special OPS, hired to

provide security services inside the building. If there were an emergency issue

regarding the facility, a call would be made to the central offices and it would

be directed to defendants' director of facilities.

      When asked "[s]o you wouldn't expect the security guard to pay attention

to any safety issues with regard to the facility," she responded "[n]o." When

asked if there was a flood in the bathroom, would the security guard report it to

maintenance, she responded "I mean, I don't . . . see him trying to do . . . suc h a

job." When asked if she would expect him to report it, she answered "I mean, I

would think he would probably say something. . . ." When asked if "any issues

with regard to the safety of the front were visible, you would expect him to

report that?" she responded "[s]ure."

      However, when asked if there was a loose handrail and the security guard

was going upstairs, Ramos said,




                                                                            A-0707-18T4
                                         7
            If he was to notice something like that I would think he
            would say something to [DeLoach], but that's not his
            job to do that, though . . . .

                   ....

                  His job is not to fix it and his job is really not to
            really report it. I mean, if he sees that, you know,
            something out of the ordinary, I would think he may say
            something, but site supervisor's jobs are to do a monthly
            – you know, they do a daily check on the building so
            they have a report that they fill out.

            [(Emphasis added).]

      On May 22, 2018, an arbitration award assigned eighty percent liability to

Leaguers and twenty percent liability to plaintiff, for net damages of $16,000

for out of pocket medical expenses. On May 24, plaintiff requested a trial de

novo, which was scheduled for August 6.

      However, on June 5, plaintiff requested additional information including

the contact information for Travis or the security company who employed him.

A day later, plaintiff moved to reopen and extend discovery for sixty days

asserting the identity of Travis's employer, Special OPS, was "newly discovered

evidence reveal[ing] a new [d]efendant who is potentially liable for plaintiff's

injuries." The court denied reopening and extension of discovery because "no

exceptional circumstances are demonstrated," and on July 5 plaintiff moved for

reconsideration.

                                                                          A-0707-18T4
                                        8
      On July 6, 2018, Leaguers moved for summary judgment asserting

plaintiff's negligence claim was barred by the Charitable Immunity Act. On

August 1, 2018, plaintiff moved to amend her complaint to add Special OPS

Security Services as a defendant.

      After hearing argument, the court granted summary judgment for

Leaguers, finding it is a nonprofit entity organized for the very educational

purposes that occasioned plaintiff's presence on the property, and that even if

plaintiff had been able to present a prima facie case of liability as to negligence,

she could not recover based on her status as a beneficiary pursuant to the

Charitable Immunity Act. The court rejected plaintiff's argument that a genuine

issue of fact existed as to whether defendants fit the definition of a charitable

organization for the purposes of the Charitable Immunity Act.

      Plaintiff moved for reconsideration, arguing Leaguers' website advertised

space for rent "in a manner akin to a catering hall." Plaintiff argued that while

Leaguers were recognized as a valid 501(c)(3) entity, they "may have lost that

status due to their non-educational activity of leasing space out to the public."

      On September 28, 2018, the trial court denied plaintiff's motion to file an

amended complaint to add defendant Special OPS Security Services, as the

"[c]omplaint has been dismissed by way of summary judgment in favor of


                                                                            A-0707-18T4
                                         9
[Leaguers] so no action currently pending no proposed pleading attached.

Amendment futile as no showing of new party involvement." The same day, the

court also denied plaintiff's motion for reconsideration.

      This appeal followed.

                                        I.

      On appeal, plaintiff argues the court erred in denying its motion to amend

the complaint given the liberal standard for amending pleadings under Kernan

v. One Washington Park Urban Renewal Associates, 154 N.J. 437 (1998), and

Notte v. Merchants Mutual Insurance Co., 185 N.J. 490 (2006).

      Our review of a motion to amend a pleading "is limited," as "[t]he

determination of a motion to amend a pleading is generally left to the sound

discretion of the trial court." Franklin Med. Assocs. v. Newark Pub. Schools,

362 N.J. Super. 494, 506 (App. Div. 2003) (citations omitted). Therefore, the

trial court's "exercise of discretion will not be disturbed on appeal, unless it

constitutes a 'clear abuse of discretion.'" Ibid. (quoting Salitan v. Magnus, 28

N.J. 20, 26 (1958)).

      Although Rule 4:9-1 requires that motions for leave to amend should be

liberally granted at any stage of the proceedings, "the granting of a motion to

file an amended complaint always rests in the court's sound discretion" in light


                                                                        A-0707-18T4
                                       10
of the facts that exist at the time each motion is made. Kernan, 154 N.J. at 456-

57 (citations omitted). "Accordingly, the discretion to deny a motion to amend

is not mistakenly exercised when it is clear that the amendment is so meritless

that a motion to dismiss under R[ule] 4:6-2 would have to be granted, the so-

called futility prong of the analysis." Pressler & Verniero, Current N.J. Court

Rules, cmt. 2.2.1 on R. 4:9-1 (2019). When considering "the factual situation

existing at the time each motion is made," a court is "free to refuse leave to

amend when the newly asserted claim is not sustainable as a matter of law. In

other words, there is no point to permitting the filing of an amended pleading

when a subsequent motion to dismiss must be granted." Notte, 185 N.J. at 501-

02 (citation omitted).

      Plaintiff argues Special OPS employed Travis, a security guard, and that

a security guard "may very well share in responsibility for ensuring the safety

and security of the premises, such as reporting or keeping a lookout for water

on the floor." Although plaintiff asserts that Ramos testified the security guard

would be responsible for keeping an eye out on the premises for dangers on the

floor, the record reflects otherwise.

      On the contrary, Ramos, the director of human resources for Leaguers,

testified Travis did not have a duty to report or correct issues regarding the


                                                                         A-0707-18T4
                                        11
maintenance or condition of the building, as that was not within the scope of his

work. Therefore, any claim against Special OPS would not survive a motion to

dismiss and would be futile.

      Accordingly, based on our review of the record, we conclude the trial

court did not abuse its discretion in denying plaintiff's motion to amend the

complaint to add Special OPS as a party.

                                       II.

      We also reject plaintiff's argument the court erred in refusing to extend

discovery. "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." Rivers v. LSC P'ship, 378 N.J.

Super. 68, 80 (App. Div. 2005).

      Under Rule 4:24-1(c), "[n]o extension of the discovery period may be

permitted after an arbitration or trial date is fixed, unless exceptional

circumstances are shown."         This "heightened standard of 'exceptional

circumstances'" for any requests for discovery extensions after an arbitration or

trial date is set is due to the "liberalized time for discovery afforded by the

tracking system" that resulted from 2000 rule amendments known as "Best




                                                                          A-0707-18T4
                                       12
Practices." Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 396-97 (2005)

(quoting O'Donnell v. Ahmed, 363 N.J. Super. 44, 50 (Law Div. 2003)).

      Because plaintiff moved to reopen and extend discovery after arbitration

and after the trial date was set, she was required to show "exceptional

circumstances."    To extend discovery for "exceptional circumstances," the

moving party must show:

            (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 presented were clearly beyond the
            control of the attorney and litigant seeking the
            extension of time.

            [Rivers, 378 N.J. Super. at 79 (citing Vitti v. Brown,
            359 N.J. Super. 40, 51 (Law Div. 2003)).]

Where counsel requests additional time for discovery, they "should establish

that he or she did make effective use of the time permitted under the rules." Ibid.

      "A failure to pursue discovery promptly, within the time permitted, would

normally be fatal to such a request." Ibid. (quoting Vitti, 359 N.J. Super. at 51).

Where the "'delay rests squarely on plaintiff's counsel's failure to . . . pursue

discovery in a timely manner,' and the Vitti factors are not present, there are no



                                                                           A-0707-18T4
                                       13
exceptional circumstances to warrant an extension." Ibid. (quoting Huszar v.

Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 473-74 (App. Div. 2005)).

      Plaintiff's counsel argues they showed exceptional circumstances in that

their attempts to depose Travis, DeLoach, Ramos, and Raheem were

consistently thwarted by defense counsel. They assert that when defendants'

representatives were finally produced, it was only then that plaintiff "further

learned [d]efendants would expect [] Travis to immediately report any dangers

such as the one that [p]laintiff alleges caused her injuries," and that this was a

"newly discovered" piece of evidence revealing a new defendant who was

potentially liable.

      The record does not support plaintiff's counsel's arguments that deposing

defendants' representatives so late was out of their control. There is nothing in

the record to reflect that plaintiff exercised diligence in attempting to depose

defendants in a more timely manner; although plaintiff asserts defense counsel

continually cancelled depositions, there is nothing to show plaintiff exercised

"diligence," such as using subpoenas under Rule 4:14-7, or even letters to

defense counsel attempting to schedule and reschedule depositions.

      Therefore, the trial court did not abuse its discretion in denying plaintiff's

motion to reopen and extend discovery after arbitration had taken place, the trial


                                                                            A-0707-18T4
                                       14
date was set, and with no showing by plaintiff's counsel of diligence or events

clearly outside of their control that constituted exceptional circumstances.

                                       III.

      We also reject plaintiff's argument the judge erred granting summary

judgment to Leaguers. We review a grant of summary judgment de novo,

"applying the same standard as the trial court." F.K. v. Integrity House, Inc.,

460 N.J. Super. 105, 114 (App. Div. 2019). Under Rule 4:46-2(c), summary

judgment should be granted when "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." We review

the trial court's determination of the applicability of charitable immunity de

novo, because an organization's right to immunity is a question of law. F.K.,

460 N.J. Super. at 114 (quoting Green v. Monmouth Univ., 237 N.J. 516, 529

(App. Div. 2019)).

      Under the Charitable Immunity Act,

            [n]o nonprofit corporation, society or association
            organized exclusively for religious, charitable, or
            educational purposes or its trustees, directors, officers,
            employees, agents, servants or volunteers shall . . . be
            liable to respond in damages to any person who shall
            suffer damage from the negligence of any agent or

                                                                          A-0707-18T4
                                       15
            servant of such corporation, society or association,
            where such person is a beneficiary, to whatever degree,
            of the works of such nonprofit corporation, society or
            association . . . .

            [N.J.S.A. 2A:53A-7(a) (emphasis added.).]

      Charitable immunity is an affirmative defense, and as such, defendants

bear the burden of showing they are entitled to its protection. F.K., 460 N.J.

Super. at 116. A defendant seeking charitable immunity must show that it "(1)

was formed for nonprofit purposes; (2) is organized exclusively for religious,

charitable or educational purposes; and (3) was promoting such objectives and

purposes at the time of the injury to plaintiff who was then a beneficiary of the

charitable works." Ibid. (quoting Tonelli v. Bd. of Educ. of Wyckoff, 185 N.J.

438, 444-45 (2005)). Whether a nonprofit entity "actually conducts its affairs

consistent with its stated purpose often requires a fact-sensitive inquiry." Ibid.

(quoting Kuchera v. Jersey Shore Family Health Ctr., 221 N.J. 239, 252 (2015)).

An entity must be examined "to discover its aims, its origins, and its method of

operation in order to determine whether its dominant motive is charity or some

other form of enterprise." Ibid. (quoting Parker v. St. Stephen's Urban Dev.

Corp., Inc., 243 N.J. Super. 317, 325 (App. Div. 1990)).

      Further financial analysis is required for entities purporting to be

organized exclusively for "charitable" purposes, but because the terms

                                                                          A-0707-18T4
                                       16
"educational" and "religious" are limited and commonly understood

descriptions, "[e]ntities that can prove they are organized exclusively for

educational or religious purposes automatically satisfy the second prong of the

charitable immunity standard," and no financial analysis is necessary. Id. at

116-17 (citations omitted).

      As to the third prong, where the injured party is a direct recipient of the

charity's good works "or accompanies a beneficiary to the event," the defense is

available. Kain v. Gloucester City, 436 N.J. Super. 466, 480-81 (App. Div.

2014) (quoting Roberts v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J.

Super. 189, 195-96 (App. Div. 2004)). Where a parent is on the premises of a

non-profit educational or religious organization for the sole purpose of picking

her child up from school, she is a "beneficiary, to whatever degree" of its works

at the time. Gray v. St. Cecilia's Sch., 217 N.J. Super. 492, 493-94 (App. Div.

1987).

      Plaintiff concedes, and it is not in dispute, that Leaguers is a 501(c)(3)

organization formed for the purposes of providing education to the community,

and that plaintiff was on the premises to pick up her child from school. Plaintiff

argues Leaguers' rental of rooms for events renders it "akin to a hotel or banquet




                                                                          A-0707-18T4
                                       17
hall," not "exclusively" organized for educational purposes, and that they

therefore do not qualify for immunity under the statute. We reject this argument.

      "Activities designed to raise monies in support of a charitable

organization's core purposes generally contribute to those purposes and do not

change the 'essence of the entity itself.'" Bieker v. Cmty. House of Moorestown,

169 N.J. 167, 170-71 (2001) (quoting Snyder v. Am. Ass'n of Blood Banks, 144

N.J. 269, 305 (1996)). An entity will only lose its immunity under the statute

where its non-charitable activities become the "dominant motive" of the

organization so that it becomes "some other form of enterprise." Ibid. (quoting

Parker, 243 N.J. Super. at 325).

      In Bieker, the New Jersey Supreme Court noted, as to a charitable

organization earning income from "some limited noncharitable activity," such

as renting facilities to for-profit entities, that "[g]enerally those activities are an

adjunct to the organization's core purpose if only because they provide a source

of income, in addition to charitable donations and trust funds, that enables the

organization to carry out that purpose." Id. at 178-79.

      The Court clarified in Ryan v. Holy Trinity Evangelical Lutheran Church,

175 N.J. 333 (2003), that entities that can prove they are organized exclusively

for educational or religious purposes automatically satisfy the second prong of


                                                                               A-0707-18T4
                                         18
the charitable immunity shelter, and there is no need to engage in further factual

analysis to determine whether their dominant motive is charitable, as in Bieker.

Ryan, 175 N.J. at 345-46.

      Although plaintiff argues that a jury must decide whether the non-

educational activity of "running a space-leasing business" has become Leaguers'

dominant motive, thereby stripping them of their immunity, Leaguers only needs

to show that they are organized exclusively for educational purposes to satisfy

the second prong, under Ryan.

      Here, Leaguers' website reflects they have sixteen locations for Head Start

preschool and Early Headstart programs, offer a plethora of training classes,

and, in addition to these services, offer three rooms at their headquarters

building as rental spaces for "[d]ances [and] [p]arties, [r]eunions, [s]howers,

[b]irthdays, [w]eddings, [t]raining, [b]anquets, [s]eminars, [l]uncheons,

[r]eceptions, [c]onferences, [a]nniversaries, [b]usiness [m]eetings, [and]

[c]hurch [s]ervices."     Leaguers' website makes clear the focus of the

organization is exclusively educational, and no reasonable person would think

that defendants' primary function is running a space-leasing business.




                                                                          A-0707-18T4
                                       19
      Based on our review of the record, the trial court did not err in granting

Leaguers summary judgment based on their immunity under N.J.S.A. 2A:53A-

7 to -11.

                                       IV.

      Nor did the court err denying reconsideration. Reconsideration "is 'a

matter within the sound discretion of the [c]ourt, to be exercised in the interest

of justice'" and "is not appropriate merely because a litigant is dissatisfied with

a decision of the court or wishes to reargue a motion." Palombi v. Palombi, 414

N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J.

Super. 392, 401 (Ch. Div. 1990)). Rather, it should be used

            only for those cases which fall into that narrow corridor
            in which either (1) the [c]ourt has expressed its decision
            based upon a palpably incorrect or irrational basis, or
            (2) it is obvious that the [c]ourt either did not consider,
            or failed to appreciate the significance of probative,
            competent evidence.

            [Ibid. (quoting D'Atria, 242 N.J. Super. at 401).]

      Defendant argues the trial court overlooked commercial aspects of

defendants' business; that the telephonic audibility issues at the hearing were

new evidence; and the trial court should have vacated summary judgment on

those grounds. Based on our review of the record we conclude these arguments



                                                                           A-0707-18T4
                                       20
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

      Affirmed.




                                                                         A-0707-18T4
                                      21
