                                NOT FOR PUBLICATION WITHOUT THE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-2648-17T1

WINBERRY REALTY
PARTNERSHIP, JOHN
WINBERRY, MARY
LOURDES WINBERRY,
CELESTE WINBERRY,
and GREGORY WINBERRY,

           Plaintiffs-Appellants,

v.

BOROUGH OF RUTHERFORD,
and CARYN MILLER, in her
official and individual capacities,

           Defendants-Respondents,

and

STEVEN KRISCH, in his
individual capacity,

           Defendant.


                    Argued March 6, 2019 – Decided May 31, 2019

                    Before Judges Alvarez and Nugent.
             On appeal from Superior Court of New Jersey, Law
             Division, Bergen County, Docket No. L-7126-10.

             Bruce D. Greenberg argued the cause for appellants
             (Lite DePalma Greenberg, LLC, attorneys; Bruce D.
             Greenberg, on the briefs).

             Kathy A. Kennedy argued the cause for respondents
             (Hanrahan Pack, LLC, attorneys; Thomas B. Hanrahan,
             of counsel and on the brief; Kathy A. Kennedy, on the
             brief).

PER CURIAM

       Plaintiffs Winberry Realty Partnership (the Partnership), John Winberry

(Winberry), Mary Lourdes Winberry, Celeste Winberry, and Gregory Winberry,

on July 22, 2010, filed a complaint against defendants, the Borough of

Rutherford and Caryn Miller, in her official and individual capacity, 1 alleging

six different causes of action for damages arising from Miller's refusal to

calculate the payoff figure in satisfaction of a tax sale certificate and foreclosure

judgment on the Partnership's property. It is difficult to understand how this has

occurred, but in the intervening nine years the matter has never even been listed

for trial. The complaint was dismissed once with prejudice for the Partnership's

failure to comply with discovery requests—an order we reversed—and summary

judgment was then granted to defendants—an order also reversed on appeal. We


1
    Steven Krisch was dismissed from the case in 2011.
                                                                             A-2648-17T1
                                         2
now again reverse the trial court's grant of summary judgment. The judge

seemingly applied a mistaken notion of the conduct necessary in order to strip

qualified immunity from a public official.

      The reader is referred to the two prior unpublished opinions for a more

detailed description of events leading to this decision. Winberry Realty P'ship

v. Borough of Rutherford, No. A-3846-13 (App. Div. May 4, 2016) (hereafter

Winberry II); Winberry Realty P'ship v. Borough of Rutherford, No. A-5760-11

(App. Div. Aug. 9, 2013) (hereafter Winberry I).

      Suffice it to say for our purposes that defendant's second application for

summary judgment, which resulted in this appeal, was made on virtually the

same basis as the first, and granted on virtually the same basis as the first. This

despite the fact that post-discovery, it is abundantly clear that there are disputes

of material fact that mandate the matter be decided by a jury.

      On July 23, 2008, Winberry called Miller to obtain the payoff amount, so

the Partnership could redeem the tax sale certificate and vacate the judgment on

its property. July 23 was the day before final judgment would enter in the tax

sale foreclosure matter.

      When deposed, Winberry testified that when he called the Borough Tax

Office, Miller told him she could not provide the payoff figure because she did


                                                                            A-2648-17T1
                                         3
not have the time that day. Winberry asked for the per diem rate so that he could

calculate the amount himself—but Miller said she had no time for that. After

Winberry offered to pay any amount in order to redeem, Miller asked him why

the outstanding amount had not been paid earlier, before telling him that she did

not have the authority to accept the money regardless because the deadline had

already passed.

      In Miller's interrogatory answers, she said her recollection was limited,

but that she could not help Winberry because the figures were unavailable. She

denied telling Winberry that he could not pay an amount in excess of the lien,

or hearing him say that he could pay the entire amount owed. According to her

"limited recollection," she could not help Winberry redeem the property because

she did not have the figures available: "[Winberry] had contacted my office

seeking information concerning the redemption of the [p]roperty.           I had

informed [Winberry] that I was unable to provide him with the information he

sought at that time. I do not recall anything further."

      At deposition, while reiterating that she could not remember the relevant

events, Miller explained that she had developed her own policy for the

redemption of property by delinquent tax owners.          The policy required the

applicant to submit the request in writing, allowing Miller time to prepare the


                                                                          A-2648-17T1
                                        4
figures. She would then contact the lienholder to ensure that all parties were in

agreement. Miller could not remember if she had informed Winberry of this

policy during their phone conversation. She also admitted that the software in

her office provided payoff information within minutes.

      Nearly a year later, once the Partnership retained counsel, it successfully

applied to vacate the final foreclosure judgment and redeemed the tax sale

certificate. This complaint followed.

      In rendering his decision granting defendants' summary judgment, the

judge said:

              Miller performed her duties as the Borough's Tax
              Collector in an objectively reasonable manner and
              therefore    enjoy[ed] qualified       immunity.      No
              information supplied by the [p]laintiffs since this
              matter has been remanded has shown that . . . Miller
              acted in an unreasonable manner. . . . There is no
              evidence that the denial was a malicious, intentional act
              so as to pierce the qualified immunity . . . .

              This court is also unconvinced that the existence of an
              informal policy to check with the lienholder's attorney
              or representative before the generation of a payoff
              figure rises to the level of an unreasonable, intentional,
              or malicious action required to pierce immunity, let
              alone a Borough policy which has systematically
              resulted in the deprivation of civil rights.

                    ....



                                                                           A-2648-17T1
                                          5
            In sum, the [p]laintiffs have failed, despite their
      opportunity to conduct additional discovery for over a
      year, to show any facts which would abrogate the
      immunity generally enjoyed by the [d]efendants in this
      case, and would thus create a genuine issue of material
      fact. Thus, the court must grant the [d]efendants'
      motion for summary judgment and deny the [p]laintiffs'
      cross-motion.

On appeal, the Partnership raises the following points:

      POINT I
      THE LAW DIVISION WRONGLY DISREGARDED
      THIS COURT’S PREVIOUS OPINION HOLDING
      THAT GENUINE ISSUES OF MATERIAL FACT
      PRECLUDED SUMMARY JUDGMENT BASED ON
      QUALIFIED IMMUNITY.

      POINT II
      EVEN IF THIS COURT HAD NOT ALREADY
      RULED THAT MR. WINBERRY'S TESTIMONY BY
      ITSELF CREATED GENUINE ISSUES OF
      MATERIAL FACT, THE RECORD ON REMAND
      ESTABLISHED THAT THERE WERE SUCH
      GENUINE   ISSUES,  WHICH     PRECLUDED
      SUMMARY JUDGMENT.

            A. The Law Division Erred in
            its Treatment of the Facts.

            B. The Law Division Erred in
            [i]ts Application of the Law.

      POINT III
      THE SUMMARY JUDGMENT IN FAVOR OF THE
      BOROUGH SHOULD BE REVERSED, BECAUSE
      THE TAX COLLECTOR'S ACTIONS AGAINST
      PLAINTIFFS EMBODIED A POLICY OF THE

                                                                  A-2648-17T1
                                 6
              BOROUGH FOR WHICH THE BOROUGH IS
              LIABLE UNDER THE FEDERAL AND NEW
              JERSEY CIVIL RIGHTS ACTS.

              POINT IV
              THE LAW DIVISION ERRED IN FAILING TO
              GRANT PLAINTIFFS' CROSS-MOTION FOR
              SUMMARY JUDGMENT ON LIABILITY.

              POINT V
              THE LAW DIVISION ERRED IN FAILING TO
              GRANT PLAINTIFFS' MOTION TO COMPEL
              DISCOVERY.

                                       I.

      The judge's factual and legal determination, based on competing answers

in discovery, that Miller was immune because she acted reasonably and without

malice had no foundation in the law. Furthermore, he did not view the evidence

in favor of the non-moving party, as he was required to do on a motion for

summary judgment. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995).

      "Qualified immunity is a doctrine that shields government officials from

a suit for civil damages when 'their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.'" Gormley v. Wood-El, 218 N.J. 72, 113 (2014) (emphasis added)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, qualified


                                                                         A-2648-17T1
                                       7
immunity may shield an officer from liability if the officer "reasonably believes

that his or her conduct complies with the law." Pearson v. Callahan, 555 U.S.

223, 244 (2009).

      The doctrine's applicability may also depend on the distinction bet ween a

public official's discretionary and ministerial acts. Harlow, 457 U.S. at 816. An

act is considered ministerial if it is performed "to the mandate of legal authority,

without regard to or the exercise of . . . [discretion] upon the propriety of the act

being done." Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485, 502

(App. Div. 2013) (quoting Morey v. Palmer, 232 N.J. Super. 144, 151 (App.

Div. 1989)).

      "Whether an official is covered by qualified immunity is a matter of law

to be decided by a court, 'preferably on a properly supported motion for

summary judgment or dismissal.'" Gormley, 218 N.J. at 113 (quoting Wildoner

v. Borough of Ramsey, 162 N.J. 375, 387 (2000)). Moreover, there is no

presumption of qualified immunity; rather, the immunity is considered "an

affirmative defense that the defendant must establish." Schneider v. Simonini,

163 N.J. 336, 354 (2000).

      To begin, Miller's informal policy was objectively unreasonable. It was

her statutory, ministerial obligation to provide the information Winberry


                                                                             A-2648-17T1
                                         8
requested without delay or consultation with the purchasers of the tax sale

certificate. Certainly, the statute states that a request for redemption calculation

be made in writing. See N.J.S.A. 54:5-54. But Miller never informed Winberry

that he needed to submit his request in writing, nor was that the reason she

denied his request. She denied his request because she was implementing a

policy that she developed and instituted on her own, without statutory authority

to do so. According to Winberry, she responded to his inquiry by telling him

she did not have the time to help, and she refused to accept any sum of money

for redemption.

      Miller's "discretionary policy" thus ran afoul of the Partnership's right to

redeem its property pursuant to N.J.S.A. 54:5-54, not to mention the court order

in the tax foreclosure matter. Rather than assisting Winberry, she put him off

without providing him with the information it was her job to provide.

      As we said in our prior decision reversing summary judgment in this

matter, "[i]f, as Winberry asserts, Miller refused to timely redeem the tax sale

certificate — not during the specific phone call, but at all — notwithstanding

Winberry's established right to do so, then the doctrine of qualified immunity

would not be available to her." Winberry II, slip op. at 14. To have refused

Winberry's request when her computer could produce the requested figure


                                                                            A-2648-17T1
                                         9
within minutes was patently and objectively unreasonable. See Pearson, 555

U.S. at 244.

      Furthermore, once the Partnership elected to exercise the legal right to

redemption, any obstruction created by a public official's failure to fulfill her

ministerial duties was inherently unreasonable. The issue of whether qualified

immunity exists is ordinarily best reserved for summary judgment. In this case,

however, the disputed material facts raise questions of who to believe and what

to believe, best left to a factfinder. See Gormley, 218 N.J. at 113.

      None of the exceptions to the doctrine of qualified immunity applied here.

As a tax collector charged with knowing the law and fulfilling her ministerial

duties, Miller should have known, assuming Winberry's facts are considered to

be true, that her conduct violated the Partnership's rights.

      Defendants argue that Miller's refusal to assist was protected by qualified

immunity in part because it was discretionary conduct.           This argument is

incorrect.

      An act is considered ministerial if it is performed "to the mandate of legal

authority, without regard to or the exercise of . . . [discretion] upon the propriety

of the act being done." Henebema, 430 N.J. Super. at 502 (quoting Morey, 232

N.J. Super. at 151). Although Miller would have a general claim for immunity


                                                                             A-2648-17T1
                                        10
if her action had truly been discretionary, her refusal to permit Winberry to

redeem conflicted with her ministerial obligations, which she chose to disregard

in favor of her informal policy. Winberry was legally entitled to an answer

within a reasonable time. Thus, her decision to disregard the law was not

discretionary.

                                       II.

      The Partnership next contends that the Borough is liable through the

actions and policies of Miller. More specifically, because Miller's informal

policy of contacting the lienholder prior to providing a redemption figure

violated the Tax Sale Law and the Partnership's rights under 42 U.S.C. § 1983

and N.J.S.A. 10:6-2, the Borough should also be liable. A government entity,

however, cannot be held liable for the actions of its employees purely under the

theory of respondeat superior. Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S.

658, 694 (1978); Bayer v. Twp. of Union, 414 N.J. Super. 238, 270 (App. Div.

2010).

      Two Civil Rights Acts are pertinent to this appeal. First, "[g]enerally

speaking, [42 U.S.C. § 1983] provides a cause of action in state or federal courts

to redress federal constitutional and statutory violations by state officials."

GMC v. City of Linden, 143 N.J. 336, 341 (1996). Thus, in order to allege a


                                                                          A-2648-17T1
                                       11
claim under to 42 U.S.C. § 1983, a plaintiff must show "a violation of a right

secured by the Constitution or laws of the United States committed by a person

acting under color of state law." Bernstein v. State, 411 N.J. Super. 316, 335

(App. Div. 2010) (citing Kollar v. Lozier, 286 N.J. Super. 462, 473 (App. Div.

1996)).

      A state official acting within an official capacity "is immune from § 1983

damages-liability," as the official is not considered a "person" under the statute.

Id. at 336 (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)).

A local governmental entity, on the other hand, is deemed a person under the

statute if the alleged unconstitutional action was implemented, executed, or

adopted by its officers. Monell, 436 U.S. at 690; Bayer, 414 N.J. Super. at 270.

There is no action, however, for wrongs committed by State employees "solely

on a theory of respondeat superior." Bayer, 414 N.J. Super. at 270. Rather,

municipal liability is reserved for when "execution of a government's policy or

custom . . . inflicts the injury that the government as an entity is responsible

[for] under § 1983." Monell, 436 U.S. at 694.

      Second, analogous to 42 U.S.C. § 1983, the New Jersey Civil Rights Act,

N.J.S.A. 10:6-1 to -2, was adopted "for the broad purpose of assuring a state law

cause of action for violations of state and federal constitutional rights and to fill


                                                                             A-2648-17T1
                                        12
any gaps in state statutory anti-discrimination protection." Ramos v. Flowers,

429 N.J. Super. 13, 21 (App. Div. 2012) (quoting Owens v. Feigin, 194 N.J. 607,

611 (2008)). The Act contains two types of claims, one for any deprivation of

a right, and another for when rights are "interfered with, by threats, intimidation

or coercion by a person acting under color of law[.]" Ibid. (quoting N.J.S.A.

10:6-2(c)).

      It is undisputed that the Parnership was initially deprived of the right to

redemption under N.J.S.A. 54:5-54. This deprivation was committed by Miller,

a government official acting under color of law. See Bernstein, 411 N.J. Super.

at 335. For this reason alone, the Parnership submits that the Borough is liable

for Miller's actions. But the Borough itself is not liable because it did not inflict

injury as an entity, had no knowledge of it, or participation in it. See Monell,

436 U.S. at 690; Bayer, 414 N.J. Super. at 270. Miller's policy was not the

Borough's policy, thus the Borough should not be held vicariously liable.

                                        III.

      The Parnership argues that because there is no genuine issue of material

fact that defendants deprived it of the statutory right of redemption, a summary

judgment as to liability is warranted. But the facts relied upon for liability come

from interrogatory answers and depositions from witnesses in which the


                                                                             A-2648-17T1
                                        13
circumstances are in dispute. Because the issue of liability remains factually

contested, summary judgment would have been improper and was correctly

denied to the Partnership at this stage.

      Motions for summary judgment are reserved for circumstances where

"there is no genuine issue as to any material fact challenged" and the moving

party is entitled to judgment "as a matter of law." R. 4:46-2(c). In considering

a motion for summary judgment, the judge must determine whether "the

competent evidential materials presented, when viewed in the light most

favorable to 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,

142 N.J. at 540.

      Depositions may be utilized to decide whether a genuine issue of material

fact exists.   See R. 4:46-2(c).    Here, the Partnership points to Winberry's

deposition as definitive proof that Miller was liable, and further suggest that

because the Partnership had an established right to redeem the property, the only

question left to the court is whether Miller's action was objectively reasonable.

Just because Miller could not recall certain events, does not definitively prove

those events occurred as the Partnership perceived them. Viewing the evidence




                                                                         A-2648-17T1
                                       14
in favor of the non-moving party does not nullify the conflicts of fact. See Brill,

142 N.J. at 540. Liability cannot be ruled on given this record.

                                       IV.

      Finally, the Partnership contends that their motion to compel discovery

should not have been dismissed as moot. The discovery request concerns a

questionnaire that Winberry completed for defendants' expert, who then

generated a report. That report was provided to the Partnership, and it had,

according to the record on appeal, notice that if they did not inform the expert

that they wanted a copy of the questionnaire, it would be destroyed in the

ordinary course.

      This motion to compel was made after the expiration of the discovery

period and after the Partnership was advised that the document would be

destroyed if not earlier requested. Since the request was made almost a year

after the discovery period and the Partnership has a copy of the full report, the

motion was properly dismissed for reasons other than being moot.

      To summarize, we affirm summary judgment granted to the Borough,

reverse summary judgment granted to Miller, as there are disputed material facts

that did not approximate establishing that she engaged in a discretionary act, and




                                                                           A-2648-17T1
                                       15
we affirm the order denying additional discovery and for discovery sanctions.

The matter will be returned for trial and scheduled promptly.




                                                                     A-2648-17T1
                                     16
