                        NOT FOR PUBLICATION WITHOUT THE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-3760-14T2

MATTHEW KEEFE,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

XAVIER FERNANDEZ, CHRISTINA A.
IMPELLETIERE, FEDERICO FARIA,
JIMMY D'S BLUES SALOON, ANA
MAYERS, STATE OF NEW JERSEY,
NEW JERSEY DEPARTMENT OF
TRANSPORTATION, COUNTY OF BERGEN,
BOROUGH OF TETERBORO, BOROUGH
OF MOONACHIE, TOWNSHIP OF SOUTH
HACKENSACK, NEW JERSEY MEADOWLANDS
COMMISSION, TAIS HERNANDEZ, and
AMY CHARTOFF,

        Defendants,
and

BOROUGH OF RIDGEFIELD, RIDGEFIELD
FIRE DEPARTMENT, TRUSTEES OF
RIDGEFIELD LADDER COMPANY NO. 1,
GARY CHARTOFF, and ANDREW CHARTOFF,

        Defendants-Respondents,
and

MELISSA CHARTOFF,

        Defendant-Respondent/
        Cross-Appellant.
            Argued February 1, 2017 – Decided      June 30, 2017

            Before Judges Alvarez and Manahan.

            On appeal from the Superior Court of New
            Jersey, Law Division, Bergen County, Docket
            No. L-2250-11.

            Rosemarie   Arnold  argued   the cause  for
            appellant/cross-respondent (Law Offices of
            Rosemarie Arnold, attorneys; Ms. Arnold and
            Paige R. Butler, on the briefs).

            Ian C. Doris argued the cause for respondents
            Borough   of  Ridgefield,   Ridgefield   Fire
            Department, Trustees of Ridgefield Ladder
            Company No. 1, Gary Chartoff, and Andrew
            Chartoff (Keenan & Doris, LLC, attorneys;
            Thomas A. Keenan, of counsel; Bernadette M.
            Peslak, on the brief).

            Anthony J. Accardi argued the cause for
            respondent/cross-appellant (Accardi & Mirda,
            P.C., attorneys; Mr. Accardi, of counsel and
            on the brief).

PER CURIAM

     Plaintiff Matthew Keefe appeals from a jury verdict finding

no cause of action against the only remaining defendant, Melissa

Chartoff    (Chartoff),   in   his   personal   injury   action   against

multiple parties.     He also appeals the court's earlier ruling

granting summary judgment to defendants Gary and Andrew Chartoff. 1

Chartoff cross-appeals the court's partial denial of an earlier


1
  We will    refer to them as Gary and Andrew in order to avoid
confusion   with Chartoff, since the three are family members who
share the    same last name.   We collectively refer to Chartoff,
Gary, and   Andrew as "the Chartoffs."

                                     2                             A-3760-14T2
motion for summary judgment.   That decision left intact for trial

the fifth count of Keefe's third amended complaint. We now affirm.

     Briefly, Keefe was severely injured when he was struck by a

drunken driver.   The extent and nature of his injuries are not in

dispute.   The responsible driver, Xavier Fernandez, allegedly

became intoxicated while attending a baby shower at a fire hall.

     The issue in dispute is whether Chartoff's contributions to

the baby shower arrangements caused her to fall within the purview

of the social host statute, N.J.S.A. 2A:15-5.5 to -5.8.   The same

question arises as to Gary and Andrew with regard to the motion

for summary judgment.

     Chartoff, Maggie Ramirez, and Thais Hernandez were close

friends.   Ramirez and her husband Federico Faria were expecting,

and Faria wanted to organize a baby shower, consisting of a large

number of his friends and members of his family. He asked Chartoff

to arrange the use of the Ridgefield Fire Department social hall

through her father, Gary, who is a fireman and member of Ridgefield

Hose Company No. 1.     Chartoff was also responsible for printing

the shower invitations, which were distributed by Faria mainly

through his barber shop.   She also carried decorations to the hall

before the party.   Faria employed the services of a bartender and

a disc jockey for the party.



                                 3                          A-3760-14T2
      Chartoff's brother Andrew, also a fireman, represented the

Ridgefield Hose Company No. 1 during the party —— which meant he

was responsible for cleanup afterwards and was required to be

present during the party to ensure the premises were not damaged.

      The Chartoffs had nothing to do with making up the guest

list, distributing invitations, selecting food or drink, or any

other aspect of hosting the event.             Chartoff testified that she

was   acquainted    with   no   more    than   ten   people   at   the   shower,

including her mother and the parents-to-be. Neither she nor anyone

in her family were acquainted with Fernandez, and neither Chartoff

nor Gary recalled seeing him during the party.

      The trial took place over twenty-one days, ending on January

14, 2015.   During her summation, which the trial judge interrupted

four times, Keefe's attorney attacked the truthfulness of the

defense witnesses, including the Chartoffs, and counsel.                 As the

trial judge described it, Keefe's attorney said that "the defense

case was set up[,]" and that Chartoff's attorney attempted to

confuse or mislead the jury.

      Keefe's      attorney     objected       on    the      record,     before

deliberations, to the instruction the judge proposed to give the

jury about her summation.              The basis for Keefe's attorney's

objection was twofold, that Chartoff's counsel had attacked her

during his summation, and that although an instruction regarding

                                        4                                A-3760-14T2
inappropriate comments by both attorneys might be warranted, she

should not be singled out for criticism.        Keefe's counsel was also

concerned    that   the    instruction    the   judge   fashioned     would

completely undermine the theory of the case she had argued to the

jury:    that the Chartoffs, Faria, and Ramirez had concocted a

false narrative so Chartoff could avoid any legal liability.

Nonetheless, the judge gave the instruction.         The events following

summation and the instruction are set forth in detail in the

relevant sections.

     After the jury returned its no cause of action decision, the

judge   denied   Keefe's   motion   for   judgment   notwithstanding     the

verdict.    See R. 2:10-1.     Keefe raises the following points for

our consideration:

            POINT I
            THE TRIAL COURT ERRED IN GRANTING SUMMARY
            JUDGMENT TO ANDREW AND GARY CHARTOFF AS AGENTS
            OF THE RIDGEFIELD HOSE COMPANY NUMBER ONE,
            INC. IN THE FACE OF FACT ISSUES AS TO WHETHER
            THEY WERE SOCIAL HOSTS WITHIN THE MEANING OF
            N.J.S.A. 2A:15-5.5.

            POINT II
            THE SUMMARY JUDGMENT IN FAVOR OF ANDREW AND
            GARY MANIFESTLY DISTORTED THE TRIAL TO
            PLAINTIFF'S DETRIMENT.

            POINT III
            THE JURY VERDICT IN FAVOR OF MELISSA CHARTOFF
            WAS AGAINST THE WEIGHT OF THE EVIDENCE AND
            RESULTED   IN  A   MISCARRIAGE  OF   JUSTICE,
            COMPELLING A JNOV OR A NEW TRIAL.


                                     5                              A-3760-14T2
    A.   Melissa Admitted at Trial that she
         Expressly Invited People to the Baby
         Shower   by,  inter   alia,    Designing,
         Printing and Putting Labels on the
         Invitations,   as   well    as    Sending
         Invitations.

    B.   Melissa's Conduct Amounted to an Implied
         Invitation.

    POINT IV
    THE TRIAL COURT'S DECISION TO PERMIT NON-PARTY
    FARIA TO APPEAR ON THE JURY VERDICT SHEET FOR
    PURPOSES OF APPORTIONMENT OF FAULT, WAS AN
    ERROR THAT LED TO AN UNJUST VERDICT.

    POINT V
    THE   TRIAL   JUDGE   ERRED  BY   CONTINUOUSLY
    INTERRUPTING PLAINTIFF'S SUMMATION AND THEN
    GIVING AN INSTRUCTION SUA SPONTE TO THE JURY
    AS PART OF ITS CHARGE THAT IMPORTANT ARGUMENTS
    IN THE SUMMATION SHOULD BE DISREGARDED,
    DESPITE THE LACK OF OBJECTION BY DEFENSE
    COUNSEL.    THIS RULING DEMEANED COUNSEL AND
    QUESTIONED HER CREDIBILITY AND SEVERELY
    UNDERMINED    THE   ENTIRE   PRESENTATION   OF
    PLAINTIFF'S CASE.

    A.   Summation.

    B.   Plaintiff's Counsel's Comments during
         Summation were Completely Legitimate
         Based Upon the Evidence at Trial.

Chartoff's cross-appeal states:

    IN THE EVENT THE APPELLATE COURT VACATES THE
    JURY VERDICT AND REMANDS FOR A NEW TRIAL, THEN
    MELISSA CHARTOFF APPEALS THE DENIAL OF HER
    MOTION FOR SUMMARY JUDGMENT ON THE 5TH COUNT
    OF THE THIRD-AMENDED COMPLAINT.

    A.   Standard of Review.



                          6                          A-3760-14T2
          B.    Melissa Chartoff did not "provide"
                alcoholic  beverages   to  Xavier  N.
                Fernandez; as such, Melissa Chartoff
                cannot be held liable for Plaintiff's
                injuries under N.J.S.A. 2A:15-5.5, et
                seq.

          C.    Judge Steele erred as a matter of law in
                denying Melissa Chartoff's motion, which
                error warrants the reversal of her order
                and the grant of summary judgment in
                Melissa Chartoff's favor.

                                I.

                                A.

    We review a grant of summary judgment de novo, meaning we

apply the same standard that governed the trial court.     Henry v.

N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (citing

Busciglio v. Della Fave, 366 N.J. Super. 135, 139 (App. Div.

2004)).   Summary judgment must be granted if "the pleadings,

depositions, answers to interrogatories and admissions on file,

together with 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."      R.

4:46-2(c); see Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 529-30 (1995).

    In conducting this review, we interpret the facts, and any

inferences therefrom, in the light most favorable to the non-

moving party.   See Lippman v. Ethicon, Inc., 222 N.J. 362, 367


                                 7                          A-3760-14T2
(2015) (citing Brill, supra, 142 N.J. at 523, 540).   If there is

a genuine issue as to any material fact, summary judgment should

be denied.   R. 4:46-2(c); Brill, supra, 142 N.J. at 540.

                                  B.

     Pursuant to N.J.S.A. 2A:15-5.6, an injured party:

          may recover damages from a social host only
          if:

          (1) The social host willfully and knowingly
          provided alcoholic beverages either:

               (a)   To a person who was visibly
               intoxicated in the social host’s
               presence; or

               (b)   To a person who was visibly
               intoxicated   under   circumstances
               manifesting reckless disregard of
               the consequences as affecting the
               life or property of another; and

          (2)    The social host provided alcoholic
          beverages to the visibly intoxicated person
          under   circumstances   which    created   an
          unreasonable risk of foreseeable harm to the
          life or property of another, and the social
          host failed to exercise reasonable care and
          diligence to avoid the foreseeable risk; and

          (3) The injury arose out of an accident caused
          by the negligent operation of a vehicle by the
          visibly intoxicated person who was provided
          alcoholic beverages by a social host.

          [N.J.S.A. 2A:15-5.6.]

     Keefe objects to the grant of summary judgment, contending

that there was a genuine issue of material fact regarding whether


                                  8                         A-3760-14T2
or not Andrew and Gary invited guests to the premises, and whether

they were social hosts within the meaning of the statute.               In

rendering his decision, the judge found that Gary and Andrew did

not invite any guests to the shower and were otherwise uninvolved

in the arrangements or giving of the party.        He also found that

Andrew was present during the event solely to ensure the premises

were not damaged, and as a representative of the fire company.

Accordingly, neither man was a social host within the meaning of

the statute.

      A social host is defined as:

            a   person   who,  by   express   or   implied
            invitation, invites another person onto an
            unlicensed    premises    for   purposes    of
            hospitality and who is not the holder of a
            liquor license for the premises and is not
            required to hold a liquor license for the
            premises . . . , and who legally provides
            alcoholic beverages to another person who has
            attained the legal age to purchase and consume
            alcoholic beverages.

            [N.J.S.A. 2A:15-5.5.]

      Gary's involvement was limited to approving the use of the

premises.    The record is bare of any suggestion that Gary had any

other involvement.     Nothing in the record suggests that he even

knew that alcohol would be served.       Thus, he could not be found

to   have   "legally   provide[d]   alcoholic   beverages   to   another

person[.]"


                                    9                            A-3760-14T2
     Like his father, Andrew had nothing to do with planning or

preparation for the party.   His mere presence at the hall does not

make him a person who "provided" alcohol to the guests.          As a

matter of law based on uncontroverted facts, neither was a social

host.   Summary judgment was properly granted.

                                C.

     Little needs to be said about Keefe's claim that the grant

of summary judgment to Gary and Andrew "manifestly distorted the

trial to [Keefe's] detriment[.]"     Undoubtedly, the case would have

been stronger had Keefe been able to establish that the baby shower

was a "joint Chartoff family event[.]"      That would have required

entirely different circumstances than those we see in the record,

however.   Hence, the grant of summary judgment to Gary and Andrew

did not in any way prejudice plaintiff's presentation.     The point

is so lacking in merit as to not warrant further discussion in a

written opinion.   R. 2:11-3(e)(1)(E).

                                II.

                                A.

     We should not reverse a trial court's denial of a motion for

judgment notwithstanding the verdict (JNOV) unless it "clearly

appears that there was a miscarriage of justice under the law."

R. 2:10-1.    In reaching a decision, we focus "on whether the

evidence submitted to the jury, and any legitimate inferences

                                10                            A-3760-14T2
which can be drawn from that evidence, support the jury verdict."

Wade v. Kessler Institute, 343 N.J. Super. 338, 354 (App. Div.

2001) (citing Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396,

415 (1997)).    In performing this review, we "must accept as true

all evidence supporting the position of the party defending against

the motion and must accord that party the benefit of all legitimate

inferences which can be [deduced from the evidence]."    Besler v.

Board of Educ. of West Windsor-Plainsboro Regional School Dist.,

201 N.J. 544, 572 (2010) (alteration in original) (quoting Lewis

v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). The jury's factual

determinations should only be disturbed if the reviewing court

finds that the jury could not have reasonably reached its verdict

on the evidence presented at trial.    Sons of Thunder, supra, 148

N.J. at 415.

     A trial judge "shall grant" a motion for a new trial "if,

having given due regard to the opportunity of the jury to pass

upon the credibility of the witnesses, it clearly and convincingly

appears that there was a miscarriage of justice under the law."

R. 4:49-1(a).   We review a trial court order denying a new trial

under essentially the same standard as that applied by the trial

court.   Hill v. N.J. Dept. of Corr., 342 N.J. Super. 273, 302

(App. Div. 2001) (citing R. 2:10-1).       "This standard applies

whether the motion is based upon a contention that the verdict was

                                11                          A-3760-14T2
against the weight of the evidence, or is based upon a contention

that the judge's initial trial rulings resulted in prejudice to a

party."    Ibid. (citing Crawn v. Campo, 136 N.J. 494, 510-12

(1994)). If there was legal error during the trial, we also accord

deference to the trial judge's evaluation of the prejudice that

resulted, and whether that prejudice contributed to an unjust

result.   Ibid. (citing Crawn, supra, 136 N.J. at 512).

                                 B.

     We simply cannot agree with Keefe that the denial of his

motion for JNOV was a miscarriage of justice under the law.     There

was no proof that Chartoff did anything more than print invitations

and help in securing the hall.        Chartoff had nothing to do with

the creation of the guest list, the provision of food, or the

provision of drinks.   Of the 100 or so partygoers, she knew about

ten of them.   To the best of her knowledge, Chartoff never saw the

driver.   She did not provide anyone with alcohol at the event.

Accepting Chartoff's evidence as true, and giving her the benefit

of all favorable inferences, it does not appear that the jury

reached an unjust result. There was no evidence to support finding

Chartoff a social host.

     Nor was the verdict a miscarriage of justice.       A motion for

a new trial "should be granted only where to do otherwise would

result in a miscarriage of justice shocking to the conscience of

                                 12                           A-3760-14T2
the court."     Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J.

506, 521 (2011).       There was no proof that Chartoff was a social

host or that she provided the driver with alcohol.                   The jury's

verdict was reasonable in light of the evidence.

                                    III.

                                        A.

       The jury is entitled to clear and correct charges, and their

absence may constitute plain error.              Wade v. Kessler Inst., 172

N.J. 327, 341 (2002).         However, we will not disturb a jury's

verdict "where the charge, considered as a whole, adequately

conveys the law and is unlikely to confuse or mislead the jury,

even   though   part    of   the   charge,       standing   alone,    might    be

incorrect."     Ibid. (quoting Fischer v. Canario, 143 N.J. 235, 254

(1996)).   See also, Sons of Thunder, supra, 148 N.J. at 418.                 The

same standard of review applies to jury interrogatories and verdict

sheets.    Ibid.

       The four-page verdict sheet asked in the first question:

           1.      Has plaintiff Matthew Keefe proven by a
                   preponderance of the evidence that
                   Melissa Chartoff was a social host, as
                   defined by law, by either expressly or
                   impliedly inviting another person or
                   persons to the party on January 22, 2011?

                   Yes________     No        √       Vote     8-0

                   If you answered "yes" to this question,
                   then proceed to answer question #2; if

                                     13                                 A-3760-14T2
                   you answered "no" to this question, then
                   stop your deliberations, proceed no
                   further and return your verdict.

     The jury decided that Chartoff was not a social host, and

therefore stopped deliberations after the first question.                     The

argument raised by Keefe that the driver should not have been

included on the later questions is essentially moot as the jury

never reached those questions.

     Nonetheless,      we   briefly   reiterate       well-established     legal

principles.       The court was required to include Faria under the

Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8.                   "[T]he

trier of fact must allocate the percentage of fault among the

settling    and    non-settling   defendants     to    enable   the   court     to

calculate    the    percentage    attributable    to     the    non-settlers."

Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112-113 (2004)

(citing Young v. Latta, 123 N.J. 584, 592 (1991)).

     It is well established that a defendant who is not protected

by statutory immunity, but was dismissed from the case on some

other grounds, "remains a 'party' to the case for the purpose of

determining the non-settling defendant's percentage of fault."

Town of Kearny, supra, 214 N.J. at 100 (quoting Brodsky, supra,

181 N.J. at 113); see also R. 4:7-5(c); Verni ex rel. Burstein v.

Harry M. Stevens, Inc., 387 N.J. Super. 160, 205, 215 (App. Div.

2006) (reversing grant of motions for summary judgment filed by

                                      14                                 A-3760-14T2
personal injury plaintiff on behalf of settling defendants in

order to bar allocation of fault to settling defendants), certif.

denied, 189 N.J. 429 (2007).

     Likewise,     it    does   not   matter    that    defendants   failed    to

properly serve their cross-claim for contribution against Faria.

In Young v. Latta, supra, 123 N.J. at 586, the Court held this

credit "is available in every case in which there are multiple

defendants, whether or not a cross-claim for contribution has been

filed."

     Accordingly, mention of Faria had no impact on the jury's

verdict because they never reached the pages of the verdict sheet

that mention him, much less the question.                  In any event, the

judge's decision to include him was correct on the law.

                                         IV.

     Finally, we address Keefe's contention that the judge erred

by interrupting her summation and giving the jury instruction

regarding her summation comments. We note that despite identifying

the interruptions, Keefe does not explain how they might have

affected jury deliberations, the jury's perception of his counsel,

or the final verdict.       The interruptions, as enumerated by Keefe,

were:     (1) the court interrupted counsel to only comment on the

evidence    not   to    testify;   (2)    the   court   criticized   counsel's

operation of the power point presentation containing slides of

                                         15                             A-3760-14T2
trial testimony; (3) the court interrupted counsel and gave a

curative instruction regarding a comment made by Keefe's attorney

as to the nonappearance of a nonparty witness; (4) the court

interrupted counsel, instructing her not to use the names of jurors

when giving hypotheticals.       Having considered the entirety of the

trial record, we conclude these interruptions do not have the

potential to have led the jury to an unfair result.

     At   the   close   of   Keefe's    counsel's   summation,   Chartoff's

attorney moved for a mistrial because of Keefe's attorney's closing

comments regarding the alleged conspiracy to protect Chartoff from

liability, and the alleged dishonesty of the witnesses.           Although

she denied the motion, the judge informed counsel that she intended

to draft an instruction advising the jury to ignore the statements.

She later read the instruction, and allowed Keefe's attorney to

fully place her objections to it on the record.           The instruction

reads:

                The lawyers are here as advocates for
           their clients.    In their opening statements
           and their summations they have given you and
           their views of the evidence and their
           arguments in favor of their client's position.
           While you may consider their comments, nothing
           that the attorneys say is evidence. And their
           summations or their comments are not binding
           on you, any comment from counsel.

                And now jurors, I do have an additional
           instruction that I wish to give you, that is
           not in the submission. At this time I address

                                       16                           A-3760-14T2
         something with you, the jury, that involves
         comment of counsel in the summations that you
         heard yesterday, and in particular with regard
         to plaintiff's counsel's summation which you
         heard yesterday afternoon. In that summation,
         you may have heard or remember comment of
         plaintiff counsel stating more than once, "the
         defense case was setup from the beginning to
         mislead you" or words to that effect. You may
         have heard or remember other similar or
         related comment or argument of plaintiff
         counsel in what she characterized as defense
         counsel's attempt to confuse you, mislead you,
         or to present a rouse to you in the defense
         case.

              You are instructed that this argument by
         plaintiff counsel has no rightful place in
         proper commentary on the evidence before you.
         In summations counsel are permitted to argue
         and comment on the evidence presented and to
         comment on the credibility of the witnesses
         presented.    These comments by plaintiff
         counsel were improper and as such you are
         instructed to disregard argument or comment
         that suggested to you that the defense is
         trying to mislead you or rouse you with the
         evidence.

              The point is . . . that you are to
         consider argument of counsel that does comment
         on the evidence, and does comment on the
         credibility of the testimony presented.
         Nothing that the attorneys say is evidence,
         either one. And finally, as I've instructed
         to you previously nothing that either attorney
         has said is binding upon you.

    After reviewing Keefe's summation, we find the instruction

was warranted. Impugning the trustworthiness of defense counsel

and the character of the defense witnesses and Chartoff herself



                              17                          A-3760-14T2
when there was no basis in the record to do so required action by

the court.

      "In general, we afford counsel broad latitude in closing

arguments."         Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128

(2008) (citing Bender v. Adelson, 187 N.J. 411, 431 (2006)).

However,      "it    is    improper     for    an    attorney    to   make    derisive

statements about parties, their counsel, or their witnesses."

Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div.

2010); see also Henker v. Preybylowski, 216 N.J. Super. 513, 518-

520   (App.    Div.       1987)   (noting     that    the   cumulative       effect    of

inappropriate comments by plaintiff's counsel, including remarks

on motives and trustworthiness of defense counsel, "probably"

entitled defendant to a new trial); Rodd v. Raritan Radiologic

Associates, P.A., 373 N.J. Super. 154, 171 (App. Div. 2004)

(citations omitted) ("attorneys . . . may not use disparaging

language to discredit the opposing party, or witness, . . . or

accuse a party's attorney of wanting the jury to evaluate the

evidence      unfairly,      of    trying      to    deceive    the   jury,     or     of

deliberately distorting the evidence."); Tabor v. O'Grady, 59 N.J.

Super. 330, 340-341 (App. Div. 1960) (holding plaintiffs' counsel

"far exceeded the bounds of proper comment and argument" by casting

"unjustified        aspersions     on   defense      counsel's    motives"      and    by

describing the defense as "'replete with misleading red herrings'

                                          18                                    A-3760-14T2
and . . . based on trickery, shameful conduct, and the pulling of

'stunts'").

     We cannot agree with Keefe's counsel's characterization of

the trial record.        The attacks on Chartoff's attorney and the

defense testimony exceeded the bounds of legitimate disagreement.

Counsel was clearly using disparaging language with the intent of

raising a suspicion in the juror's minds that some unspecified

conspiracy was at play to protect Chartoff from liability.                      That

suggestion was not supported by the trial record, exceeded the

bounds of proper commentary, and made the issuance of a jury

instruction     necessary.       We    also      disagree      that    Chartoff's

attorney's summation justified the response.

     The judge's instruction was prefaced by the standard model

jury charge language regarding the role of attorneys. And although

the judge told the jury that the argument that Chartoff's counsel

was attempting to mislead them had no "rightful place in proper

commentary    on   the   evidence[,]"      she    went    on   to     discuss   the

difference between argument and evidence.                The judge reiterated

that nothing "either" attorney said in summation is evidence.                    The

judge ended with "nothing that either attorney has said is binding

upon you."

     The     instruction   was   necessitated        by     Keefe's     counsel's

summation. It underscored that the arguments made by the attorneys

                                      19                                   A-3760-14T2
are distinct and separate from the evidence, and that only the

jury's independent assessment of that evidence determined the

verdict, not the opinion of the judge or attorneys, or any comments

they may have made.

                                V.

     Finally, we do not address Chartoff's cross-appeal.      It is

unnecessary in light of our decision to affirm the jury's verdict.

     Affirmed.




                               20                           A-3760-14T2
