SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

- 4954

- 18T2 MICHELLE SHELDON, Plaintiff

- Appellant,

v. THE COOPER HEALTH SYS TEM and LARRAINE RAMOS, Defendant s - Respondent s .

_____________________ _ __ __

Argued telephonically September 14, 2020

– Decided October 6, 2020 Before Judges Currier, Gooden Brown and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Div is ion, Camden County, Docket No. L

- 0350

- 17.
R. Armen McOmber argued the cause for appellant (McOmber McOmber & Luber, PC , attorneys; R. Armen McOmber and Matthew A. Luber, of counsel and on the briefs ). Joseph G. Antinori argued the cause for respondent (B rown & Connery, LLP, attorneys; Christine P.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Althoug h 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

- 3.2 A

- 4954

- 18T2 O'Hearn, Joseph G. Antinori, and Andrew S. Brown, on the brief).
PER CURIAM Plaintiff Michelle Sheldon appeals from the June 26, 2019 Law Division order granting her former employer, the Cooper Health System ( Cooper) , and Lorraine Raimo , 1 a director , summary judgment dismissal of her disability discrimination complaint stemming from her August 7, 2015 termination

. Because the judge failed to make any findings or state any reasons for his decision as required b y Rule 1:7

- 4(a) , we vacate the order under review and remand the matter for further proceedings

. T o lend context to the appeal, w e detail the facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, vi ewed in the lig ht most favorable to plaintiff

. Angland v. Mountain Creek Resort, Inc. , 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co. , 142 N.J. 520, 523 (1995))

. In 2010, Cooper hired plaintiff in its urogynecology department as a cli ni cal practice a ssistant. P laintiff 's job duties included scheduling and canceling patient appointments, taking vitals of patients , call ing in prescriptions , running urodynamic testing with nurse practitioners, and assist ing doctors. O n October 9, 2013 , w h ile

1 Lorraine Raimo was incorrectly pled as Larraine Ramos

.3 A

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employed at Cooper, plaintiff "slipped and fell " in the parking lot of a Wawa and sustained injur ies to her neck, back, foot, and ankle. Plaintiff did not seek immediate medical care for her injuries and returned to work within days, despite experie nc ing pain. When the pain persisted , plaintiff retained an attorney who advised her to
seek medical treatment , as a result of which plaintif f was treated by her "family doctor" as well as other medical professionals, including Dr. Young Lee, a pain
manag em ent specialist , Dr. Brandon Bird, a chiropractor, and Dr. Jack Bondi, a podiatrist

. Plaintiff also underwent several MRIs. Plaintiff's dia gnoses included "cervical disc herniation [ s ][ , ] " " lumbar facet syndrome [ , ] " " disc bulging [,]"

" clinical lumbar rad ic ulopathy [ , ] " " sacroiliitis [ , ] " " avascular necrosis of bone [ , ] " " ankle sprain and strain [ , ] " " closed ankle fracture [ , ] " and

" osteochondritis [

. ] " She was prescribed medications, physical therapy, a back brace , and a n orthopedic boot. At her deposition, p la intiff testified she eventually stopped seeking treatment for the injuries, primarily because she refused to take the prescr ibed medications, the chiropractic treatment was too painful, and she rejected the surg ical option recommended by the podiatrist. S he also stopped wearing the back brace because "[i]t hurt."4 A

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On April 17, 2014, a pproximately six months after the slip and fall , plaintiff r equest ed a l eave o f a bsence from Cooper via its online platform,

a sserting that she had a "serious health condit io n." A supporting prescription form prepared by Dr. Bondi on April 17 , indicated that plaintiff would be absent from work pe nding test results. Cooper granted plaintiff the requested leave from April 18 , to September 12, 2014. On February 5, 2015, a ft er plaintiff returned to work, she filed a personal injury lawsuit against Wawa and another defendant, alleging that she was "severely and permanently injured" as a result of her fall on Wawa's property (the Wawa lawsuit ). A few months later, on May 14, 2 01 5, plaintiff submitted anothe r leave of absence request form to Cooper for her "serious health condition." In a medical certification submitted to support her request for leave under the Family and Medical Leave Act (FMLA), N.J.S.A. 34:11B

- 1 to

- 16 , pla in tiff's chiropractor, Dr. Bird , averred that plaintiff was "unable to perform any of . . . her job functions due to [ her health] condition , " 2 and that her

2 Dr. Bird identified the specific job functions plaintiff was unable to perform as "walk ing, s tanding, bending, and lifting." In a subsequent request for plaintiff's medical records submitted to Dr. Bird by a physician at plaintiff's disability insurance carrier, the physician identified some of plaintiff's occupational demands as "[f]requen tly st anding, walking, reaching," and "lift[ing] . . . up to [ten] pounds of force" as well as "[o]ccasionally sitting," and "lift[ing] . . . up to [twenty] pounds of force."5 A

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"condition [would] cause episodic flare

- ups periodically preventing [her] from performing . . . her jo b functions." Dr. Bird esti mated that plaintiff's period of incapacity would end on June 20, 2015. Plaintiff testified she requested the second leave of absence because when she "bent down to put a chart into [a] file" at work, she "couldn't get back up " and "had to kind of crawl to [her] co

- worker ['] s chair to get [her]self back up

. " According to plaintiff, she " finished [ the ] day out, and then went to the chiropractor

. . . crying" because of the pain. Plaintiff acknowledged that instead of being s ym pathetic, her co

- worker, Mel issa Butts, observed plaintiff crawling and said, "'[y]ou're laying that on a little thick,' implying that she . . . felt [p]laintiff was over

- exaggerating her injury." Cooper granted plaintiff the requested leave from May 18 to June 20,
2015 , and then ext ended the leave period , first to July 17, 2015, and then to August 28, 2015, based on plaintiff's submission of two respective prescription notes prepared by Dr. Lee , her pain management doctor, stating that plaintiff
was "una bl e to return to work

. " In order to receive temporary disability benefits during her second leave of absence, 3 plaintiff certified in a May 23, 2015 claim submission to the Department of Labor and Workforce Development, Division

3 Plaintiff exhausted her accrued paid time off during her leave of absenc e.6 A

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of Temporary Dis ability In su rance, that she sustained "[ two ] [ h ] erniated [ b ] ulging disc [ s ]" from a fall that were " giving [ her ] severe pain in [ her ] back and legs , " and, as a result , she had been unable to work since May 18. While plaintiff was out of work during her seco nd leave p er iod, Cooper began to receive complaints from other employees questioning plaintiff's health status. On June 10, 2015, the following complaint was submitted to Cooper's anonymous ethics complaint hotline:

[Plaintiff] is abusing the [FMLA]

. [Plaintiff] i s currently on [another] medical leave that only takes place during the summer months. [Plaintiff] does not see any Cooper physicians, she utilizes outside physicians. Other employees follow her on social media and she posts pictures of her swimming and at tending b a rbeques. [Plaintiff] i s supposed to be i n a back brace and at these events , she i s not wearing the brace. Employees are becoming frustrated with her absence because [plaintiff] i s abusing the medical leave. [Plaintiff] 's work i s being divide d amongst other employees a nd it is overwhelming. On June 19, 2015, a second anonymous complaint was submitted to the
hotline , stating that plaintiff was "out on FMLA due to a leg issue. . . . [ but ] there [was] nothing wrong with [ her ] ." The complainan t stated that plaintiff

" went on vacation [ , ] " "went bowling [ , ] " and "uploaded a video of her swimming." The complainant asserted that plaintiff " has gone out on medical leave at approximately the same time" each year for "the same reason eac h7 A

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time," but t ha t plaintiff "does not complain about her head, leg, and back until it is time for her to go on leave again." The complainant maintained that plaintiff "will not go to a company doctor" because she "knows a company doctor will not find anyt hing wrong wit h her." On July 8, 2015, Donna Krisanda, Cooper's Human Resources ( HR) Manager, received an email from Butts , plaintiff's coworker, complaining that plaintiff's leave , which was "during the same time [in] the summer months" as her prior lea ves, was " a sl ap in the face for the rest of us who come to work every[ ]day." Butts attached several photos purportedly posted by plaintiff to social media, including a photo "which show [ ed ] [plaintiff] in a swimming pool with small children and another which showed a p ool with the caption, . . . 'Summer don't get no better then [sic] this had the pool all to myself today." The
p hotos also depicted plaintiff at a carnival and attending a gra duation party. 4
After receiving the complaints , Cooper retained a private i nv estigation firm, PrimeSource Investigation (PrimeSource) , to conduct surveillance of plaintiff and document her activities and physical capabilities

. After three days

4 At her deposition, Butts acknowledged that she had never reviewed plaintiff's medical records and was unaware of her medical diagnosis. Butts also acknowledge d that none of the photos depicted plaintiff engaged in any strenuous physical activity.8 A

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of surv eillance , PrimeSource reported observ ing plaintiff " entering and operating a ve hi cle, smoking cigarettes, transporting several individuals, and conducting errands " during which she " lift [ed] and carr [ied] several food items , ben [t] at the waist, and plac [e d] them in her vehicle. " PrimeSource's report noted that "[n] o braces or o ther o rthopedic devices were observed on or about [plaintiff]' s body. " Based on P rimeSource's report, indicating that plaintiff engaged in a variety of physical activities without any apparent discomfort or difficulty, Cooper determined that plaintiff had fr au dulently misrepresented her inability to work in order to obtain a leave of absence. On August 7, 2015, after being instructed by the HR manager and the general counsel to te rminate plaintiff, Lorraine Raimo, the director of operations for the medical p ra ctice where plaintiff worked, notified plaintiff during an in

- person meeting that Cooper was terminating her employment for falsifying her medical leave application

. 5 During the meeting, as instructed, Raimo asked plaintiff whether she had discussed wit h co - workers that she "watch[ed] [her] grandchildren during the

5 At her deposition, Raimo testified she did not personally review any doctor's note directing that plaintiff be placed on medical leave. Raimo stated she "assume[d ] [plaintiff] had one" in order for her leave extension request to have been approved . Ra imo a lso acknowledged she had no reason to doubt the validity of the doctor's note.9 A

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summer , " and plaintiff responded that she had. Raimo testified she had been directed to ask the questio n to confirm allegations that plaintiff was "tak[ing] leave s every year to take care of he r grandchildren." Raimo later memorialized her conversation with plaintiff in a letter dated August 18, 2015 , which stated:

As a follow up to our conversation on Au gust 7, 2015, this letter serves as confirmation of your termination from employment wit h Cooper

. . . . As indicated when we spoke, your termination is based on fraudulent behavior. Information that we have been provided contradicts that you have a seri ous condition that makes you unable to perform your job. On August 16, 2015, about a we ek after she was orally terminated , plaintiff filed an application for Social Security Disability Insurance ( SSDI ) benefits , certifying that she "became unable to wor k because of [her] disabling
condition on May 15, 2015[,]" and she was "still disabled. " In the application, plaintiff acknowledged that "anyone who makes . . . a false statement or representation of material fact in an application or for use in determini ng a right to payment . . . [of SSDI benefits] commits a crime

. " Further, she "affirm[e d] that all information . . . [she provided] in connection with th [e] claim [was] true." In supporting f

unction al assessment r eports dated August 21 , and October 19, 2015, plaintiff reiterated her physical and functional limitations, stating she has10 A

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"a ha rd time sitting or standing for periods of time" because of "chronic pain." She stated she could "only walk . . . for about [fifteen] minutes before having to sit[,]" and she could not "pay attention" when she was in pain. Additionally, o n January 12, 20 16 , approximately five months after her termination, plaintiff was deposed in the Wawa lawsuit , and testified that she stopped looking for a job
becau se she could not "sit[,]" "stand[,]" or "walk" for "long periods of time because [she was] always in sever e pain." Medical reports submitted in connection with plaintiff's SSDI application underscored plaintiff's physical and functional limitations . I n a September 15, 2016 comprehensive psychiatric examination, plaintiff told the examining psychologist th at she was unable to "sit or stand for long periods of time without being in excruciating pain" and was unable to work because of "severe pain with [h er] back and neck." In a September 16, 2016 report, plaintiff told the examin ing nurse practitioner that sh e had " an average pain level of [ eight ] to [ nine ]" for her " neck " and "[ nine ] to [ ten ]" for her " lower back " "on [a zero to ten] pain scale." Accor ding to plaintiff, "[t]he pain [was] worsened by walking, standing, . . . sitting, bending forward, twisti ng , or . . . lifting a heavy weight." Plaintiff's application for SSDI benefits was approved on November 22, 2016,11 A

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following a hearing before an admi nistrative law judge. In 2017, plaintiff began receiving SSDI benefits , retroactive to November 2015

. O n January 23, 2017, plaintiff filed a three

- count complaint against Cooper and Raimo , alleging that defendants wrongfully terminated her employment by unlawfully discriminating and retaliating against her because of her disability, as well as failing to re as onably accommodate her disability, in violation of the New Jersey Law Against Discri mination (LAD), N.J.S.A. 10:5

- 1 to

- 49

. To " establish a prima facie case " of disability discrimination in a termination context, plaintiff was required to offer evidenc e that " (1) she [ was ] disabled within the meaning of the LAD ; (2) she ' was performing [ her ] job at a level that met [her] employer's legitimate expectations ' ; (3) she was discharged ; and (4) [her] employer sought someone else to perform the same work after s he left. " Grande v. St. Clare's Health Sys. , 230 N.J. 1, 17

- 18 (2017) (second and
t hird alteration in original) (quoting Jansen v. Food Circus Supermarkets, Inc. , 110 N.J. 363, 382 (1988) )

. When the focus is upon the second element of plaintiff's proof s, all that plaintiff is required to demonstrate at the outset is that she "was actual ly performing the job prior to the termination." Zive v. Stanley Roberts, Inc. , 182 N.J. 436, 454 (2005). To set forth a prima facie case of12 A

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retaliatory discharge, plai nt iff was required to offer evidence that (1) she engaged in protected activity known to Cooper , (2) she was thereafter subjected to an adverse employment action, and (3) there was a causal link between the
two. Jamison v. Rockaway T w p. Bd. of Educ. , 242 N. J. Super. 436, 445 (App. Div. 1990).
Once a prima facie case of either discrimination or retaliation has been established, Cooper's "burden varies depending on whether [it] seeks to establish the reasonableness of the otherwise discriminatory act or a dv ances a non discriminatory reason for [plaintiff's] discharge." Jansen , 1 10 N.J. at 382. In the latter case, the burden of going forward shifts to Cooper to articulate some legitimate non - discriminatory or non - retaliatory reason for the adverse action,

a nd if such a reason has been set forth, then plaintiff must demonstrate by a preponderance of the evidence that a discriminatory intent motivated the employer's action. Ibid. ; Jamison , 242 N.J. Super. at 445. This can be done by proving that the articu la ted reason is a pretext for the discrimination or retaliation or that a di scriminatory reason was more likely Cooper 's motivation. Ibid. ; Jansen , 110 N.J. at 382

- 83. If that burden is met, then a presumption of retaliatory intent arises that Cooper can di spel by proof, by a preponderance of13 A

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the evidence, that it would have take n the adverse action regardless of retaliatory intent. Jamison , 242 N.J. Super. at 445

- 46. To set forth a prima facie case of discriminatory discharge for failure to accommodate h er handicapped status under the LAD , plaintiff was require d to present proof that (1) she was handicapped, (2) s he was otherwise qualified to perform the essential functions of the job, with or without the accommodation by Cooper , and was performing at a l ev el that met Cooper 's expectations, (3)

s he was fired, and (4) Cooper then sought someone to perform the same work. Clowes v. Terminix Int'l, Inc. , 109 N.J. 575, 597 (1988); Svarnas v. AT & T
Comms. , 326 N.J. Super. 59, 73 (App. Div. 1999) (citing Maher v. New Jersey Transit Rail Operations , Inc. , 125 N.J. 455, 480

- 81 (1991)). Making a reasonable accommodation for a disabled employee requires an "interactive process" in which "both [ the ] employer and employee bear responsibility for communicating with o ne another to 'identify the precise limitations resulting from the disability and potential reasonable accommodation that could overcome those limitations.'" Jones v. Aluminum Shapes, Inc. , 339 N.J. Super. 412, 422 (App. Div. 2001) (quoting Smith v. Midla nd Brake , 180 F.3d 1154, 1171 (10th Cir. 1999) ) . I n order to show that Cooper failed to participate in the interactive process, plaintiff was required to14 A

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demonstrate that Cooper knew of her disability, that plaintiff requested accommodation or assistance, t hat Cooper did not make a good faith effort to
assist her in see king accommodation, and that plaintiff could have been reasonably accommodated but for Cooper 's lack of good faith. Id. at 423 (quoting Taylor v. Phoenixville School Dist. , 184 F.3d 296, 31 5

- 16, 319

- 20 (3d Cir. 1999)). During her deposition , plaintiff testified she had not worked since her termination from Cooper, and she had no plans of applying for employment in the future. She testified that although she had accepted a position as a wai tr ess sometime in 2017, she quit after about "a day or two" because "[i]t was too hard on [her] back." Following the close of discovery, over plaintiff's objection, defendants moved for summary judgment on all three counts, arguing that plaintiff failed t o establish a prima facie case of disability discrim ination, retaliation, or failure to accommodate because the discovery revealed that plaintiff would not have been able to perform the essential functions of her job had she returned from medical leave.
On June 7 , 2019, during oral argument, t he motion judge pointedly questioned plaintiff's counsel on how plaintiff could demonstrate that she was able to perform the job in order to establish a prima facie discrimination claim15 A

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in light of plaintiff's admiss io ns in the Wawa lawsuit and the SSDI ca se that she could not work

. Counsel responded that although plaintiff sustained " permanent injuries " from " the Wawa fall [ , ]" she was not " permanently disabled [,]

. . . never said that she could [not] work," and , in fa ct , " worked after [ the fall ]

. " Counse l added that none of plaintiff's doctors stated she was permanently disabled, and plaintiff was not "declared to be permanently disabled until two years [later]

. " Counsel also pointed out that Cooper did not fire pl ai ntiff because she was unable to perfor m the job, but because Cooper was "frustrated [that] she was out on leave

. " Counsel asserted the determination on plaintiff's SSDI application

was therefore immaterial as to whether she could work at the time of her
t ermination or upon her scheduled retur n from leave. The judge then turned his inquiry to defense counsel, who responded that plaintiff was "confusing and conflating two separate issues" because "[w]e don't get to the issue of why Cooper fired her if sh e [cannot] show she can[] work. " Defens e counsel stressed that plaintiff "has for the last . . . four years consistently said over and over and over again, in three different legal forums, I can't work, I can't work, I can't work, I can't work." Counsel al so pointed out that plaintiff produced " no expert report " indicating that "[ she ] was able to work " in " August 2015 [,] " when she was terminated. Counsel added that16 A

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because plaintiff could not establish a prime facie case, "it almost does [ not ] matter why C ooper fired her [ , ]" but even if it did, Cooper had a "le gitimate nondiscriminatory reason" for her termination in that Cooper "honestly believe[d] she fraudulently requested leave." The judge then posited,

Here ' s my problem. A jury ' s going

. . . to se e . . . [the SSDI application] , I can ' t work, I can ' t do a nything. They ' re going to see deposition transcripts from the Wawa case, interrogatories, everything. I can ' t work, I can ' t work. Can you do anything? I can ' t do anything. Can you lift anything ? I can lift a pound of cheese and I can lift a two [

- ] lit er bottle of soda. That ' s her testimony. That ' s the limit of her ability to lift. She works in a medical office.

. . . What ' s a jury going to do with that

. . . ? They ' re go ing to say, ah, you kn ow what? That ' s wrong. She couldn ' t work.

. . . . [A]t some point the question is whether or not she is actually disabled, and I think [defense counsel] makes a good point. When we're technically looking at an LAD case and applying the law, plai nt iff has the burden of proof, has to prove certain thing s. Can she? Plaintiff's counsel responded , "these are factual issues for a jury, . . . not [the court]." The judge continued,

I'm not ruling on this matter yet. I'm going to look it over becau se I want to take a look. What17 A

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- 18T2 happens to me sometimes i n a case is at the end of the case the jury looks and says, you can see it in their face[s], Judge, how did this get this far? It's crazy. We went through all this for this? And my question is,

. . . if the jury finds that she says she couldn't work, ho w do we get past prong number

. . . two? How do we say that she was able to work. And we can talk about doctors and you're telling me everything. What we're not addressing is the fact that she adm it ted so much and so damaging almost to the point

. . . w here

. . . how could a jury find

. . . that she was able to work? Following oral argument, o n June 26, 2019, the judge issued an order granting defendants' motion for summary judgment and dismissi ng plaintiff's complaint with prejudice. A notation on the bottom of the order stated

" [ r ] easons set forth [ o ] n the [ r ] ecord." 6 However, the judge did not provide an oral decision during the June 7 hearing , or a written or oral decision thereafter.
This a ppeal followed. On appeal, plaintiff primarily argu es that, "despite . . . material questions of fact and credibility , " the ju dge "committed reversible error when [he] usurped the role of the jury [by]

. . . weigh [ing] the evidence and speculat [ing] how a jury might view the material facts and credibility of the parties. " Plaintiff asserts

6 The order also indicated that the motion was "unopposed."18 A

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that although she is now deemed permane ntly disabled, there are disputed material facts as to whether she was permanently disabled when she was terminated. Additional ly , there are disputed material facts as to whether d efendants ' proffered reason for terminating her was pretextual

. Further,
p laintiff asserts she " can easily demonstrate a prima facie showing to the jury that the only reason for her termination was her re quest for an extension of her medical leave [,]" thus establishing that defendant retaliated against her for making the request , and failed to engage in the interactive process or afford her a reasonable accommodation by granting her the extended medical le ave. We review a grant of summary judgment applying the same standard used by the trial court. Steinberg v. Sahara Sam's Oasis, LLC , 226 N.J. 344, 366 (2016). That standard is well

- settled.

[I]f the evidence of record

— the pleadings, depositions, answe rs to in terrogatories, and affidavits

— "together with all legitimate inferences therefrom favoring the non - moving party, would require submission of the issue to the trier of fact," then the trial court must deny the motion. On the other hand, when no genu in e issu e of material fact is at issue and the moving party is entitled to a judgment as a matter of law, summary judgment must be granted. [ Ibid. (citations omitted) (quoting R. 4:46

- 2(c)). ]19 A

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At the summary judgment stage, it is " not the court's functio n to wei gh the evidence and determine the outcome but only to decide if a material dispute
of fact exist [s]

. " Gilhooley v. Cty. of Union , 164 N.J. 533 , 545 (2000) (citing
Brill , 142 N.J. at 540). However, " [i] f there exists a single, unavoidable resoluti on of th e alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule
4:46

- 2." Brill , 142 N.J. at 540

. Further, i f " the evidence is utterly one

- sided [ , ] " a trial court h as the authority to " decide that a party should prevail as a matter of law. " Gilhooley , 154 N.J. at 455 (citing Brill , 142 N.J. at 540). Whereas our review of the facts must comply with Brill 's standards, our review of the law is plenary. Manalapan Re al ty, L.P. v. Twp. Comm. of Manalapan , 140 N.J. 366, 378 (1995).
W hen a judge issues an order granting summary judgment, the "judge is required to detail the findings of fact and conclusions of law in a written or oral opinion

. . . . Those findings and co ncl usions must then be measured against the standards set forth in [ Brill , 142 N.J. at 540]." Allstate Ins. Co. v. Fisher , 408 N.J. Super. 289, 299

- 300 (App. Div. 2009) (citations omitted) (quoting Great Atl. & Pac. Tea Co. v. Checchio , 335 N.J. Super. 49 5, 498 (App. Div. 2000)). Indeed, Rule 4:46

- 2(c) specifies that "[t]he court shall find the facts and state its20 A

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conclusio ns in accordance with [ Rule ] 1:7

- 4." Rule 1:7

- 4(a) provides , in pertinent part, that "[t]he court shall, by an opinion or memorandu m decision, either written or oral, find the facts and state its conclusions of law thereon

. . . on every motion decided by a written order that is appealable as of right

. . . . " The purpose of R ule 1:7

- 4 " is to make sure that the court makes its own
d et ermination of the matter." In re Tr. Created by Agreement Dated Dec. 20, 1961, by & between Johnson & Hoffman, Lienhard & Perry , 399 N.J. Super. 237, 25 4 (App. Div. 2006). As long recognized by our Supreme Court, "[n]aked conclusions do not satisfy the p urpose of R

. 1:7

- 4 [,] " Curtis v. Finneran , 83 N.J. 563, 570 (1980) , and " [f] ailure to make explicit findings and clear statements of reasoning [impedes meaningful appellate review and] ' constitutes a disservice to the litigants, the attorneys and the app el late court. '" Gnall v. Gnall , 222 N.J. 414, 428 (2015) (quoting Curtis , 83 N.J. at 569

- 70). Indeed, "[n] either the parties nor the appellate court is ' well

- served by an opinion devoid of analysis or citation to even a single case. ' " Fisher , 408 N.J. S up er. at 30 0 (quoting Checchio , 335 N.J. Super. at 498). The manner in which a judge complies with Rule 1:7

- 4(a) is left to " the sound discretion of the trial judge ." In re Tr. Created by Agreement Dated Dec. 20, 1961 , 399 N.J. Super. at 25 3

. A judge ma y rely upon reasons expressed by21 A

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a party "as long as the judge makes such reliance explicit

. " Id. at 253

- 54 ( citing Pressler & Verniero, Current N.J. Court Rules , cmt. 1 on R. 1:7

- 4 (20 06 ))

. In that regard, the judge must make "clear the extent of [the j u d ge's] agreement with and reliance on [the] proposed findings of fact and conclusions of law[,]" and must demonstrat e by "clear evidence that the

. . . judge carefully considered the evidentiary record and did not abdicate his decision

- making responsibili t y ." Id. at 254. Here, the judge failed to make written or oral findings of fact and conclusions of law as required under Rule 1:7

- 4(a) in adjudicating the summary judgment motion

. 7 The colloquy with counsel during oral argument falls far short of satisf

yi ng the rule. "While the failure to provide reasons necessitates a remand, we are left with the option of remanding for a statement of reasons or reversing and remanding for consider ation of the motion . . . anew. We determine that the latter course of ac tion is appropriate here" and "[w] e take no position as to the merits. " Fisher , 408 N.J. Super. at 303. We therefore vacate
t he order under review , and remand for the judge to cond uct oral argument, consider the motion anew, and enter a new order toget he r with a written

7 Neither party moved for a limited remand to require the motion judge to issue a statement of reasons.22 A

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statement of reasons in conformity with Rule 1:7

- 4(a)

. The remand proceeding shall be conducted within forty

- five days of the date of this opinion. Reversed and r emanded for further proceedings consistent with this opinion. We do not r etain jurisdiction. Any further appellate review must be sought by a timely post

- remand application.