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.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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 - 3760
- 14T2 Argued February 1, 2017

– Decided 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 Bo rough 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; Be rnadette 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
Char toff 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. " J une 30 , 20173 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
d runken driver. The extent and nature of his injuries are not in dispute. The responsible driver, Xavier Fernandez, allegedly
bec a me intoxicated while at tending a baby shower at a fire hall.
The issue in dispute is whether Chartoff's cont ributions to
the baby shower arrangements caused her to f a ll 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 a nd members of his family. H e 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 mai nly 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.4 A - 3760
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Chartoff's brother Andrew, also a fireman, represente d the Ridgefield Hose Company No. 1 during the party
—— which meant h e was responsible for cleanup afterwards and was required to b e
presen t during the party to ensure the premises were not damaged . The Chartoff s had nothing to do with making up the guest list , distributin g invitations , s electing 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 h e r family were acquainted with F er nandez , and neither Chartoff nor Gary recal led 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 truth fulness of the
defens e witnesses, including the Chart offs, 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 instructi on 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 altho ugh an instruction regarding5 A - 3760
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inappropriate comments by bo th 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 t he theory of the case she had argued to the jury : that the Chart off s, Faria , and Ramirez had concocted a false narrative so Chart off 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, t he 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 CHAR T OFF AS AGENTS OF THE RIDGEFIELD HOSE COMP ANY 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 TH E 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 CHAR T OFF WAS AGAINST THE WEIGHT OF THE EVIDENCE AND RESULTED IN A MISCARRIAGE OF JUSTICE, COMPELLING A J NOV OR A NEW TRIAL.6 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 I nvitation.
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 C OUNSEL. 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.7 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 admiss ions 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 conduct ing 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, 3678 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 p roperty 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 p rovided 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 whether9 A - 3760
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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 fo und that
Andrew was presen t during the event solely to ensure the premises
were not damaged, and as a repres entative of the fire company. Accordingly, n either 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 bar e of any suggestion that Gary had any other involvement . Nothing in the record suggests that he even kn e w that alcohol would be served. Thus, he could not be found to have "legally provide[d] alcoholic beverages to another person[.]"10 A - 3760
- 14T2

Like his father , A ndrew had nothing to do with planning or preparation for the party . H is mere presence at the hall does not make him a person who " provided " alcohol to the guests. A s a matter of law based on un controverted facts , neither was a social
host. S ummary judgm ent was properly granted . C.

L ittle needs to be said about Keefe's claim that the gran t 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 t o establish th at the baby s hower was a "joint Chartoff family event [.] " That would have required entirely different circumstances than those we see in the record , however. H e nc e, the grant of s ummary 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 verdic t ( 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 inferences11 A - 3760
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which can be drawn from that evidence, su pport 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 positio n 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 pre sented 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. D iv. 2001) (citing R. 2:10
- 1). "This standard applies whether the motion is based upon a contention that the verdict was12 A - 3760
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against the weight of the evidence, or is based upon a contention that the judge's initial trial rulings resulted in prejudice to a
par ty." 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
resul t. 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. T here was no proof that Chartoff did anything more than print invitations and help in secur ing the hall . Chartoff had nothing to do with the creation of the guest list, the provision of food, or the provision of drinks. O f 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 any one with alcohol at the event.

A ccept ing Chartoff's evidence as true , and giv ing her the benefit of all favorable inferences, it does not appear that the jury
reached an unjust result. There was no evidence to support find ing
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 t he conscience of13 A - 3760
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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 the ir 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

sa me 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; if14 A - 3760
- 14T2 you answered "no" to th is question, then stop your deliberations, proceed no further and return your verdict.

T he jury decided that Chartoff was not a social host, and therefore stopped deliberations after the first question . T he argument raised by Keefe that the driver should not have been included on the later questions is essentially moot as t he jury
never reached those questions . Nonetheless, w e briefly reiterate well

- established legal principles. The court was required to include Faria under the
C omparative 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 ); s ee 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 by15 A - 3760
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personal injury plaintiff on behalf of settling defendants in order to bar allocation of fault to settling defendants), certif. denied , 189 N.J. 429 (2 007). 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 58 6 , the Court held this credit "is available in every case in which there are multiple
de fendants, 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 r e ached the pages of the verdict sheet that mention him, much less the question. In any event, th e 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 the y 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 of16 A - 3760
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t rial 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 t hese interruptions do no t 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 Kee f e '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 th at she intended
to draft an instruction advising the jury to ignore the statements . She later read the instruction, and allowed Kee f e '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 evid ence. 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 address17 A - 3760
- 14T2 something with you, the ju ry, 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 c ounsel 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 co unsel'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 pe rmitted 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 th at 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 a ttorneys 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 herself18 A - 3760
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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 PaineWebbe r, 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); s ee 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 couns el, "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' counse l "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'19 A - 3760
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and . . . based on trickery, shameful conduct, and the pull ing of 'stunts'").

W e cannot agree with Kee f e '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 comment ary , and made the issu ance of a jury instruction necessary. We also d is agree that Char t off 's attorney's summation just i fi ed t he response.

T he judge's i nstruction 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 b etween argument and evidence. T he judge reiterated that nothing " ei the r" attorney sa id in summation is evidence . T he judge ended wi t h "nothing that either attorney has said is binding upon you."

T he instruction was necessitated by Keefe's counsel's summation . It unde r scor ed that the arguments made by the attorneys20 A - 3760
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a re distinct and separate from the evidence , and that only the jury's independent assessment of that evidence determin ed the verdict , not the opinion of the judge or attorneys, or any comments the y m ay have made . V. Finally, we do not address Chartoff 's cross - appeal. It i s unnecessary in light of our decision to affirm the jury's verdict. Affirmed.