SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4588-15T1

MATTHEW A. PELUSO,

Plaintiff-Appellant/

Cross-Respondent,

v. 

MORTON BARNETT, individually, 

and in his capacity as owner

of BARNETT REALTY; and BARNETT

REALTY,

Defendants-Respondents/

Cross-Appellants.

________________________________

Argued May 23, 2018 — Decided June 26, 2018

Before Judges Koblitz, Manahan and Suter.

On appeal from Superior Court of New Jersey, 

Law Division, Hunterdon County, Docket No. L0272-14.

Matthew A. Peluso, appellant/cross-respondent, 

argued the cause pro se.

Jerrold Kamensky argued the cause for 

respondents/cross-appellants (Kamensky, Cohen 

& Riechelson, and Gerald B. Schenkman,

attorneys; Gerald B. Schenkman and Jerrold 

Kamensky, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4588-15T1

This matter arises out of a hotly-litigated landlord-tenant 

relationship between plaintiff-lawyer and tenant, Matthew Peluso, 

and landlords, Morton Barnett, aged eighty-five, and Barnett 

Realty. We affirm on the appeal and cross-appeal.

It all began in October 2012 when Hurricane Sandy toppled the 

landlords' tree onto plaintiff's car, which was parked in the 

apartment lot. Plaintiff’s “totaled” car was left occupying one 

of two dedicated parking spots in the small lot. Plaintiff asked 

for his $500 insurance deductible to be paid by defendants as a 

condition for removing his car, which defendants declined. After 

a year and half and repeated requests that plaintiff remove the 

vehicle from the premises, defendants had the car towed to a nearby 

gas station. In response, plaintiff sent a letter to the gas 

station owner warning him not to discuss the car with defendants 

or perform any work or maintenance on the vehicle and threatening 

criminal charges.

Upon learning of plaintiff’s letter, defendants served 

plaintiff with an eviction notice. In response to the eviction 

notice, plaintiff paid all past due rent and sent a letter to

defendants threatening to file suit. Plaintiff asked defendants 

to return his vehicle or pay the $500 purchase price. When 

defendants finally offered to pay $500, plaintiff declined the 

offer, and filed a complaint alleging the following claims: (1) 
3 A-4588-15T1

breach of contract; (2) consumer fraud; (3) conversion and civil 

theft; (4) property damage; (5) breach of contract – tenancy; (6) 

common law fraud; and (7) wrongful eviction. 

After suit was initiated, plaintiff evaded defendants’ 

repeated attempts to schedule his deposition. On December 11, 

2014, the court ordered plaintiff to schedule his deposition on a 

date of his choosing in February 2015. Plaintiff did not comply 

with this order and subsequently postponed multiple deposition 

dates that had been noticed by defendants. Plaintiff asserted 

that the December 11, 2014 order was mooted by subsequent motions 

that were filed by both parties in February 2015. 

On April 22, 2015, defendants filed a motion to compel 

plaintiff’s deposition and additional discovery. Plaintiff filed 

a cross-motion, asking the court to (1) deny defendant’s motion 

to compel; (2) compel defendants to produce their answers to 

interrogatories and other relevant discovery; (3) schedule the 

parties’ depositions after defendants provided responsive 

discovery; and (4) award attorney fees. On May 7, 2015, defendants 

filed a twenty-page reply brief, outlining the history of the 

case, plaintiff’s failures to provide discovery and plaintiff’s 

alleged violations of the Rules of Professional Conduct (RPC).

On June 18, 2015, the court granted defendants’ motion to 

compel plaintiff’s deposition and discovery. The court ordered 
4 A-4588-15T1

that plaintiff and defendants appear for deposition on July 10, 

2015, and that plaintiff provide information “corroborating his 

unavailability to attend prior depositions.” 

On July 9, 2015, plaintiff filed a motion seeking to: (1)

disqualify the court from any further involvement in this case; 

(2) vacate the June 18, 2015 orders by the court; (3) quash 

defendants’ July 10, 2015 deposition notice; (4) compel defendants 

and their counsel to provide plaintiff with all information, 

documentation and tangible things in their possession relevant to 

this matter, including all alleged photographs, tape and video 

recordings of plaintiff and all reports by the alleged private 

investigators; (5) stay all depositions pending defendants’ 

compliance with the prior request; (6) reconsider and grant 

plaintiff’s prior motion for a protective order; and (7) award

attorney fees. On July 30, 2015, defendants filed a cross-motion 

asking the court to: (1) dismiss plaintiff’s complaint with 

prejudice; (2) award counsel fees; (3) compel discovery; and (4) 

issue a summary contempt order against plaintiff. 

On September 16, 2015, the court entered an order dismissing

the complaint without prejudice and ordered plaintiff to appear 

for a deposition within thirty days of the order as a precondition 

to reinstate the complaint. The court ordered defendants to give 

plaintiff three dates to choose from for his deposition. We denied 
5 A-4588-15T1

plaintiff's motion for leave to appeal this interlocutory order 

on November 16, 2015.

Plaintiff did not appear for his deposition. As a result, 

defendants filed another motion on October 22, 2015, seeking to 

dismiss plaintiff’s complaint with prejudice for failure to 

comply. Plaintiff filed no timely substantive opposition to the 

motion. 

Having not received opposition, the court informed the 

parties by letter on December 1, 2015, that the matter would be 

decided on the adjourned December 4, 2015 return date. Plaintiff 

objected, requesting that he be given the opportunity to file 

opposition and appear for oral argument. Given the significance 

of the motion and relief sought, the court carried the motion 

again. The court granted defendants' motion to dismiss plaintiff’s 

complaint with prejudice on December 23, 2015. 

Plaintiff filed for reconsideration of the dismissal, which 

was granted by the motion court on March 14, 2016. The court 

vacated the dismissal with prejudice, and instead mandated that 

plaintiff pay $16,819.31 in attorney’s fees and costs as a 

condition for reinstating the complaint. A judgment in that amount 

was also entered against plaintiff. The court denied without 

prejudice defendants' requests for sanctions for frivolous 

litigation pursuant to Rule 1:4-8, and that plaintiff be held in 
6 A-4588-15T1

contempt and referred to the ethics committee. A May 16, 2016

order denied plaintiff’s subsequent motion for reconsideration of 

the court's March 14, 2016 order and denied defendants' request 

that plaintiff's conduct be reported to the Prosecutor and the 

District XIII Ethics Committee. Defendants filed a motion for 

sanctions, contempt findings and misconduct referrals, which was 

denied by the court on August 10, 2016 for the reasons placed on 

the record on August 5. Plaintiff appeals from the May 16, 2016 

denial of further reconsideration. Defendants cross-appeal from 

the August 10, 2016 denial.

We review an award of attorney's fees for abuse of discretion. 

Noren v. Heartland Payment Sys., Inc., 448 N.J. Super. 486, 497 

(App. Div. 2017). Determinations regarding attorney's fees will 

be disturbed "only on the rarest of occasions, and then only 

because of a clear abuse of discretion." Litton Indus., Inc. v. 

IMO Indus., Inc., 200 N.J. 372, 386 (2009).

A court may award attorney’s fees incurred in connection with 

a motion to compel discovery pursuant to Rules 4:23-1(c) and 4:23-

2. Rule 4:42-9(b) provides that an application for counsel fees 

shall be supported by an affidavit addressing pertinent factors, 

including those in RPC 1.5(a), and shall include the amount of 

fees and disbursements sought. RPC 1.5(a) states that a “lawyer’s 

fee shall be reasonable" in all cases, not just fee-shifting cases. 
7 A-4588-15T1

RPC 1.5(a) lists the eight “factors to be considered in determining 

the reasonableness of a fee.” The motion court carefully reviewed 

each of the factors and placed its findings on the record.

Plaintiff appeals from the denial of his motion to reconsider 

the award of counsel fees. We review the court's denial of 

reconsideration for abuse of discretion. Cummings v. Bahr, 295 

N.J. Super. 374, 389 (App. Div. 1996). Reconsideration is "a 

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

in the interest of justice[.]" Palombi v. Palombi, 414 N.J. Super. 

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

Super. 392, 401 (Ch. Div. 1990)). 

Governed by Rule 4:49-2, reconsideration is appropriate for 

a "narrow corridor" of cases in which either the court's decision 

was made upon a "palpably incorrect or irrational basis," or where 

"it is obvious that the [c]ourt either did not consider, or failed 

to appreciate the significance of probative, competent evidence." 

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

 Judge Michael F. O'Neill exercised great patience and 

temperance throughout this overheated litigation. He did not 

abuse his discretion in denying reconsideration of the award of 

counsel fees, nor in denying defendants' application for sanctions 

or a judicial referral. See Code of Judicial Conduct, Canon 

3.15(B). We affirm substantially for the thorough reasons placed 
8 A-4588-15T1

on the record by Judge O'Neill on May 13 and August 5, 2016. Any 

remaining arguments made by the parties are without sufficient 

merit to require a written discussion. R. 2:11-3(e)(1)(E).

Affirmed.