SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 4588
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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. L
0 272
- 14. Matthew A. Peluso, appellant/cross

- respondent, argued the cause pro se . Jerrold Kamensky argued the cause for respondents/cross

- appellants (Ka mensky, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " 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 - 4588
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This matter arises out of a hotly
- litigated landlord
- tenant relationship between plaintiff
- lawyer and tenant, Matthew Peluso,
and landlord s , 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 . P laintiff’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 h alf and repeated requests that plaintiff remove the vehicle from the premises, defendants had the car tow ed 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 perfor m 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, p laintiff declined the
offer , and filed a complaint alleging the following claims: (1)3 A - 4588
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br each of contract; (2) c o nsumer f raud; (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 sche dule 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 noti ced 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 discov ery. 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 Co nduct (RPC) . On June 18, 2015, the court granted defendants’ motion to compel plaintiff’s deposition and discovery. The court ordered4 A - 4588
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that plaintiff and defendants appear for deposition on July 10, 2015, and that plaintiff provide information “corroborat ing 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) vacat e 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, inc luding 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 f or 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 c omplaint with prejudice; (2) award counsel fees; (3) compel discovery ; and ( 4) issue a summary contempt ord er against plaintiff. On September 16, 2015, the court entered an order dismiss ing the complaint without prejudice and ordered plaintiff to appear for a de position within thirty days of the o rder as a precondition to reinstate the complaint. The court o rdered defendant s to give plaintiff three dates to choose from for his deposition. We denied5 A - 4588
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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 1 4, 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 f or reinstating the complaint . A judgment in that amount was also entered against plaintiff. The court denied without prejudice d efendants' request s for sanctions for frivolous litigation pursuant to Rule 1:4
- 8 , and that plaintiff be held in6 A - 4588
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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 f urther 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 a ttorney'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 m otion to compel discovery pursuant to Rule s 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
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RPC 1.5(a) lists the eight “factors to be considered in determin ing
the reasona bleness 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 reconsideratio n f or 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 (Ap p. 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 irra tional 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 over heated 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 placed8 A - 4588
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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.