SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4054-16T3

J.L., a minor, and her parents,

K.L. and J.L.,

Plaintiffs-Appellants,

v.

KANDI PRESS in her individual 

and official capacities, JOAN

PABISZ-RUBERTON in her individual

and official capacities and 

HARRISON TOWNSHIP BOARD OF 

EDUCATION.

Defendants-Respondents.

________________________________

Submitted May 8, 2018 – Decided June 25, 2018

Before Judges Fasciale and Moynihan.

On appeal from Superior Court of New Jersey, 

Law Division, Gloucester County, Docket No. 

L-1192-16.

Jamie M. Epstein, attorney for appellants.

Lenox, Socey, Formidoni, Giordano, Cooley, 

Lang & Casey, LLC, attorney for respondents 

(Michael A. Pattanite, of counsel; Christina 

M. Matteo, 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NOT FOR PUBLICATION WITHOUT THE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-4054-16T3

Plaintiffs appeal from the trial court's orders of April 13, 

2017 denying their motion for reconsideration of a February 3, 

2017 order granting summary judgment to defendants and dismissing 

plaintiffs' complaint alleging a violation of the New Jersey Law 

Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, with 

prejudice.1 Plaintiffs' counsel — despite the grant of his request 

for an adjournment for fourteen days to file opposition — did not 

submit any to the summary judgment motion. We reverse and remand.

Plaintiff J.L. was a student in the Harrison Township school 

district with "cognitive, learning, hearing, and vision disorders" 

resulting from "anoxic events causing encephalopathy,"2 which she 

suffered as an infant. Prior to filing the now-dismissed 

complaint, she and her parents filed a due process petition with 

the New Jersey Department of Education (DOE), alleging violations 

of the Individuals with Disabilities in Education Act (IDEA), 20 

U.S.C. §§ 1400 to 1482, section 4 of the Rehabilitation Act (RA),

29 U.S.C. § 794, and the Americans with Disabilities Act (ADA),

 

1 Only the order denying the reconsideration motion is set forth 

in plaintiffs' notice of appeal; both orders are listed as appealed 

in their civil case information statement.

2 "Anoxia" is defined as, "Absence or almost complete absence of 

oxygen from inspired gases, arterial blood, or tissues." Stedman's 

Med. Dictionary 98 (28th ed. 2006). "Encephalopathy" is defined 

as "Any disorder of the brain." Id. at 636.
3 A-4054-16T3

42 U.S.C. §§ 12101 to 12213. Plaintiffs asserted that the Harrison 

Township Board of Education (Board), its school psychologist, 

Kandi Press, and its director of special education, Joan PabiszRuberton, failed to provide J.L. with services necessary for her 

to receive meaningful educational benefit, and failed to properly 

assess and accommodate her numerous disabilities, thus depriving 

her of a free appropriate public education (FAPE).3 The 

administrative law judge (ALJ) to whom the case was referred 

declared the case moot, concluding "a controversy no longer exists" 

because the Board voluntarily offered "an affirmative response to 

all of [plaintiffs'] demands as set forth in the petition."

Plaintiffs thereafter filed a complaint in federal district

court for relief under the LAD and for prevailing party attorneys' 

fees and costs pursuant to the IDEA and RA. The federal district 

judge, ruling on cross-motions for summary judgment, found 

plaintiff was a prevailing party for the purpose of awarding fees,

but also found a reduction in fees appropriate "given the bad 

faith conduct" of plaintiff's counsel. J.L. v. Harrison Twp. Bd. 

 

3 See 20 U.S.C. § 1400(d)(1)(A) (stating one purpose of the IDEA

is "to ensure that all children with disabilities have available 

to them a free appropriate public education that emphasizes special 

education and related services designed to meet their unique needs 

and prepare them for further education, employment, and 

independent living").
4 A-4054-16T3

of Educ. (J.L. I), No. 14-2666 RMB/JS, 2015 U.S. Dist. LEXIS 

112252, at *34 (D.N.J. Aug. 25, 2015). The district judge later 

"decline[d] to exercise supplemental jurisdiction over 

[p]laintiffs' only remaining state law [LAD] claim" pursuant to 

28 U.S.C. § 1367(c)(3).4 J.L. v. Harrison Twp. Bd. of Educ. (J.L. 

II), No. 14-2666 RMB/JS, 2016 U.S. Dist. LEXIS 110478, at *80-81 

(Aug. 19, 2016).

About a month later plaintiffs commenced this action.

Our analysis begins with the type of motion originally 

considered by the trial court. Both parties refer to the motion 

for summary judgment as one converted from a motion to dismiss 

pursuant to Rule 4:6-2 because the trial court was presented with 

seven documents that were outside the pleadings. The record, 

however, indicates otherwise. The notice of motion is for summary

judgment; all of the supporting documents reference summary 

judgment including the certification of counsel, brief, statement 

of undisputed material facts, proof of mailing and order. 

 

4 In that same opinion, the district judge reserved on the 

attorney's fees issue. Later, frustrated by plaintiffs' counsel's 

"repeated unreasonable protraction of [the] case and his bad faith 

conduct throughout the litigation," she issued another opinion 

holding "[t]he only right and just thing for [the] [c]ourt to do 

— if its grant of discretion is to mean anything — is to deny 

outright all fees." J.L. v. Harrison Twp. Bd. of Educ. (J.L. 

III), No. 14-2666 RMB/JS, 2017 U.S. Dist. LEXIS 71911, at *9, 17 

(D.N.J. May 11, 2017).
5 A-4054-16T3

Confusingly, the notice of motion provides in part, "[d]efendants 

file this motion as a [m]otion for [s]ummary [j]udgment, rather 

than a [m]otion for [s]ummary [j]udgment, because pursuant to

[Rule] 4:6-2(e), [d]efendants rely on materials outside of the 

pleadings." The trial court referred to the underlying motion in 

its decision as "a motion for summary judgment that has been filed 

by the attorney for [d]efendants Press, Ruberton and Harrison 

Township Board of Ed[ucation]." We conclude, as did the trial 

court, that the motion was for summary judgment and see no merit 

in plaintiffs' argument that the judge improperly converted a 

motion to dismiss to a motion for summary judgment.

The practice of filing and procedure for challenging a motion 

for summary judgment in lieu of filing an answer are long

recognized. Lenzner v. Trenton, 22 N.J. Super. 415, 424 (Law Div. 

1952). "A motion for summary judgment is not premature merely 

because discovery has not been completed, unless plaintiff is able 

to 'demonstrate with some degree of particularity the likelihood 

that further discovery will supply the missing elements of the 

cause of action.'" Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 

555 (2015) (quoting Wellington v. Estate of Wellington, 359 N.J. 

Super. 484, 496 (App. Div. 2003)). Although summary judgment 

should "normally . . . not be granted when discovery is 

incomplete," if the motion "turns on a question of law, or if 
6 A-4054-16T3

further factual development is unnecessary in light of the issues 

presented, then summary judgment need not be delayed." United 

Savs. Bank v. State, 360 N.J. Super. 520, 525 (App. Div. 2003).

Plaintiffs, who submitted no opposition to the motion, made no 

such showing.

After reviewing the procedural history and defendants' 

arguments in support of the summary judgment motion – there was 

never a judicial determination that J.L. was denied a FAPE by the

school district and plaintiffs failed to exhaust their 

administrative remedies — the trial court concluded:

In this matter there was no opposition. There 

was no counter argument. I should also note 

that this matter was adjourned one cycle to 

certainly provide greater opportunity for any 

opposition and none was forthcoming. So at 

this time this motion is granted and the 

complaint against the [d]efendants [Kandi] 

Press, Joan Pabisz-Ruberson and Harrison 

Township Board of Education is [hereby] 

dismissed with prejudice so ordered.

So too, in deciding the motion for reconsideration, the trial 

court focused on plaintiffs' counsel's dilatory conduct – both 

before it and in the United States District Court as there noted 

by the District Court judge — in finding the motion for 

reconsideration was not supported by excusable neglect.

A motion for reconsideration is committed to the sound 

discretion of the court, which should be "exercised in the interest 
7 A-4054-16T3

of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. 

Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401

(Ch. Div. 1990)). Reconsideration is appropriate only when a 

court has rendered a decision "based upon a palpably incorrect or 

irrational basis," or failed to consider or "appreciate the 

significance of probative, competent evidence." Ibid. (quoting 

D'Atria, 242 N.J. Super. at 401). We review the grant of summary

judgment de novo, applying the same standard as the trial court.

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

must determine whether the competent evidence presented, "when 

viewed in the light most favorable to the non-moving party, [is] 

sufficient to permit a rational factfinder to resolve the alleged 

disputed issue in favor of the non-moving party." Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We also 

review the trial court's legal conclusions de novo. Manalapan 

Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We determine the trial court abused its discretion in denying 

the motion for reconsideration because its decision was based on 

counsel's conduct and not, at least as we can perceive from the 

record, on a legal basis correlated to the facts as required by 

Rule 1:7-4(a).

Even an unopposed motion must be thoroughly reviewed on the 

merits. In a matter where an attorney failed to answer a complaint 
8 A-4054-16T3

resulting in the denial of a motion to file out-of-time and a 

subsequent default judgment, we said:

We appreciate the desirability of the 

prompt disposal of cases. Courts should not 

forget, however, that they merely provide a 

disinterested forum for the just resolution 

of disputes. Ordinarily, the swift movement 

of cases serves the parties' interests, but 

the shepherding function we serve is abused 

by unnecessarily closing the courtroom doors 

to a litigant whose only sin is to retain a 

lawyer who delays filing an answer during 

settlement negotiations.

[Audubon Volunteer Fire Co. No. 1 v. Church 

Constr. Co., 206 N.J. Super. 405, 406 (App. 

Div. 1986).]

We then listed the recourse available to judges dealing with 

"slowdowns," concluding "[u]ntil courts have exhausted means of 

performing their shepherding function which do not terminate or 

deeply affect the outcome of a case, they ought not to bar a 

litigant's way to the courtroom." Id. at 407; see also Automatic 

Washer Serv., Inc. v. Brunswick Burlington, Inc., 153 N.J. Super. 

343, 346 (App. Div. 1977) (holding that although counsel failed 

to respond to summary judgment and "walked in on the morning of 

court and was late at that and wanted to be heard even after the 

matter was disposed of," his conduct "warrant[ed] the imposition 

of sanctions by the court rather than dismissal of the pleadings").

We appreciate the trial court's frustration with plaintiffs' 

counsel's conduct. Plaintiffs, however, were entitled to the 
9 A-4054-16T3

trial court's consideration of the merits of the case where 

defendant contends summary judgment was properly granted because 

there was never a judicial determination that J.L. was denied a 

FAPE and that plaintiffs failed to exhaust their administrative 

remedies. We acknowledge a full study of these issues under the 

facts of this case will not be a facile task.

We previously recognized the interplay of the RA and ADA in 

determining the extent of protections provided by the LAD. J.T. 

v. Dumont Pub. Schs., 438 N.J. Super. 241, 263 (App. Div. 2014). 

Among the elements a plaintiff must show to establish a prima 

facie LAD failure-to-accommodate case is that the disabled student 

"was deprived 'a cognizable benefit or program.'" Id. at 264.

"[W]hen a LAD discrimination claim concerns the special education 

benefits and related services available to a child under the IDEA, 

the program or benefit used to determine the prima facie test for 

disability discrimination is the provision of a FAPE." Id. at 

265.

Although ordinarily a plaintiff need not exhaust 

administrative remedies prior to bringing a LAD action, Hernandez 

v. Region Nine Hous. Corp., 146 N.J. 645, 652-53 (1996); Ensslin 

v. Twp. of N. Bergen, 275 N.J. Super. 352, 372 (App. Div. 1994), 

"when the dispute is based upon benefits provided pursuant to the 

IDEA, the LAD claim is coextensive with the IDEA . . . claim[],"
10 A-4054-16T3

J.T., 438 N.J. Super. at 268. Plaintiffs may not "make an end run 

around the IDEA['s exhaustion requirement] by dismissing the 

[administrative claim] and repackaging the claim . . . under the 

LAD." Id. at 267.

One of the questions here is, did plaintiffs make an end run? 

They filed a due process action. Although the ALJ never found 

that J.L. was denied a FAPE, his full decision was obviated by the 

Board's acquiescence to plaintiffs' demands for J.L. The ALJ 

found that the Board: "will complete evaluations regarding 

[a]ssistive technology, [v]ocational[] [s]peech pathology, 

[p]hysical therapy and [o]ccupational therapy"; "will amend J.L.'s 

[individualized education plan] to incorporate the recommendations 

set forth in the evaluations completed to date, including 

accommodations and placements set forth therein"; "will include 

J.L. in its [e]xtended [s]chool [y]ear [p]rogram"; "will [provide 

J.L. with one hundred] half-hour sessions [of compensatory 

occupational therapy], even though only [eighty] sessions were 

recommended in the [o]ccupational [t]herapy evaluation"; shall 

"reimburse J.L.'s parents for [the full amount of] expenses 

incurred for services and evaluations"; and "will not release 

J.L.'s records without parental consent." 

Given that, as conceded by defendants in their merits brief, 

"[p]laintiffs were eligible for attorney's fees as 'prevailing 
11 A-4054-16T3

parties' since the [Board] offered them the relief sought in the 

[d]ue [p]rocess [p]etition," and the ALJ "found all the demands 

made by [plaintiffs] in their petition for due process had been 

voluntarily offered," the question is: was there a reason or basis 

to appeal the ALJ's decision as defendants contend was a prerequisite to pursuing plaintiffs' state-court action? Did 

plaintiffs, by bringing a due process action, and settling the 

case, exhaust administrative remedies? And even if the ALJ was 

compelled to determine whether J.L. received a FAPE, would the 

decision have encompassed the same time frame as that for which 

plaintiffs seek damages under the LAD or would the period have 

been limited to the time the petition was filed? Further, can 

defendants avoid LAD liability by settling the due process matter

and agreeing to provide services not previously supplied to J.L., 

thereby precluding a FAPE determination by the ALJ? 

These are among the issues that needed to be addressed in 

deciding the summary judgment motion. Deciding this motion 

requires more than simply addressing "a single, lingering issue," 

and although the case has previously come before an administrative 

body and Federal District Court, it does not currently present a 

threat of perpetual, lengthy or burdensome litigation. Allstate 

Ins. Co. v. Fisher, 408 N.J. Super. 289, 301-02 (App. Div. 2009). 

We thus decline to exercise original jurisdiction under Rule 2:10-
12 A-4054-16T3

5; "the necessary factual findings and legal conclusions are best 

made by the trial judge." Id. at 302.

"Appellate review . . . 'does not consist of weighing evidence 

anew and making independent factual findings; rather, our function 

is to determine whether there is adequate evidence to support the 

judgment rendered' by the trial court." Ibid. (quoting Cannuscio 

v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 

1999)). We remand so that the issues raised can "be first decided 

by the motion judge, with an accompanying statement of reasons," 

id. at 303, fully articulating of the trial court's factual 

findings and correlative conclusions of law, without which we 

cannot know whether the court's ultimate decision was based on 

fact and law or was the product of arbitrary action resting on an 

impermissible basis, R. 1:7-4. We leave to the discretion of the 

trial judge whether to allow plaintiffs to file a response, with 

or without sanctions.

We decline to address plaintiffs' argument that the trial 

court dismissed their complaint "without performing its parens 

patriae responsibility" as that issue was not raised before the 

trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 

(1973).

Reversed and remanded. We do not retain jurisdiction.