SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0818-18T2

ROSEMARY J. FISHER, 

Plaintiff-Appellant,

v.

YUM YUM BAGEL CAFÉ,

KSAN, LLC, STATE OF NEW 

JERSEY, COUNTY OF 

BERGEN, and BOROUGH OF 

CLIFFSIDE PARK,

Defendants-Respondents.

_____________________________

Submitted March 4, 2020 – Decided March 23, 2020

Before Judges Whipple, Gooden Brown, and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-5469-16.

Law Offices of Rosemary Arnold, attorneys for 

appellant (Natalie A. Zammitti Shaw and William R. 

Stoltz, on the briefs). 

Law Offices of Stephen C. Cahir, attorneys for 

respondent Borough of Cliffside Park (Stephen C. 

Cahir, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Plaintiff Rosemary Fisher appeals from a September 28, 2018 order 

barring her expert's testimony and the resultant dismissal of her tort claims 

against defendant Borough of Cliffside Park, related to a slip and fall accident. 

We affirm.

In 2015, plaintiff traveled to the United States from England to vacation 

in New York City. She stayed in Cliffside Park. She was seventy-five years old 

at the time. 

On the day of her accident, plaintiff was returning from a visit to New 

York City and walking down Anderson Avenue toward her residence when her 

"right foot was caught" on the raised edge surrounding a ramp and she began to 

fall. She testified she tried to catch herself with her left foot, but there was 

debris on the ramp, causing her foot to slip. She landed on her left knee and 

right wrist. Plaintiff was wearing boots with a flat rubber sole and carrying 

groceries in a bag she described as "fairly heavy." 

According to plaintiff, the ramp was "a pink-ish, orange-ish color[] . . . 

with little pimples on it, but around the ramp was a cement surround," which is 

the part that caught her foot. The ramp was part of the sidewalk abutting the 

crosswalk allowing for handicap access to the crosswalk and street. The 
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building abutting the location of the slip-and-fall is a commercial building 

owned by KSAN, LLC and rented by a business tenant, Yum Yum Bagel Café. 

Plaintiff filed a complaint naming Yum Yum Bagel Café and KSAN, LLC. 

During discovery, she learned neither of these defendants installed the ramp, 

and instead Boswell Engineering, the Borough Engineer for Cliffside Park, 

oversaw the ramp installation. Plaintiff amended her complaint to name the 

County of Bergen and Cliffside Park as defendants. 

Later, a voluntary dismissal without prejudice was entered in favor of 

Bergen County, and KSAN and plaintiff settled her claims resulting in a 

dismissal of KSAN from the case. After initial dates for the trial were 

unsuccessfully set for May 2018 and then June 2018, a final trial date was set 

for September 18, 2018. 

Plaintiff's liability expert was George Gianforcaro, a licensed engineer. 

He inspected the portion of the sidewalk in question in October and November 

2017. He also consulted plaintiff's answers to interrogatories and relied on her

account of what happened, which she relayed during one of the site inspections. 

During a de bene esse deposition, Forcaro addressed his report, which 

stated: 

The [c]urb [r]amp is installed diagonally toward 

the intersecting streets and Anderson Avenue and 
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Lawton Avenue. The [c]urb [r]amp slopes downward 

from the high point of the [p]ublic [w]alkway to the 

[r]oadway [c]urb for Anderson Avenue. The [s]lope of 

the [r]amp is [one half] inch vertically to every twelve 

. . . inches horizontally, (the ADA [r]amp requirement 

is [one] inch vertically to every twelve . . . inches 

horizontally). The width of the [s]idewalk along 

Anderson Avenue, at the top of the [c]urb is [nine] feet-

[three] inches in width. The width of the [s]idewalk 

along Lawton Avenue is [nine] feet. 

The [c]oncrete [b]order that encompasses the 

ADA [w]arning [p]ad is [six] inches wide. The ADA 

[w]arning [p]ad measures [forty-eight] inches wide by 

[twenty-four and three-fourths] inches long. The 

[twenty-four and three-fourths] inch dimension is the 

direction off the downward slope of the [r]amp. 

The [t]op [su]rface of the [c]oncrete [b]order was 

constructed at a higher elevation than the [t]op [s]urface 

of the [b]rick [p]avers that are constructed adjacent to 

the [c]oncrete [b]order. The [s]outh[w]est [c]orner of 

the [c]oncrete [b]order is one . . . inch higher, i.e. 

[c]hange in [l]evel, than the [a]djacent [b]rick [p]avers. 

It is at this location, the [c]hange in [l]evel where 

[plaintiff]'s accident took place. 

At the time of my inspection, I inspected similar 

[c]urb [r]amps/[p]ublic [w]alkways [s]idewalks that are 

constructed on the [s]outheast [c]orner of Anderson 

Avenue and Lawton Avenue. 

The [c]oncrete [b]order that [e]ncompasses the 

ADA [w]arning [p]ad, at these two . . . locations, are 

constructed on an even, level, and uniform place with 

the [t]op [s]urfaces of the [b]rick [p]avers that are 

constructed adjacent to the [c]oncrete [b]order.
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He then concluded: 

It is this [e]ngineer's opinion, based on my 

education, experience, research and inspection and as a 

[l]icensed [u]niform [c]ode [c]onstruction [c]ode 

[o]fficial, [b]uilding [s]ubcode [o]fficer and building 

[i]nspector in the State of New Jersey, that the 

[p]roperty [o]wners, the [t]enants and/or its [a]gents 

and the Borough of Cliffside Park, (See Ordinance of 

the Borough of Cliffside Park, Chapter XXII, Property 

Maintenance Code; Section 2203, Applicability) and 

the Borough of Cliffside Park, (See Ordinance of the 

Borough of Cliffside Park, Chapter XXIII, Streets and 

Sidewalk; Section 13-1.17; Section 13-1.18 Police 

Department) did not properly [c]onstruct and did not 

properly [m]aintain the [p]ublic [s]idewalk, i.e. [c]urb 

[r]amp, where [plaintiff]'s accident occurred. The 

[c]oncrete [b]order that encompasses the ADA 

[w]arning [p]ad has been constructed at a higher 

elevation than the [b]rick [p]avers created a dangerous 

hazardous, negligent and palpably unreasonable 

condition for the person or persons attempting to 

traverse the [p]ublic [s]idewalk. The [c]oncrete 

[b]order and the [b]rick [p]avers in the [p]ublic 

[s]idewalk created a [w]alking [s]urface that is not on a 

level, even and uniform plane with the adjacent 

[w]alking [s]urfaces in the [p]ublic [s]idewalk. It is in 

the [e]ngineer's opinion that this condition has existed 

for a long period of time. This condition has existed 

since the [o]riginal [c]onstruction of the [c]urb [r]amp, 

which is a period of more than two . . . to three . . . 

years, (See the Ordinance of the Borough of Cliffside 

Park Chapter XIII, Streets and Sidewalks; Section 13-

1.17 Supervision; Section 13-1.18 Police Department). 

The [b]rick [p]avers and the adjacent [c]oncrete 

[b]order along the [s]urface of the [p]ublic [s]idewalk 

not being on a level, even and uniform place is a [c]ode 

[v]iolation. To [c]ompound the dangerous hazardous, 
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negligent and palpably unreasonable conditions, the 

[p]roperty [o]wners, the [t]enants, and/or its [a]gents 

and the Borough of Cliffside Park failed to provide a 

[r]easonably [s]afe [p]ublic [s]idewalk to meet with the 

[r]equirements of the [c]odes, (See the ordinance of the 

Borough of Cliffside Park, Chapter XIII, Streets and 

Sidewalks; Section 13-1.17 Supervision; Section 13-

1.18 Police Department, Chapter XXII Property 

Maintenance Code; Section 22-3 Applicability). The 

Excessive amount of gravel also indicates a failure to 

maintain, repair, and/or inspect, which was the 

responsibility of the [p]roperty [o]wners, the [t]enants 

and/or its [a]gents and the Borough of Cliffside Park. 

. . . .

[A]nd based on a reasonable degree of 

[e]ngineering certainty, that the proximate cause of 

[plaintiff]'s accident was due to [b]rick [p]avers and the 

[c]oncrete [b]order that encompasses the ADA 

[w]arning [p]ad, not being properly [c]onstructed and 

not being properly [m]aintained, along with the [l]oose 

[g]ravel on the [p]ublic [s]idewalk. The [s]ection of the 

[p]ublic [s]idewalk where [plaintiff]'s accident 

occurred is where the [b]rick [p]avers are not on a level, 

even and uniform plane with the adjacent [c]oncrete 

[s]urface, which [b]orders and encompasses the ADA 

[w]arning [p]ad, along with the [l]oose [g]ravel on the 

[p]ublic [s]idewalk cause [her] to trip, stumble, and fall 

to the ground causing injury to her body. The 

[p]roperty [o]wners, the [t]enants, and/or its [a]gents 

and the Borough of Cliffside Park (See the Ordinance 

of the Bourough of Cliffside Park, Chapter XXII, 

Property Maintenance Code; Section 22-3 

Applicability) and the Borough of Cliffside Park (See 

the Ordinance of the Borough of Cliffside Park Chapter 

X[III], streets and Sidewalks; Section 3:1.17 

Supervision; Section 13-1.18 Police Department) knew 
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of should have known that the [b]rick [p]avers and 

[c]oncrete [b]order was improperly constructed and 

that this improperly [c]onstructed [w]alkway created a 

[w]alking [s]urface that is a dangerous hazardous, 

negligent and palpably unreasonable condition and that 

this dangerous hazardous, palpably unreasonable 

condition is the result of improper [c]onstruction and 

improper [m]aintenance over the past two . . . to three 

. . . years or longer (See the Ordinance of the Borough 

of Cliffside Park, Chapter XIII, streets and Sidewalks; 

Section 13-1.17 Supervisions; and the State of New 

Jersey Uniform Construction Code; Subchapter 7, 

barrier Free Subcode; and the International Code 

Council, ICC/ANSI, A117.1, Accessible and Usable 

Buildings and Facilities, Chapter 3 Building blocks; 

Chapter 4 Accessible Routes). The improper 

[c]onstruction and improper [m]aintenance for the 

[p]ublic [s]idewalk introduces hazards that create the 

probability of a trip, stumble and fall down accident, 

such as [plaintiff]'s accident. The [c]oncrete [b]order 

for the ADA [w]arning [p]ad being at a higher elevation 

than the [b]rick [p]avers is not caused by ordinary wear 

and tear. The [b]rick [p]avers in the [p]ublic [s]idewalk 

are most likely caused by the improper construction 

that was performed by the [c]ontractor for the Borough 

of Cliffside Park's failure to provide a reasonably safe 

sidewalk. The [p]roperty [o]wners, the [t]enants and/or 

its [a]gents and the Borough of Cliffside Park did not 

[p]roperly [m]aintain the [p]ublic [s]idewalks, i.e., the 

[l]oose [g]ravel on the [s]idewalk and the Borough did 

not properly [c]onstruct the [p]ublic [s]idewalk, i.e. the 

[c]urb [r]amp. The [p]roperty [o]wners, the [t]enants, 

and/or its [a]gents and the Borough of Cliffside Park 

allowed the [c]oncrete [b]order which [e]ncompasses 

the ADA [w]arning [p]ad to be constructed at a higher 

elevation than the adjacent [b]rick [p]avers, which 

failed to provide a [r]easonably [s]afe [s]idewalk to 
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exist at the time of [plaintiff]'s accident, thus causing 

[her] accident. 

. . . .

[I]t should have been foreseeable to the [p]roperty 

[o]wners, the [t]enants, and/or its [a]gents and the 

Borough of Cliffside Park that the [p]ublic [s]idewalk 

created an uneven walking surface which is in the 

[p]ublic [w]alking [a]rea. It should have also been 

foreseeable that the [c]oncrete [b]order for the ADA 

[w]arning [p]ad in the [p]ublic [s]idewalk being at a 

higher elevation than the [b]rick [p]avers, along with 

the [l]oose [g]ravel will create dangerous hazardous, 

negligent and palpably unreasonable conditions that 

will cause trips and fall down accidents for a person or 

persons traversing the [p]ublic [s]idewalk, as in this 

[c]ase, [plaintiff]'s trip and fall down accident. The 

[p]roperty [o]wners, the [t]enants, and/or its [a]gents 

and the Borough of Cliffside Park could have and 

should have noticed the [c]oncrete [b]order was at 

higher elevation than the adjacent [b]rick [p]avers 

along with the [l]oose [g]ravel on the [s]idewalk long 

before [plaintiff]'s accident, (See the Ordinances of 

Borough of Cliffside Park Chapter XIII, Streets and 

Sidewalks; Section 13-1.17 Supervision; Section 

1301.18 Police Department). The [p]roperty [o]wners, 

the [t]enants, and/or its [a]gents and the Borough of 

Cliffside Park could have and should have removed the 

[b]rick [p]avers and reconstructed the [b]rick [p]avers 

to the level uniform plane with the [s]urfaces of the 

[c]oncrete [b]order at the ADA [w]arning [p]ad, long 

before [plaintiff]'s accident. At a minimum, the 

[p]roperty [o]wners, the [t]enants, and/or its [a]gents 

and the Borough of Cliffside Park could have a should 

have simply constructed the [c]oncrete [b]order at this 

location similar to the [c]oncrete [b]order at the other 

two locations which has been properly constructed. 
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On July 21, 2018, defendant filed a motion to bar Gianforcaro from 

testifying and for summary judgment. The motion was denied as untimely. 

On the first day of trial, defendant filed a motion in limine, renewing its 

motion to bar the expert testimony. Defendant's trial memorandum contained

similar arguments as in the motion. The trial judge granted the motion in limine. 

During the trial, plaintiff testified regarding her recollection of the fall. 

Plaintiff called Ann Daniels, who was at the scene that day and stated she did 

not see the accident. Plaintiff also called Naham Barouk, the principal of the 

entity that owned the property abutting the sidewalk near the accident, and John 

Englese, an employee of Boswell Engineering. At the close of plaintiff's case, 

the trial judge granted defendant's motion for judgment dismissing plaintiff's 

claims against defendant. 

"The admission or exclusion of expert testimony is committed to the 

sound discretion of the trial court. As a discovery determination, a trial court's 

grant or denial of a motion to strike expert testimony is entitled to deference on 

appellate review." Townsend v. Pierre, 221 N.J. 36, 52 (2015) (internal citations 

omitted). Where we are asked to review a motion for an involuntary dismissal, 

we apply the standard applied by the trial court. Sickles v. Cabot Corp., 379
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N.J. Super. 100, 106 (2005). Therefore, our review is de novo. C.W. Cooper 

Health Sys., 388 N.J. Super. 42, 57 (App. Div. 2006). 

Plaintiff argues the trial judge erred in barring Gianforcaro on grounds of

net opinion. She contends the judge's decision prevented her from raising other 

triable issues of fact as to defendant's liability. She argues defendant's in limine 

motion was untimely and a repeat of the motion for summary judgment which 

was previously denied. 

Although a trial judge "retains the discretion, in 

appropriate cases, to rule on the admissibility of 

evidence pre-trial," . . . we have cautioned that 

"[r]equests for such rulings should be granted only 

sparingly." This is particularly true when the "motion 

in limine" seeks the exclusion of an expert's testimony, 

an objective that has the concomitant effect of 

rendering a plaintiff's claim futile.

. . . It is not a summary judgment motion that happens 

to be filed on the eve of trial. When granting a motion 

will result in the dismissal of a plaintiff's case or the 

suppression of a defendant's defenses, the motion is 

subject to Rule 4:46, the rule that governs summary 

judgment motions.

[Seoung Ouk Cho v. Trinitas Reg'l Med. Ctr., 443 N.J. 

Super. 461, 470-71 (App. Div. 2015) (internal citations 

omitted).] 

Rule 4:46-1 states in pertinent part: 

All motions for summary judgment shall be returnable 

no later than [thirty] days before the scheduled trial 
11 A-0818-18T2

date, unless the court otherwise orders for good cause 

shown, and if the decision is not communicated to the 

parties at least [ten] days prior to the scheduled trial 

date, an application for adjournment shall be liberally 

granted.

Our concern for adherence to the temporal nature of motions in limine is 

so as not to deprive the party defending the motion of due process. Cho, 443 

N.J. Super. at 473-74. However, due process is not a fixed concept mandating 

that rigid requirements must be met in every case, but rather "the time 

requirements for the filing and decision of summary judgment motions provide 

a useful background for assessing whether plaintiffs had an opportunity to be 

heard at a meaningful time and in a meaningful manner." Ibid.

In Cho, the defendant filed a motion in limine on the eve of trial, seeking 

dismissal of the plaintiff's claims based on the prior barring of plaintiff's expert, 

which the judge granted. Id. at 465-67. We reversed and held 

our commitment to the fair administration of justice 

demands that we protect a litigant's right to proceed to 

trial when he or she has not been afforded the 

opportunity to respond to dispositive motions at a 

meaningful time and in a meaningful manner. We 

therefore hold that the resulting dismissal of a 

complaint deprives a plaintiff of due process of law. 

[Id. at 474-75.]

 
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The facts here differ from Cho because defendant filed an initial motion 

for summary judgment before the trial, and the in limine motion was the same 

motion. Therefore, despite the lack of timeliness, plaintiff was not deprived of 

due process having previously seen and contested the contents of defendant's 

motion. 

Moreover, we disagree with plaintiff's argument that an adjournment of 

the motion would yield a different result. Discovery closed and plaintiff was 

bound to her expert's opinion, which was clearly a net opinion and fatal to her 

ability to present a theory on liability. 

An expert must be able to "identify the factual bases for their conclusions, 

explain their methodology, and demonstrate that both the factual basis and 

methodology are reliable." Townsend, 221 N.J. at 55 (internal citation and 

quotations omitted). An expert's opinion will be "excluded if it is based merely 

on unfounded speculation and unqualified possibilities." Ibid. (internal citations 

and quotations omitted). 

Here, Gianforcaro opined that: (1) defendant was negligent in the 

construction of the sidewalk where plaintiff fell; (2) the sidewalk was dangerous 

since its construction; (3) defendant was on notice of the dangerous condition; 

and (4) the sidewalk's condition was palpably unreasonable. However, his 
13 A-0818-18T2

conclusions were unfounded because he failed to demonstrate defendant had 

actual or constructive notice of the sidewalk's condition, and defendant's 

construction of the sidewalk or failure to maintain it was palpably unreasonable. 

To vault the threshold of a net opinion, Gianforcaro needed to do more than 

recite the measurements of the sidewalk and summarily conclude defendant 

created and ignored the alleged dangerous condition. The trial judge did not 

abuse his discretion when he barred Gianforcaro's net opinion.

Nor did the judge err in granting defendant's motion for judgment pursuant 

to Rule 4:40-1. 

In the case of motions for involuntary dismissal, the test 

is, as set forth in R[ule] 4:37-2(b) and equally 

applicable to motions for judgment [under Rule 4:40-

1], whether "the evidence, together with the legitimate 

inferences therefrom, could sustain a judgment in 

favor" of the party opposing the motion, i.e., if, 

accepting as true all the evidence which supports the 

position of the party defending against the motion and 

according him the benefit of all inferences which can 

reasonably and legitimately be deduced therefrom, 

reasonable minds could differ, the motion must be 

denied. The point is that the judicial function here is 

quite a mechanical one. The trial court is not concerned 

with the worth, nature or extent (beyond a scintilla) of 

the evidence, but only with its existence, viewed most 

favorably to the party opposing the motion.

[Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969) (internal 

citations omitted).]
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Pursuant to the Torts Claims Act (TCA), specifically N.J.S.A. 59:4-2, 

[a] public entity is liable for injury caused by a 

condition of its property if the plaintiff establishes that 

the property was in dangerous condition at the time of 

the injury, that the injury was proximately caused by 

the dangerous condition, that the dangerous condition 

created a reasonably foreseeable risk of the kind of 

injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an 

employee of the public entity within the scope of his 

employment created the dangerous condition; or

b. a public entity had actual or constructive notice of 

the dangerous condition under section 59:4-3 a 

sufficient time prior to the injury to have taken 

measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose 

liability upon a public entity for a dangerous condition 

of its public property if the action the entity took to 

protect against the condition or the failure to take such 

action was not palpably unreasonable.

A public entity must have actual or constructive notice, meaning actual 

knowledge of the dangerous condition, or should have known of the dangerous 

condition; or if plaintiff proves the condition lasted for such a period of time 

and was of such an obvious nature that the public entity "in the exercise of due 

care, should have discovered the condition . . . ." N.J.S.A. 59:4-3. Under the 

TCA, "palpably unreasonable" implies a behavior which is "patently 

unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J. 
15 A-0818-18T2

485, 493 (1985). More than negligence is required, and instead an "obvious and 

manifest breach of duty [is required] and imposes a more onerous burden on the 

plaintiff." Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979). 

Plaintiff did not meet the elements under the TCA. Gianforcaro examined 

the property over two years after the accident. He offered no basis for his

opinion that the sidewalk was a dangerous condition at the time of the fall. 

Plaintiff testified the photo of the sidewalk accurately depicted it at the time of 

her fall, but also stated she was in and out of consciousness following the fall. 

The other witnesses did not see plaintiff's fall in order to shed any light on the

condition of the sidewalk at the time of her fall. No evidence supported

plaintiff's argument the uneven portion of the sidewalk existed at the time of her 

fall. 

Regarding the issue of notice, Gianforcaro concluded the dangerous 

portion of the sidewalk existed since its construction. However, he provided no

factual basis for this conclusion. His opinion also lacked any basis to conclude 

defendant knew or should have known of the alleged dangerous condition. 

Absent from the record is any evidence of complaints regarding the sidewalk, 

other accidents occurring at that location, or notice to defendant of a defect in 

the sidewalk. 
16 A-0818-18T2

In the absence of notice, a public entity's conduct cannot reach the 

palpably unreasonable standard. See Maslo v. City of Jersey City, 346 N.J. 

Super. 346, 349-51 (App. Div. 2002) (holding given the absence of notice, 

among other factors, no rational fact finder could resolve the question of 

palpable unreasonableness in favor of the plaintiff). Plaintiff did not 

demonstrate defendant acted palpably unreasonably because she failed to prove 

defendant had notice of the alleged condition of the sidewalk. 

Given these circumstances, granting the Rule 4:40-1 motion where there 

was no showing plaintiff was deprived of due process was an appropriate 

exercise of discretion. See Borough of Saddle River v. 66 E. Allendale, LLC, 

216 N.J. 115, 142 (2013) (holding "[t]he gatekeeping function . . . assigned to 

[a] judge [where a party alleges net opinion is] specifically to screen the jury 

from hearing mere speculation.").

Affirmed.