ORNELLA RODOLICO VS. TOTOWA BOARD OF EDUCATION,WASHINGTON PARK SCHOOL(L-542-14, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4140-15T1

ORNELLA RODOLICO and
PASQUALE RODOLICO, her
husband,

Plaintiffs-Appellants,

v.

TOTOWA BOARD OF EDUCATION,
WASHINGTON PARK SCHOOL,
BOROUGH OF TOTOWA and STATE OF
NEW JERSEY,

Defendants-Respondents.
_________________________________

Submitted August 22, 2017 – Decided August 31, 2017

Before Judges Manahan and Gilson.

On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
542-14.

Frederic J. Rossi, attorney for appellants.

Wolff, Helies, Duggan, Spaeth & Lucas, PA,
attorneys for respondents (Peter H. Spaeth,
on the brief).

PER CURIAM

In this Title 59 action, plaintiffs Ornella and Pasquale

Rodolico (collectively plaintiffs) appeal from an order of summary
judgement in favor of defendants Totowa Board of Education (BOE)

and Washington Park School (Washington Park) (collectively

defendants).1 Having reviewed the arguments in light of the record

and applicable law, we affirm.2

We derive the following facts from the discovery record in

the light most favorable to plaintiffs. Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995). On February 21, 2012,

Ornella sustained injuries to her shoulder when she tripped and

fell on raised floor tiles in the lobby entrance of Washington

Park after picking up her son from the nurse's office. Ornella

was transported to Saint Joseph's Hospital where she was diagnosed

with and treated for a dislocated shoulder, and then released.

The next day, Ornella was examined by an orthopedist. Ornella

subsequently underwent surgery.

Following surgery, Ornella completed two rounds of physical

therapy. One commenced in June 2012, and continued through the

end of that calendar year. The second commenced in late 2014, and

1
We utilize Ornella's first name for ease of reference. In doing
so, we intend no disrespect.
2
Plaintiffs' case information statement notes that summary
judgment in favor of the State was entered on August 28, 2014, and
a consent order of dismissal was entered as to the Borough of
Totowa on December 9, 2015. Plaintiffs have not appealed either
order.

2 A-4140-15T1
continued until February 2015. By letter dated June 11, 2015,

plaintiffs' expert, Bryan Massoud, M.D., opined that Ornella's

injuries were permanent and were the cause of her decreased

functional abilities.

During her deposition, Ornella testified that she was

employed full time, worked forty hours, five days a week, and

completed chores in her home including: cooking, laundry, and

making the bed, although with some discomfort. She acknowledged

that she did grocery shopping, and had taken several vacations

subsequent to her fall to the Bahamas, the Dominican Republic,

Wildwood and Disney World.

Ornella further testified that she has surgical scarring and

suffered persistent "dull, throbbing pain" that runs from her

right shoulder down her arm. Concerning physical limitations

resulting from her injury, Ornella testified that she is unable

to lift her arm, she is unable to put her arm behind her back, she

is unable to pull or push anything with her right arm, she has

lost strength in her arm, and she is unable to hold a purse with

that arm. Ornella also testified that she was prescribed an anti-

inflammatory cream that she applies once or twice a week along

with taking Motrin.

Regarding the accident's occurrence, Ornella stated that she

went to the school from work and was wearing pump shoes with a

3 A-4140-15T1
heel approximately one-and-three-quarters to two-inches high.

Ornella also stated that she was walking at a normal rate of speed

and had no difficulty walking prior to the fall. Ornella noted

that she was looking straight ahead when she felt her left foot

adhere to something which she later attributed to elevated floor

tiles. Although Ornella previously walked through the school on

several occasions, she could not recall whether, on those

occasions, she had walked over the location where the incident

occurred.

Peter Campilango, the Building and Grounds Supervisor for the

BOE, was deposed as to his knowledge of the maintenance and repairs

in the school district. Campilango testified he and the

maintenance crew would inspect the floors at least weekly to ensure

cleanliness and safe conditions. Campilango stated that although

he never observed any raised tiles, the maintenance department

replaces tiles and re-grouts when necessary. Further, Campilango

testified that missing grout or a disparity in tile elevation

could result in a fall and he acknowledged that women would come

to the school wearing shoes similar to that worn by Ornella.

Beverly Luciano, the school nurse, was deposed. At the time

of her deposition, Luciano had been employed by the BOE for

approximately twelve years. On the day of the incident, Ornella

went to Luciano's office and advised her she had fallen. Luciano

4 A-4140-15T1
filled out an accident report. Luciano testified that she walked

over the area of the accident for several years and never observed

any raised tiles or unsmooth areas.

In discovery, plaintiffs produced the expert report of

Michael Natoli, a consulting engineer.3 In reaching his opinion,

Natoli relied upon photographs of the area taken by Ornella days

after the accident, photographs of the shoes worn by Ornella on

the day of her fall, his knowledge of the safety code, various

depositions, and other related information. Natoli concluded

that, "the prior unmarked tile trip hazard present within the

hallway walking surface created extremely hazardous conditions for

pedestrians." He also concluded that the "[half-inch] vertical

tile edge" was the cause of Ornella's injury. Natoli reported

that the zone where Ornella fell violated numerous safety codes

and that a disparity suggestive of a repair was present at the

location of the fall.

At the conclusion of discovery, defendants filed a motion for

summary judgment, which plaintiffs' opposed. Following oral

argument, the judge, in an opinion from the bench, granted

defendants' motion. The judge, citing N.J.S.A. 59:4-2, held there

3
Defendants' brief posits the judge ruled that Natoli's expert
report constituted a net opinion. However, as plaintiffs noted
in their reply brief and the record reflects, the judge did not
make this ruling.

5 A-4140-15T1
was no evidence in the record that demonstrated actual or

constructive notice to defendants of a dangerous condition, or

that any action or inaction on their part was palpably

unreasonable. The judge found there had been no complaints

regarding the floor prior to Ornella's fall and, even given the

alleged height difference in the floor, the condition did not pose

a substantial risk of injury.

The judge identified plaintiffs' burden under N.J.S.A. 59:9-

2(d), the statute limiting awards for pain and suffering to cases

involving objective proof of a permanent loss of a bodily function

that is substantial. Applying the proofs adduced in discovery,

the judge held there was "no factual basis for a fact[-]finder to

conclude that any alleged injury resulted in a substantial loss

of bodily function." Relative to Ornella's injury, the judge

found that although she had undergone surgery on her right shoulder

and underwent physical therapy, she had no medical treatment since

her discharge in March 2016.

An order memorializing the judge's oral decision was entered.

This appeal followed.

Plaintiffs raise the following arguments on appeal:

POINT I

THE TRIAL COURT ERRED IN FINDING THAT THERE
WERE NO ISSUES OF MATERIAL FACT.

6 A-4140-15T1
 [A.] The Case Law, Including The
Unpublished Opinion On Which The
Court Primarily Relied, Was
Misapplied To These Facts.

POINT II

THE TRIAL COURT ERRED IN FINDING [THERE] DID
NOT EXIST A DANGEROUS CONDITION OF PUBLIC
PROPERTY.

A. The Court Did Not Properly
Consider And Apply The Uniform
Construction Code To The Facts
Presented.

B. There Is Sufficient Evidence
That Actual Or Constructive Notice
Of The Dangerous Condition Existed
Here And That It Was Palpably
Unreasonable To Not Take Remedial
Actions Prior To [Ornella's] Fall.

POINT III

THE TRIAL COURT ERRED IN FINDING THAT
[ORNELLA'S] INJURY DID NOT MEET THE THRESHOLD
OF N.J.S.A. 39:2-9.2(B).4

Plaintiffs further raise the following arguments on appeal

in their reply brief; two of which are repetitive and one which

we addressed above in a footnote.

4
This appeal involves application of the New Jersey Tort Claims
Act (TCA), N.J.S.A. 59:1-1 to 12-3. Plaintiffs incorrectly cite
to N.J.S.A. 39:2-9.2(b), which relates to reemployment rights of
certain Civil Service employees and commissioners of the
Department of Motor Vehicles. N.J.S.A. 59:9-2(d) is the correct
citation for the TCA "verbal threshold."

7 A-4140-15T1
 POINT I

THE TRIAL JUDGE DID NOT DETERMINE THAT THE
EXPERT REPORT OF MICHAEL G. NATOLI, P.E.[,]
WAS A NET OPINION.

POINT II

THE TRIAL COURT ERRED IN DETERMINING THAT
[ORNELLA] DID NOT MEET THE STATUTORY
REQUIREMENTS OF N.J.S.A. 59:4-2, ET SEQ.

POINT III

THE TRIAL COURT ERRED IN FINDING THAT
[ORNELLA'S] INJURY DID NOT MEET THE THRESHOLD
OF N.J.S.A. 39:2-9.2(B).5

I.

We review de novo the trial court's grant of summary judgment,

applying the same standard as the trial court. Henry v. N.J.

Dep't of Human Servs., 204 N.J. 320, 330 (2010). Summary judgment

is proper if the record evidence shows "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;

see also Brill, supra, 142 N.J. at 540. All facts must be viewed

in a light most favorable to the non-moving party, "keeping in

mind '[a]n issue of fact is genuine only if, considering the burden

of persuasion at trial, the evidence submitted by the parties on

the motion . . . would require submission of the issue to the

5
Again, the citation should be N.J.S.A. 59:9-2(d).

8 A-4140-15T1
trier of fact.'" Schiavo v. Marina Dist. Dev. Co., 442 N.J. Super.

346, 366 (App. Div. 2015) (alteration in original) (quoting R.

4:46-2(c)), certif. denied, 224 N.J. 124 (2016). Furthermore,

whether a party is entitled to TCA immunity is a question of law,

Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008),

which we review de novo.

Public entity liability in New Jersey under the TCA is

limited. Polzo v. County of Essex, 209 N.J. 51, 55 (2012) (Polzo

II). In the TCA, the Legislature expressed the balance of

interests between injured parties and governmental entities.

N.J.S.A. 59:1-2. It declared that the public policy of this State

would require public entities to be liable for their negligence

only "within the limitations of this act and in accordance with

the fair and uniform principles established herein." Ibid.

Generally, a public entity is "immune from tort liability

unless there is a specific statutory provision imposing

liability." Kahrar v. Borough of Wallington, 171 N.J. 3, 10

(2002). Even if liability exists, "[c]ourts must 'recognize[] the

precedence of specific immunity provisions,' and ensure 'the

liability provisions of the Act will not take precedence over

specifically granted immunities.'" Parsons v. Mullica Twp. Bd.

of Educ., 440 N.J. Super. 79, 95 (App. Div. 2015) (second

9 A-4140-15T1
alteration in original) (quoting Weiss v. N.J. Transit, 128 N.J.

376, 380 (1992)), aff'd, 226 N.J. 297 (2016).

II.

We first address the parties' arguments relative to

liability. Plaintiffs argue that defendants had actual or

constructive notice of a dangerous condition (the raised tiles),

and that defendants' failure to identify and remediate the

condition was palpably unreasonable. In response, defendants

argue that there is no evidence of a "dangerous condition" and

that, even if such a condition existed, there is no evidence they

had actual or constructive notice. Further, defendants argue that

there is no evidence of palpably unreasonable conduct on their

part.

A public entity may be liable if "a negligent or wrongful act

or omission" of its employee "create[s] [a] dangerous condition"

or, if it had "actual or constructive notice of the dangerous

condition . . . a sufficient time prior to the injury to have

taken measures to protect against the dangerous condition."

N.J.S.A. 59:4-2(a) and (b). As the Court has repeatedly stated,

[I]n order to impose liability on a public
entity pursuant to [N.J.S.A. 59:4-2], a
plaintiff must establish the existence of a
"dangerous condition," that the condition
proximately caused the injury, that it
"created a reasonably foreseeable risk of the
kind of injury which was incurred," that

10 A-4140-15T1
 either the dangerous condition was caused by
a negligent employee or the entity knew about
the condition, and that the entity's conduct
was "palpably unreasonable."
[Vincitore v. N.J. Sports & Exposition Auth.,
169 N.J. 119, 125 (2001) (quoting N.J.S.A.
59:4-2).]

"Th[e]se requirements are accretive; if one or more of the elements

is not satisfied, a plaintiff's claim against a public entity

alleging that such entity is liable due to the condition of public

property must fail." Polzo v. County of Essex, 196 N.J. 569, 585

(2008) (Polzo I).

A dangerous condition "means a condition of property that

creates a substantial risk of injury when such property is used

with due care in a manner in which it is reasonably foreseeable

that it will be used." N.J.S.A. 59:4-1(a). Even if the public

entity did not create the dangerous condition, it may remain

accountable under the TCA if the entity had actual or constructive

notice of the dangerous condition and its failure to protect

against the danger is determined to be palpably unreasonable.

Polzo II, supra, 209 N.J. at 67. Conversely, liability will not

be imposed "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." N.J.S.A. 59:4-2.

11 A-4140-15T1
 "Palpably unreasonable" conduct contemplates more than mere

negligence. Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005).

Rather, the concept "imposes a steep burden on a plaintiff," and

"implies behavior that is patently unacceptable under any given

circumstances[,]" as well as behavior from which "it must be

manifest and obvious that no prudent person would approve of its

course of action or inaction." Ibid. (quoting Kolitch v.

Lindedahl, 100 N.J. 485, 493 (1985)).

Whether a property is in a "dangerous condition" is generally

a question for the finder of fact. Vincitore, supra, 169 N.J. at

123 (citing Roe v. N.J. Transit Rail Operations, Inc., 317 N.J.

Super. 72, 77-78 (App. Div. 1998), certif. denied, 160 N.J. 89

(1999); Daniel v. State, Dep't of Transp., 239 N.J. Super. 563,

573 (App. Div.), certif. denied, 122 N.J. 325 (1990)).

Nonetheless, "like any other fact question before a jury, [that

determination] is subject to the court's assessment whether it can

reasonably be made under the evidence presented" by the plaintiff

that the property was in a dangerous condition. Vincitore, supra,

169 N.J. at 124 (alteration in original) (citation omitted).

In Atalese v. Long Beach Township, 365 N.J. Super. 1, 6 (App.

Div. 2003), a three-quarter inch pavement differential in a bike

lane spanning an entire block was found to be a dangerous condition

where a plaintiff fell during a power walk. This court took into

12 A-4140-15T1
consideration the anticipated uses of the property and held that

it was foreseeable that pedestrians would use the bike lane to

walk, run, bike, etc. and, thus, the height differential

constituted a substantial risk of injury. Ibid.

Providing all favorable inferences to plaintiffs that they

established a prima facie showing that the floor's condition was

"dangerous," they still must satisfy the statute's notice

requirement. As well, they must satisfy the requirement that,

upon notice of a dangerous condition, defendants' failure to

protect Ornella was palpably unreasonable.

N.J.S.A. 59:4-3 provides:

a. A public entity shall be deemed to have
actual notice of a dangerous condition . . .
if it had actual knowledge of the existence
of the condition and knew or should have known
of its dangerous character.

b. A public entity shall be deemed to have
constructive notice of a dangerous condition
. . . only if the plaintiff establishes that
the condition had existed 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 and
its dangerous character.

However, "the mere '[e]xistence of an alleged dangerous condition

is not constructive notice of it.'" Polzo I, supra, 196 N.J. at

581 (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law

Div. 1990)). It follows that absent actual or constructive notice,

13 A-4140-15T1
the public entity cannot have acted in a palpably unreasonable

manner. Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-

51 (App. Div. 2002).

In Gaskill v. Active Environmental Technologies, Inc., 360

N.J. Super. 530, 533 (App. Div. 2003), the plaintiff tripped on a

one-inch elevated tree grate while walking on a sidewalk. Summary

judgment was granted for the defendant township where no evidence

that the township had actual or constructive notice of the raised

grate was in the record. Id. at 537. This court found that the

plaintiff "failed to establish a prima facie case that the inaction

by the township in repairing the grate, removing the tree or taking

other steps to rectify the allegedly dangerous condition prior to

the incident was palpably unreasonable." Ibid.

Similarly, in Maslo, supra, 346 N.J. Super. at 350-51, we

affirmed the grant of summary judgment noting that absent actual

or constructive notice, the conduct of the public entity could not

be found to be palpably unreasonable. We found there was no

factual issue as to constructive notice despite the plaintiff's

expert's opinion that the "observable difference in the height of

two sections of the sidewalk . . . would have been noticeable for

a year or more" given no proof was submitted to any city agency.

Id. at 349. Moreover, this court noted even the plaintiff, "a

14 A-4140-15T1
resident of the neighborhood, said she was unaware of the condition

of the sidewalk." Ibid.

As in Gaskill and Maslo, the discovery record here is devoid

of any evidence that the maintenance department or any employees

had notice, whether in the form of complaints of the alleged

dangerous condition or records of prior accidents occurring at the

site. As such, plaintiffs have not met their burden that

defendants' failure to discover and remediate the condition was

palpably unreasonable.

III.

Despite our determination that plaintiffs failed to establish

defendants' liability, in the event of further review, we address

plaintiffs' argument that the injury Ornella suffered constituted

a permanent loss of bodily function. As evidence of the

permanency, Ornella references the surgeries, her limited range

of motion, her difficulty in performing household chores, her

physical therapy, her need for prescription anti-inflammatory

cream, and Massoud's report.

N.J.S.A. 59:9-2(d), commonly referred to as the "verbal

threshold" of the TCA, provides:

No damages shall be awarded against a public
entity or public employee for pain and
suffering resulting from any injury; provided,
however, that this limitation on the recovery
of damages for pain and suffering shall not

15 A-4140-15T1
 apply in cases of permanent loss of a bodily
function, permanent disfigurement or
dismemberment where the medical treatment
expenses are in excess of [$3600].

[N.J.S.A. 59:9-2(d).]

The verbal threshold is not a grant of immunity; it is a

limitation on recoverable damages when the public employee or

entity is not immune. See Gilhooley v. Cty. of Union, 164 N.J.

533, 538 (2000) ("Even where liability is present, the [TCA] sets

forth limitations on recovery. One is the limitation on the

recovery of pain and suffering damages [in N.J.S.A. 59:9-2(d)].").

To vault the threshold, a plaintiff "must show '(1) an objective

permanent injury, and (2) a permanent loss of a bodily function

that is substantial.'" Knowles v. Mantua Twp. Soccer Ass'n, 176

N.J. 324, 329 (2003) (quoting Gilhooley, supra, 164 N.J. at 540-

41). Whether a party has met this second prong requires "a fact-

sensitive analysis." Id. at 331. A trial court must consider

whether the facts and circumstances place a plaintiff's injuries

on "that part of the 'continuum of cases' in which [our] Court has

determined that an injury is substantial and permanent." Ibid.

(quoting Gilhooley, supra, 164 N.J. at 541).

We need not address whether Ornella suffered a permanent

injury as a result of the incident because, even if she did, we

16 A-4140-15T1
are convinced that she failed to demonstrate a "permanent loss of

a bodily function that is substantial."

Certain injuries categorically satisfy the "permanent loss"

requirement - "injuries causing blindness, disabling tremors,

paralysis and loss of taste and smell." Gilhooley, supra, 164

N.J. at 541. These injuries inherently "implicate the substantial

loss of a bodily function (e.g., sight, smell, taste, and muscle

control)." Ibid. A substantial loss does not mean that a

plaintiff must demonstrate a "total permanent loss of use." Brooks

v. Odom, 150 N.J. 395, 406 (1997). Furthermore, "neither an

absence of pain nor a plaintiff's ability to resume some of his

or her normal activities is dispositive of whether he or she is

entitled to pain and suffering damages under the TCA." Knowles,

supra, 176 N.J. at 332.

In Kahrar, supra, 171 N.J. at 6, a plaintiff suffered a

"massive tear of [her] rotator cuff." The resulting surgery left

her with a permanently shortened tendon and forty-percent

decreased range of motion in her shoulder. Id. at 6-8. The Court

held this was a "substantial loss of a bodily function" as the

reduced range of motion "significantly impaired" her "ability to

use her arm to complete normal tasks." Id. at 16. In Gilhooley,

supra, 164 N.J. at 541-42, the plaintiff suffered a fractured

patella that required insertion of "permanent pins and wires to

17 A-4140-15T1
re-establish its integrity." Although the plaintiff had returned

to work, she suffered a "substantial loss" because her knee "could

not function" without the pins and wires. Id. at 542. Summarizing

Kahrar and Gilhooley, the Court in Knowles noted that both

plaintiffs "presented objective medical evidence linking an

injured body part to the plaintiff's inability, without extensive

medical intervention, to perform certain bodily functions."

Knowles, supra, 176 N.J. at 332-33.

At the other end of the "continuum" are cases in which an

injured party is merely "unable to perform certain tasks without

pain." Id. at 333. In Brooks, the plaintiff did not show

substantial loss where she "experience[d] pain" as a result of

soft tissue injuries in her neck and back, but she could still

"function both in her employment and as a homemaker." Brooks,

supra, 150 N.J. at 399, 406. As the Knowles Court summarized, the

Brooks defendant prevailed "because the plaintiff's daily

activities, although painful, were not substantially precluded by

her injuries." Knowles, supra, 176 N.J. at 333.

Similarly, in Ponte v. Overeem, 171 N.J. 46, 51-54 (2002),

the plaintiff did not demonstrate substantial loss where his knee

injury temporarily hindered his ability to exercise and do

housework, but the record did not establish he was permanently

"restricted because of his knee" in performing daily activities.

18 A-4140-15T1
See also Newsham v. Cumberland Reg'l High Sch., 351 N.J. Super.

186, 195 (App. Div. 2002) (concluding there was no substantial

loss where a vertebra fracture caused only "minor" limitations on

plaintiff's ability to perform daily activities).

Applying these principles, plaintiffs cannot satisfy the

threshold because Ornella has not suffered a "substantial loss"

of use of her arm. Ornella testified that the activities impaired

by the injury to her arm are: loss of strength, an inability to

push or pull with the arm, and loss of range of motion. Ornella

further testified that she works full time, completes household

chores with discomfort, and takes destination vacations, both

domestic and foreign. Being unable to perform certain tasks

without pain does not suffice to meet the threshold. Knowles,

supra, 176 N.J. at 333.

Moreover, Ornella's own testimony distinguishes this case

from Kahrar. Although both she and Kahrar each suffered a shoulder

injury that reduced their range of motion, Kahrar's injury

"significantly impaired" her ability to complete normal tasks.

Kahrar, supra, 171 N.J. at 16. Here, Ornella admits her ability

to carry out daily tasks is unchanged. While Ornella's injury has

undoubtedly caused her discomfort and made enjoying some

activities more difficult, there is no genuine dispute that she

is still able to carry out her daily activities. Accordingly,

19 A-4140-15T1
Ornella has not suffered a "substantial loss" of use of a bodily

function.

IV.

Finally, plaintiffs argue that the judge violated Rule 1:36-

3 by relying on unpublished opinions in his decision. The use and

authority of unpublished opinions is governed by Rule 1:36-3,

which provides that "[n]o unpublished opinion shall constitute

precedent or be binding upon any court" and that, "except to the

extent required by res judicata, collateral estoppel, the single

controversy doctrine or any other similar principle of law, no

unpublished opinion shall be cited by any court."

"It is well settled that a trial court's order or judgment

may be affirmed for reasons other than those expressed by the

judge." Price v. N.J. Mfrs. Ins. Co., 368 N.J. Super. 356, 359

n.1 (App. Div. 2004) (citing Ellison v. Evergreen Cemetery, 266

N.J. Super. 74, 78 (App. Div. 1993)), aff'd, 182 N.J. 519 (2005).

"[I]f the order of the lower tribunal is valid, the fact that it

was predicated upon an incorrect basis will not stand in the way

of affirmance." Isko v. Planning Bd. of Livingston, 51 N.J. 162,

175 (1968).

Suffice it to state, despite the judge's reference to

unpublished opinions, we are satisfied he relied upon those

opinions for their reasoning, rather than for precedent. We are

20 A-4140-15T1
further satisfied that the judge's decision granting summary

judgment was also premised upon controlling statutory and

precedential case law. As such, we discern no error.

Affirmed.

21 A-4140-15T1