NOT FOR PUBLICATION WITHOUT THE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-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. L-
0272-14.
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
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)
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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
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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
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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 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
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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 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.
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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
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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.
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