On March 28, 2025, the New Jersey Appellate Court (“Court”) affirmed the motion judge’s decision granting summary judgment in favor of the defendants in Smith v. New Brunswick Board of Education, et al. Plaintiff’s claims included discrimination, hostile work environment, and retaliation. The motion judge granted summary judgment and dismissed all of plaintiff’s claims. Notably, plaintiff’s counsel did not have an opportunity to ask her client questions on redirect examination at deposition prior to summary judgment, rendering the record arguably incomplete.
One of the issues on appeal was related to this missed opportunity. Specifically, the issue was whether summary judgment was appropriate where plaintiff’s deposition was not concluded, and the record was incomplete. Plaintiff’s deposition was conducted but was ended early by her counsel because of timing issues. Four months later, plaintiff asked the court to compel her own deposition to permit her counsel to conduct redirect questioning. The motion judge denied this request and plaintiff did not challenge the denial. Thereafter, the discovery period closed, and defendants moved for summary judgment.
Technically, in New Jersey State Court, a party may move for summary judgment at any time after 35 days have passed since the complaint was served. However, it is generally inappropriate to grant summary judgment when discovery is incomplete and critical facts are within the moving party’s knowledge. However, if the non-moving party cannot show with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action, summary judgment may be appropriate.
On appeal, plaintiff failed to show how additional testimony by her would change the result. The Court found that the record explained all facts related to plaintiff’s discrimination claims. The Court acknowledged that plaintiff was able to certify to the facts relied upon in her opposition and an additional affidavit could have been filed.
The Court’s decision in Smith shows that in certain circumstances, not every stone needs to be turned for summary judgment to be granted. Specifically, redirect examination of a witness at his or her deposition is not a guarantee and is actually not the only avenue for a party to enter sworn statements into the record. This portion of the Smith decision serves as a reminder that tools such as certifications or affidavits are available to correct perceived inaccuracies or fill in perceived gaps for summary judgment. Additionally, once all the evidence necessary to support or defend a discrimination claim has been exchanged in discovery, litigators may consider early resolution by moving for summary judgment prior to the discovery end date.
Please contact an NFC team member if you have any questions or seek further assistance.
