LISA ARIOTTI VS. AMERICAN LEISURE (L-3533-14, HUDSON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0991-16T4
LISA ARIOTTI,
Plaintiff-Appellant,
v.
AMERICAN LEISURE, LITTLE MAN
PARKING, JASON D'ES VERNEY,
and DANIELLE CALCAGNO,
Defendants,
and
CRYSTAL POINT CONDOMINIUM
ASSOCIATION, 1
Defendant-Respondent.
_________________________________
Argued June 5, 2018 – Decided August 10, 2018
Before Judges Mayer and Mitterhoff.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No.
L-3533-14.
Timothy J. McIlwain argued the cause for
appellant.
1
Improperly designated as Crystal Point Building.
Henal Patel argued the cause for respondent
(McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys; James E. Patterson, of counsel and
on the brief; Henal Patel, on the brief).
PER CURIAM
Plaintiff Lisa Ariotti appeals from the trial court’s
September 16, 2016 order granting the motion for summary judgment
on behalf of defendant Crystal Point Condominium Association
(Crystal Point). We affirm.
Plaintiff was employed by American Leisure as a massage
therapist. She had several clients who resided in Crystal Point's
condominium building in Jersey City. According to plaintiff, she
was permitted to park in the onsite private parking garage managed
by Little Man Parking, and she did so for seven months without
incident. On or about August 13, 2013, American Leisure terminated
plaintiff after allegedly learning that she had committed parking
theft. After her termination, plaintiff commenced this lawsuit,
suing American Leisure for wrongful termination under the New
Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-12,
Danielle Calcagno for defamation, and Crystal Point (and other
defendants) for aiding and abetting the wrongful termination, and
for vicarious liability as Danielle Calcagno's employer. The
claims against all defendants, except Crystal Point, were
dismissed. The claims against Little Man Parking were dismissed
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by way of summary judgment on January 8, 2016. The claims against
American Leisure, Jason D'es Verney, and Danielle Calcagno were
dismissed for lack of prosecution on February 27, 2015.
On appeal, plaintiff asserts that the trial judge did not
apply the correct summary judgment standard in that he failed to
accord her all reasonable inferences as required by Brill v.
Guardian Life Insurance Co. of America, 142 N.J. 520, 523 (1995).
In addition, plaintiff argues that she was denied due process
because neither she nor her counsel appeared for oral argument on
the motion.
On appeal from summary judgment orders, we review the matter
de novo and apply the same standard employed by the trial court.
Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014).
Accordingly, we must determine whether the moving party has
demonstrated that there are no genuine disputes as to any material
facts, and if so, whether the facts, viewed in the light most
favorable to the non-moving party, entitle the moving party to
judgment as a matter of law. R. 4:46-2(c); see also Davis, 219
N.J. at 405-06; Brill, 142 N.J. at 523.
In order to state a claim for wrongful termination under the
New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to
-42, a plaintiff must demonstrate that the defendant was his or
her "employer" within the meaning of the statute. N.J.S.A. 10:5-
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12(a); N.J.S.A. 10:5-5(e). See also Chrisanthis v. County of
Atlantic, 361 N.J. Super. 448, 453 (App. Div. 2003). In this
case, plaintiff was employed as a massage therapist for American
Leisure. She was never employed by Crystal Point. Plaintiff's
allegation against Crystal Point is that it aided and abetted
American Leisure in plaintiff's wrongful termination.
In order to hold a party liable as an aider or abettor under
NJAD, a plaintiff must show that
(1) the party whom the defendant aids must
perform a wrongful act that causes an injury;
(2) the defendant must be generally aware of
his role as part of an overall illegal or
tortious activity at the time that he provides
the assistance; [and] (3) the defendant must
knowingly and substantially assist the
principal violation.
[Tarr v. Ciasulli, 181 N.J. 70, 84 (2004)
(alteration in original) (quoting Hurley v.
Atl. City Police Dep't, 174 F.3d 95, 129 (3d
Cir. 1999)).]
In this case, plaintiff's aiding and abetting claim against
defendant fails because plaintiff has failed to produce any
competent evidence that defendant aided or abetted plaintiff's
employer, American Leisure, in any manner. Instead, she relies
solely on speculation and unsupported allegations. Therefore,
plaintiff cannot establish the first element to support her claim
that Crystal Point aided and abetted her wrongful termination, and
the trial court properly granted summary judgment on that claim.
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Next, plaintiff asserts that her claim for promissory
estoppel should not have been dismissed on summary judgment. This
claim centers on her assertion that for seven months, she was
permitted to utilize the garage at Crystal Point, which was
maintained by Little Man Parking. In order to survive summary
judgment on a promissory estoppel claim, a plaintiff must show:
(1) a clear and definite promise by the
promisor; (2) the promise must be made with
the expectation that the promisee will rely
thereon; (3) the promisee must in fact
reasonably rely on the promise; and (4)
detriment of a definite and substantial nature
must be incurred in reliance on the promise.
[Pop's Cones, Inc. v. Resorts Int'l Hotel,
Inc. 307 N.J. Super. 461, 469 (App. Div. 1998)
(quoting Malaker Corp. Stockholders Protective
Comm. v. First Jersey Nat'l Bank, 163 N.J.
Super. 463, 479 (App. Div. 1978)).]
The first element, a "clear and definite promise," is the "sine
qua non for applicability of this theory of recovery." Malaker,
163 N.J. Super. at 479.
In this case, plaintiff does not allege that Crystal Point
made any promise to plaintiff. Instead, plaintiff alleges that
an implied promise was formed by virtue of the fact that she was
permitted to park her car at Little Man Parking for seven months
without incident. That is not sufficient to give rise to a clear
and definite promise. Id. at 480 (holding an "implied undertaking
to lend an unspecified amount of money" was not "the 'clear and
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definite promise' that is required as an adequate foundation for
estopping the [defendant]"); see also E. Orange Bd. of Educ. v.
N.J. Sch. Constr. Corp., 405 N.J. Super. 132, 147-48 (App. Div.
2009) (articulating a general expectation to approve and fund
projects is not sufficiently definite to support a promissory
estoppel claim). As plaintiff cannot establish the first element
of a promissory estoppel claim, the trial court did not err in
dismissing the claim on summary judgment.
Next, plaintiff argues that her defamation claim should not
have been dismissed on summary judgment. A defamatory statement,
generally, subjects an individual to contempt or ridicule, see
DeAngelis v. Hill, 180 N.J. 1, 13-14 (2004) (citing Lawrence v.
Bauer Publ'g & Printing Ltd., 89 N.J. 451, 459 (1982)), or harms
a person's reputation by lowering the community's estimation of
him or deters others from associating or dealing with him. Ward
v. Zelikovsky, 136 N.J. 516, 529 (1994) (citing Restatement
(Second) of Torts § 559 (1977)).
To succeed in a defamation action, a plaintiff must prove
three essential elements: (1) that the defendant made a false and
defamatory statement concerning plaintiff; (2) that the statement
was communicated to another person (and not privileged); and (3)
that defendant acted negligently or with actual malice. See G.D.
6 A-0991-16T4
v. Kenny, 205 N.J. 275, 293 (2011) (citing DeAngelis v. Hill, 180
N.J. 1, 13 (2004)).
Plaintiff seems to articulate that Crystal Point is
vicariously liable for Calcagno's alleged defamatory statement.2
Plaintiff has baldly asserted a vicarious liability claim rooted
in a defamation claim without supporting evidence. Even if this
court assumed vicarious liability by Crystal Point for statements
made by Calcagno, plaintiff's defamation claim still fails since
she has not proffered any evidence supporting her claim that a
defamatory statement was made with negligence or actual malice to
third persons that caused plaintiff harm.
The record reflects that plaintiff merely relies on her own
statement that Calcagno allegedly informed "the Vice President of
American Leisure, Jason D'es Verney and others that plaintiff
committed parking theft." This statement alone does not establish
defamation. Specifically, plaintiff does not provide any evidence
that (1) the statement was false and (2) the statement was made
either with negligence or malice. Indeed, plaintiff argues that
after being accused of parking theft, "Crystal Point did not give
[p]laintiff an option to settle the parking bill of approximately
$1,500."
2
Crystal Point concedes that Danielle Calcagno is an employee of
Crystal Point.
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Moreover, the trial court noted, "[p]laintiff did not provide
any facts to set forth a defamation claim against Crystal Point."
Specifically, "[p]laintiff did not go as far as to state that a
false statement matter was made to a third person." Accordingly,
the trial court did not err in dismissing that claim.
Finally, plaintiff contends that she was denied due process
because neither she nor her attorney appeared for oral argument
on the summary judgment motion. Pursuant to the September 16,
2016 transcript, the trial court conducted a scheduled oral
argument hearing, which plaintiff's counsel and plaintiff failed
to attend. The record reflects that the hearing was scheduled for
10:30 a.m., however, the trial court conducted the hearing forty-
five minutes after the original scheduled oral argument time noting
that plaintiff's counsel was not present. In the trial court's
statement of reasons, the court noted that its decision was
rendered based on the written arguments presented. For that
reason, the trial court did not abuse its discretion by relying
on the written arguments submitted to the court in deciding the
motion.
The remaining issues raised by plaintiff, including her
appeal of the cross-motion to dismiss, do not have sufficient
merit to warrant discussion in a written opinion. Rule 2:11-
3(e)(1)(E).
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Affirmed.
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