As September turned to October, the Appellate Division issued its second and third published opinions of the Term. One was a decision by Judge Vinci in a civil appeal. The other ruling, in a criminal appeal, was authored by Judge Perez Friscia.

The civil case is Kronfeld v. Malone, ___ N.J. Super. ___ (App. Div. 2025). This was a legal malpractice case that was filed on July 2, 2019. Plaintiff had obtained seven extensions of the discovery period. Two of those extensions were particularly relevant for this appeal, which was taken from the denial of an eighth discovery extension and a summary judgment against plaintiff that followed.

“On August 22, 2022, plaintiff filed her sixth motion to extend discovery. On September 9, the court entered an order granting the motion, extending the DED [discovery end date] 120 days until February 20, 2023, and scheduling trial for April 24, 2023.”

The seventh extension, for 120 days, was granted in March 2023. As Judge Vinci recounted, plaintiff’s counsel argued that discovery was complex and “[s]ome of this has gotten delayed [because of his] absence for medical treatment.” At that time, the Law Division was “was a little surprised that after [the] trial date[ was] set in September that there[ was] an application in February to extend discovery.” The judge said that he was “sympathetic to [counsel’s] health issues, but . . . [they] had discussions before about” those issues. Despite that, the judge granted the seventh extension but said that would be “the final extension of discovery” and warned plaintiff “do [not] come back.”

That seventh extension expired on June 20, 2023. On June 21, 2023, plaintiff belatedly filed a motion for an eighth extension of discovery. “Plaintiff argued ‘[her] primary counsel’s health issues, compounded by COVID[-19,] and the inherent complexity of this case qualify as exceptional circumstances to permit [an] extension of discovery.’" The Law Division found no exceptional circumstances, noting that the case had had over 1,300 days of discovery, counsel’s health issues had been addressed previously, and plaintiff had been warned not to seek any more discovery extensions.

Plaintiff had not served an expert report. Defendant thus moved for summary judgment. As Judge Vinci stated, “[p]laintiff's counsel filed a certification in opposition to the motion. Plaintiff did not file a response to Malone's statement of material facts, a counterstatement of material facts, or a brief.” Defendant was granted summary judgment. Plaintiff then appealed.

Plaintiff’s argument on the denial of an eighth discovery extension at issue centered on Hollywood Café Diner, Inc. v. Jaffee, 473 N.J. Super. 210 (App. Div. 2022). That case held that “when the court chooses to send out arbitration and trial notices during the discovery period, judges evaluating a timely motion to extend discovery may not utilize the exceptional circumstances standard.” But Judge Vinci found that case in applicable here for two reasons.

First, because plaintiff’s motion for the eighth extension was untimely, filed after the seventh extension had expired, the exceptional circumstances standard applied. Indeed, Hollywood Cafe itself “determined when, as here, the moving party seeks an extension after the discovery period has ended and after a trial date has been set, the court may grant the extension only upon a showing of exceptional circumstances.”

Second, Judge Vinci clarified that “Hollywood Café applies only when an arbitration or trial date is set by notice sent as an administrative tool prior to the conclusion of discovery. We hold that when a motion to extend discovery is filed after a judge sets an arbitration or trial date in a DED extension or case management order entered after expiration of the applicable initial period of discovery set forth in Rule 4:24-1(a), the exceptional circumstances test applies.” Judge Vinci then applied the abuse of discretion standard of review to the denial of the eighth discovery extension and found no such abuse in the Law Division’s refusal to find extraordinary circumstances.

The de novo standard of review applied to plaintiff’s appeal of the summary judgment motion against her. The panel affirmed that summary judgment. Plaintiff had not submitted opposition to defendant’s statement of undisputed facts or any legal argument. She could not simply rest on her pleadings or on her counsel’s certification, which violated Rule 1:6-6 as it was not made on personal knowledge. Judge Vinci also rejected plaintiff’s attempt to rely on a belatedly submitted expert report. The report was untimely and therefore could not be considered.

The criminal appeal decision was in State v. R.A.M., ___ N.J. Super. ___ (App. Div. 2025). Though Judge Perez Friscia’s opinion is well worth reading in full, her first few paragraphs well summarized the facts, the issues, and the panel’s holding.

“After a jury trial, defendant R.A.M. appeals from his second-degree aggravated assault conviction under N.J.S.A. 2C:12-1(b)(13) and resulting six-year prison sentence. Defendant contends reversal of his conviction is warranted because the prosecutor committed misconduct during summation. He also challenges the trial court’s imposed sentence, arguing the court: erroneously applied aggravating factor fifteen, N.J.S.A. 2C:44-1(a)(15); impermissibly considered dismissed charges in applying aggravating factors; and failed to explain the weight assigned to each aggravating factor.

Defendant's aggravating factor fifteen argument raises a question of first impression. We are asked to consider whether the court engaged in impermissible double counting in finding factor fifteen applied.

For the reasons that follow, we affirm defendant’s conviction because the prosecutor’s summation did not amount to plain error depriving defendant of a fair trial. We hold that the court’s application of aggravating factor fifteen did not constitute impermissible double counting because, although defendant’s underlying offense also required a finding that he acted against a domestic violence victim, the court separately determined, pursuant to N.J.S.A. 2C:44-1(a)(15), that the State established defendant had committed a prior act of domestic violence. Further, we conclude the court did not improperly consider defendant’s dismissed charges and sufficiently provided its reasons for the sentencing factors.”