Alan Schorr’s Case of The Week ending February 1, 2013

Shymanski v. City of Atlantic City, 2013 WL 309864 (App. Div. January 28, 2013) (unpublished)

This week’s case, Shymanski v. City of Atlantic City, doesn’t break any new ground but does highlight a disturbing trend at the Appellate Division and provides an opportunity for some important practice pointers. The case can also be used, to some degree, as support for plaintiffs who are trying to seek protection from unnecessary invasive sexual questions at deposition.

Iyata Anderson Shymanski was an African-American female Atlantic City police officer. She filed a Complaint in July 2008, alleging a pattern of hostile working environment which allegedly began in 2000 and culminated in her termination in 2006. Ultimately the reason for her termination was that she admitted that she made a false allegation that she was been impregnated by another officer, her former boyfriend, and then admitted to submitted a forged doctor’s note confirming the fake pregnancy. The Court granted summary judgment on her discrimination and retaliation claims and the Appellate Division confirmed for a variety of reasons, including statute of limitations and lack of merit. While the facts of the case do not demonstrate a close call on the summary judgment decision, I chose this case because it highlights some new practices at the Appellate Division that practitioners need to be aware of.

The Appellate Division appears to be very overworked and understaffed at the present time. Appeals that routinely were dispatched within 10-12 months just a few years ago now seem to be languishing two years or more. It is not unusual these days to see opinions released 16 months after oral argument, which often does not take place for a year after the filing of the Notice of Appeal. Even more importantly, the Appellate Division has been showing much less tolerance for incomplete filings and submissions.

In this case, the Court repeatedly lamented the fact that the Appellant failed to comply with Rule2:6-1(a)(1)(I) (requiring that appellant’s appendix include such . . . parts of the record . . . as are essential to the proper consideration of the issues[,]” and “[i]f the appeal is from a summary judgment, . . . a statement of all items submitted to the court on the summary judgment motion and all such items . . . .”). The Appellant only submitted to the App. Div. the transcript of oral argument, and neglected to submit her briefs, exhibits, certifications, and other documents submitted below, and as a result, the Appellate Division only considered the respondent’s papers and the oral argument.

I have read several opinions recently where the Court has been hampered by incomplete filings. However, in my experience, that was never the case until recently. It had been my experience that the Appellate case manager would call an attorney whose submissions were incomplete and advise as such, providing an opportunity to complete the record. This served the important purpose of making sure that the Appellate record was complete, and that the Appellate Division had not inadvertently misplaced something (not unheard of happening). Perhaps, in this case, the case manager had contacted counsel, who still failed to comply, but I have seen this same problem in several recent opinions. Appellate practitioners should beware that all documents submitted to the Court below should be provided to the Appellate Division, and you may not be given a second chance. Therefore, if you have to decide between being under-inclusive or over-inclusive, choose the latter, since there is no penalty for submitting too much, and if it is rejected for that purpose you will be given a chance to resubmit correctly.

This case has another interesting ruling. During the pendency of the case below, the plaintiff’s counsel had objected to deposition questions asking the plaintiff about her “sex life, . . . the number of times she was pregnant and/or the total number of abortions[]” plaintiff had. As a result of those objections, and over plaintiff’s strenuous objections, the trial court sanctioned the plaintiff $6,000.00 for refusing to answer the questions. These types of questions come up often in these types of case, and defense counsel usually argues that it goes to emotional distress damages. In this case, it was arguably relevant since the plaintiff had lied about a pregnancy and even forged a doctor’s note claiming she was pregnant.

Nevertheless, the Appellate Division reversed the order of sanctions, holding that the questions regarding plaintiff’s sex life were properly objected to:

We agree with plaintiff that the questions posed during her deposition did not seek “information . . . reasonably calculated to lead to the discovery of admissible evidence,” Rule 4:10-2(a), and, therefore, were objectionable. The judge erred in concluding counsel’s objections violated Rule 4:14-3(c), specifically permits an attorney to instruct a witness not “to answer a question [if] the basis of the objection is . . . a right to confidentiality . . . .”

This case should be filed away and saved because, given the fact pattern in this case, plaintiffs can use this to protect their clients from unnecessarily invasive sexual questions that bear no relevance to the case.

Plaintiff/Appellant’s counsel: Timothy J. McIlwane.

Defendant Respondents’ counsel: Steven C. Mannion, DeCotiis, FitzPatrick & Cole, LLP.

Appellate Judges: Messano, Ostrer and Kennedy.