NOT FOR PUBLICATION

PER CURIAM.

Plaintiffs Yana Vasilyeva and Lidiya Yakovleva appeal from two June 10, 2011 Law Division orders granting the separate summary judgment motions filed by defendants Griggs Farm, Inc. (Griggs Farm) and Princeton Community Housing, L.P. (PCH), and dismissing plaintiffs' complaint.2 Plaintiffs rented an apartment in a building owned by Griggs Farm and managed by PCH. Their action alleged negligence and breach of contract resulting from defendants' failure to timely remediate mold contamination in the unit. On appeal, plaintiffs argue the motion judge dismissed their action after erroneously excluding their expert medical report. We disagree and affirm.

I.

On September 1, 1995, plaintiffs, as tenants, and defendants, as the landlord, executed an agreement for the lease of an apartment in the Griggs Farm Development in Princeton (the lease). Plaintiffs receive benefits through the Princeton Township Affordable Housing Program, established pursuant to the Fair Housing Act, N.J.S.A. 52:27D-301 to-329.19, and subject to regulation by the Council on Affordable Housing (COAH), N.J.A.C. 5:93-1.3.

In the lease, plaintiffs acknowledged they accepted the rental unit "in safe, clean and good condition" and agreed to maintain the premises in that condition. PCH agreed to "[m]ake all repairs and ensure that the apartment [wa]s habitable[.]" The lease permitted PCH to enter the apartment "at reasonable time[s] to perform routine maintenance services," and provided, "[s]hould the Landlord undertake major rehabilitation of the unit ..., the Tenant agrees to temporarily relocate during the rehabilitation period to permit the work."

The lease also provided that if plaintiffs' "health, welfare or safety ... [wa]s affected by Landlord's violation of the [l]ease," plaintiffs were entitled to the following remedies:

On September 2, 2009, after living in the apartment for almost fourteen years, plaintiffs notified defendants of the presence of mold in the unit. Within the month, PCH hired Pinpoint Inspection & Testing, Inc. (Pinpoint), which evaluated the conditions of plaintiffs' unit. In its October 1, 2009 report, Pinpoint opined the apartment had "elevated levels of the mold genera Aspergillus/Penicillium type[,]" which is "abundant in nature, and commonly found in the air we breathe, both indoor and outdoor." Also, Pinpoint identified "`medium' levels of yeast-like fungi" in the bathroom, which "should not be found growing on any ... contents inside the home." Pinpoint identified various conditions created by plaintiffs which contributed to mold growth, including: pet urine "observed at multiple carpet locations"; a piece of wood laid over an open toilet tank creating moisture on a porous surface; plastic bags piled against an HVAC filtration unit; distribution ducts "obstructed by furnishings and storage"; and other poor housekeeping.

After forwarding Pinpoint's report to plaintiffs, defendants contracted mold removal specialist Servpro of Freehold (Servpro) to develop a remediation plan. In a November 5, 2009 letter, defendants advised plaintiffs of the need to relocate them (including their cat) during remediation, at defendants' expense. Defendants requested plaintiffs select a relocation site from a temporary housing election form, and informed them remediation would begin on November 24, 2009.

Vasilyeva refused to sign the temporary housing election form because she did not want defendants or their contractors handling certain "soft" items located in the unit, and did not want chemicals used in the unit because Yakovleva, her mother, had asthma and other allergies. Defendants offered to employ an organic dry cleaner following remediation. Plaintiffs declined, and mailed defendants a list of demands in connection with the proposed remediation, which included provision of a two-bedroom hotel suite, removal and storage of all plaintiffs' possessions, installation of laminate flooring, new locks, and rent abatement for the remainder of the lease. Defendants accepted responsibility for most of these items; however, they declined to provide for plaintiffs' hotel stay or issue a past rent abatement. For reasons not explained, plaintiffs declined to accept these terms and would not temporarily vacate their unit.

On December 23, 2009, plaintiffs filed a complaint. Count one alleged defendants failed to perform necessary repairs and otherwise maintain the unit, and their negligence resulted in mold contamination, which caused Yakovleva permanent disability because of chronic asthma. Count Two alleged defendants breached the lease, including the implied warranty of habitability, by failing to maintain the premises and allowing mold to persist.3

Griggs Farm and PCH filed separate answers and counterclaims as to each count, and moved for an order compelling plaintiffs' compliance with the proposed remediation plan. After a hearing, the trial judge allowed plaintiffs sixty days to inventory their property and ordered them to relocate by June 9, 2010, to allow remediation. Defendants were ordered to pay all relocation and remediation costs. Remediation was completed by July 9, 2010, and plaintiffs returned to their unit.

Defendants moved to compel plaintiffs' to provide an expert report or be barred from doing so. In response, plaintiffs presented a National Academy of Sciences Institute of Medicine sixteen-page "Executive Summary" discussing the general association between mold and respiratory problems. See Comm. on Damp Indoor Spaces & Health, Damp Indoor Spaces & Health 1-16 (2004), available at http://www.nap.edu/catalog.php?record_id=11011. Discovery closed on March 15, 2011.

Defendants separately moved for summary judgment, arguing plaintiffs failed to show causation, and failed to establish breach of contract. Plaintiffs opposed the motions, claiming their written report provided "valid scientific evidence" of a causal link between the "conditional injury of Ms. Yakovleva" and mold exposure in the apartment unit. Alternatively, plaintiffs argued this was a case governed by res ipsa loquitur and/or "common knowledge[,]" obviating the need for an expert opinion. Further, attached to plaintiffs' pleading was a report following a March 15, 2011 medical evaluation of Yakovleva by Genevieve Nwigwe, M.D., and Michael Gochfeld, M.D., Ph.D., of the Environmental & Occupational Health Sciences Institute. Acknowledging the report was untimely, plaintiffs argued the delay was justified because they had "to survive a battle with Princeton Medical Center" in order to obtain the necessary referrals.

During his June 10, 2011 review, the motion judge "strongly disagree[d]" with plaintiffs' suggestions "the case is one of common knowledge and ... no expert report [wa]s required." He found "expert reports [we]re critical" because "[t]he causal connection between a mild mold condition and the bodily injuries alleged to be suffered by plaintiffs is well beyond the knowledge or [ken] of an average juror[.]" Further, he concluded plaintiffs' untimely-submitted expert report was inadmissible because it was "devoid of [the] certification of due diligence" required under Rule 4:17-7; it had been "reasonably available to plaintiff[s] throughout the course of the litigation"; and plaintiffs had demonstrated "no exceptional circumstances ... that would warrant [its late] submission[.]" Responding to plaintiffs' suggestions leniency should be afforded because they were self-represented, the motion judge observed, "Ms. Vasilyeva is an attorney admitted to the Bar here in New Jersey, not your typical pro se litigant, one who is ignorant of the rules of court."4

The motion judge accepted defendants' argument that plaintiffs failed to identify a lease provision actually violated, and had not demonstrated "any evidence of damages" beyond claiming their clothes were "now of a different appearance." Moreover, the judge found the record demonstrated defendants made reasonable efforts to timely complete remediation after the mold was reported on September 2, 2009, in that defendants facilitated inspection on September 25, 2009 and offered to relocate plaintiffs.

After considering the evidence "in a light most favorable to ... plaintiffs," the motion judge concluded plaintiffs had "failed to come forward with competent proofs indicating that the facts are not as the moving party asserts." Accordingly, defendants' respective motions for summary judgment were granted, and the complaint was dismissed with prejudice. Plaintiffs' appeal ensued.

II.

Our review of a trial court's decision granting summary judgment pursuant to Rule 4:46-2(c) is governed by well-established principles. Viewing the evidence "in the light most favorable to the non-moving party," a reviewing court must determine whether the competent evidential materials demonstrate "`there is no genuine issue as to any material fact challenged[.]'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29, 540 (1995) (quoting R. 4:46-2(c)). "[W]hen the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment." Id. at 540 (internal quotation marks and citations omitted). Accordingly, to defeat a motion for summary judgment, the non-moving party must "come forward with evidence that creates a `genuine issue'" for trial. Id. at 529 (quoting R. 4:46-2).

Applying the same standard employed by the trial court, LVNV Funding, L.L.C. v. Colvell, 421 N.J.Super. 1, 6 (App. Div. 2011) (citation omitted), we first determine whether the moving party has demonstrated there were no genuine disputes as to any material facts, Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230 (App. Div.) (citation omitted), certif. denied, 189 N.J. 104 (2006). This requires consideration of all "competent evidential materials presented" to determine whether the evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. We next "analyze whether the motion judge's application of the law was correct[,]" Atl. Mut., supra, 387 N.J. Super. at 231, according no "special deference" to the motion judge's "interpretation of the law and the legal consequences that flow from established facts[,]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A party opposing summary judgment must respond with specific facts demonstrating a genuine issue of material fact. R. 4:46-5(a) (stating "an adverse party may not rest upon the mere allegations or denials of the pleading"). See also Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:46-5 (2013). "It should be a rare case where nothing whatsoever is submitted to contest the motion." Robbins v. City of Jersey City, 23 N.J. 229, 241 (1957) (citation omitted). However, an exception exists in those circumstances where "the truth of the critical facts asserted by the movant is subject to evaluation only by a credibility determination — uniquely the factfinder's function." Pressler & Verniero, supra, comment 2 on R. 4:46-5. See also D'Amato by McPherson v. D'Amato, 305 N.J.Super. 109, 115 (App. Div. 1997) ("A case may present credibility issues requiring resolution by a trier of fact even though a party's allegations are uncontradicted.").

Finally, the scope of our review is limited to the extent "[t]he jurisdiction of appellate courts ... is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Consequently, "the points of divergence developed in proceedings before a trial court define the metes and bounds of appellate review." Ibid. See also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (acknowledging the "well-settled principle" that appellate courts will not consider issues that could have been, but were not, presented to the trial court) (citation omitted).

III.

Plaintiffs argue they properly presented evidence demonstrating that defendants' negligent conduct caused Yakovleva's injury. They maintain the facts are within common knowledge and the doctrine of res ipsa loquitur applies to satisfy causation. Alternatively, they contend the judge erred because the Executive Summary served as an expert report creating disputed facts to overcome defendants' request for summary judgment. Further, they contend exceptional circumstances were shown and the judge abused his discretion by excluding their expert report. Finally, plaintiffs contend their proofs support the breach of contract claim. We will first address the negligence-related issues.

1.

First, plaintiffs invoke the doctrines of common knowledge and res ipsa loquitur, maintaining defendants' "negligence was more likely than not [the] direct and proximate cause of [the] bodily injury of ... Yakovleva[,]" obviating the need for an expert opinion. Plaintiffs suggest Yakovleva was healthy prior to 1995, and, therefore, her disabling, asthma-respiratory condition resulted from persistent mold exposure while living in defendants' apartment. The argument suggests it is evident that the respiratory ailments could only have occurred from defendants' negligent conduct. We reject this notion.

To establish a cause of action for negligence, a plaintiff must prove the "defendant owed a duty of care, the defendant breached that duty, and injury was proximately caused by the breach." Siddons v. Cook, 382 N.J.Super. 1, 13 (App. Div. 2005) (citing Gilleski v. Comty. Med. Ctr., 336 N.J.Super. 646, 652 (App. Div. 2001)).

"[I]t is ordinarily a plaintiff's burden to prove negligence, and ... it is never presumed." Khan v. Singh, 200 N.J. 82, 91 (2009) (citation omitted). However, if the doctrine of res ipsa loquitur (translated from Latin as the maxim "the thing speaks for itself") applies, the fact-finder is permitted "to infer negligence in certain circumstances, effectively reducing the plaintiff's burden of persuasion, but not shifting the burden of proof." Ibid. (citing Eaton v. Eaton, 119 N.J. 628, 638 (1990)). Once applicable, the doctrine creates an allowable inference of the defendant's want of due care where "`(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.'" Ibid. (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)).

Cases involving common knowledge are those whose facts allow "an ordinary juror, without any additional testimony on the subject, [to] recognize that an event does not usually happen except through negligence." Id. at 92 (citing Buckelew v. Grossbard, 87 N.J. 512, 526-27 (1981)). Similar to res ipsa loquitur, matters asserting situations that fall within the common knowledge of jurors, are those where "the very act bespeaks negligence." Ibid. Common examples include a surgeon who leaves a sponge inside the patient or a dentist who pulls the wrong tooth. Anyone would easily recognize these acts as negligent conduct.

Here, plaintiffs seek to apply the doctrine to satisfy causation in this toxic tort case. However, the evidence presented does not unquestionably establish the requisite elements set forth in Bornstein, supra, 26 N.J. at 269.

First, unlike the sponge left behind by the surgeon, which is an undisputed act of negligence, it is unclear what acts by defendants caused mold. Moreover, the relationship between the levels of mold contamination, attributed to an act or omission of defendants, and the mold's effect on Yakovleva's alleged respiratory distress, is not a topic of common knowledge. Also, there are various types of asthma, which result from various causes, and there are benign molds. Each of these issues is a matter of technical knowledge and not within the ken of the average juror.

Second, the record includes evidence Yakovleva's asthma condition pre-dated the lease agreement. For example, her primary care physician's March 28, 1996 chart entry, stating "she had asthma five years prior[,]" supports the medical condition was pre-existing. Further, in earlier bankruptcy litigation pleadings, Vasilyeva averred, "[I] came to the U.S. with [my] disabled mother in 1991."

Third, plaintiffs' conduct contributed to the mold growth. Pinpoint's expert mold evaluation report opined plaintiffs' poor housekeeping — including pet urine on the carpets, wood covering an open toilet tank, a blocked HVAC filtration unit, and obstructed distribution ducts — was a possible source of mold. Therefore, plaintiffs' contention the mold resulted from a flawed HVAC system or leaky faucets was not shown.

Consequently, plaintiffs failed to demonstrate "it is more probable than not that the defendant[s'] negligence was a proximate cause" of the injury or that plaintiffs themselves did not contribute to the injury. See Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291-92 (1984) (citation omitted). Neither common knowledge nor res ipsa loquitur apply to lessen the required proofs to support plaintiffs' claim of negligence.

Alternatively, plaintiffs argue the Executive Summary constitutes sufficient expert evidence linking Yakovleva's asthma to the mold contamination, thereby creating a genuine issue for trial. We disagree.

The National Academy of Sciences article generally discusses indoor dampness as a potential source of microbial growth and possible problems from exposure. This article does not address the facts of this case and cannot substitute for expert evidence critical to establish the nexus between Yakovleva's alleged exposure and her resultant medical conditions. See Sholtis v. Am. Cyanamid Co., 238 N.J.Super. 8, 28-29 (App. Div. 1989).5

2.

We next examine whether the judge abused his discretion in excluding the late-filed report prepared by the Environmental & Occupational Health Sciences Institute, following a March 15, 2011 examination of Yakovleva. Plaintiffs argue they have demonstrated excusable neglect warranting admission of the untimely submission. We are not persuaded.

Under Rule 4:17-7, discovery submissions are allowed after the "discovery cut-off" date "only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court[.]" One purpose of the rule is to address and rectify the liberality with which late amendments had been tolerated before 2000 and the consequent delays occasioned by this approach. Bender v. Adelson, 187 N.J. 411, 426 (2006); Brun v. Cardoso, 390 N.J.Super. 409, 411 n.2 (App. Div. 2006). The rule reinforces the importance of timely case preparation, making the discovery schedule "a fundamental part of `Best Practices'" that must be meaningfully enforced. Montiel v. Ingersoll, 347 N.J.Super. 246, 254 (Law Div. 2001). See also Bender, supra, 187 N.J. at 426 (stating Rule 4:17-7 "requires that untimely requests to amend answers to interrogatories be accompanied by a showing of due diligence").

Rule 4:24-1(c) provides that "[n]o extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." "The exceptional circumstances standard ... is designed to deal with the problems created when requests for discovery are presented out of time, creating the possibility of delay." Rivers v. LSC P'ship, 378 N.J.Super. 68, 80 (App. Div.), (citing Montiel, supra, 347 N.J. Super. at 249), certif. denied, 185 N.J. 296 (2005).

In Smith v. Schalk, 360 N.J.Super. 337, 339 (App. Div. 2003), the trial court allowed a plaintiff to "admit certain medical information emerging on the eve of trial[.]" On appeal we reversed, concluding the plaintiff's failure to file an application to amend supported by the requisite affidavit of due diligence was fatal. Id. at 345. When reviewing such an issue, we noted a trial court must consider issues causing unfair prejudice to defendants, including increased expense, delay, possibly "open[ing] the door to gamesmanship in the trial of cases," and thwarting the Best Practices objective to promote trial-date certainty. Ibid. Further, close examination of a plaintiff's exercise of due diligence must be made. See id. at 345-46.

A trial judge's determination to bar additional discovery, including a late-filed expert report, is governed by the abuse of discretion standard. Bender, supra, 187 N.J. at 428 (citations omitted). We generally will not disturb a decision unless it reflects a clearly mistaken exercise of discretion or "a mistaken understanding of the applicable law." Rivers, supra, 378 N.J. Super. at 80 (citation omitted).

There is no dispute in this case that when plaintiffs attached the expert report to their opposition to summary judgment, an arbitration date had been fixed and discovery had ended more than two months earlier. The issue, therefore, is whether the judge mistakenly exercised his discretion or misunderstood the exceptional circumstances standard when applying the undisputed facts and procedural history to the analysis. We conclude he did not.

Notably, plaintiffs failed to file an application to amend their discovery submissions or request an extension of the discovery end date. More importantly, plaintiffs did not present an affidavit of due diligence explaining why the export report was "not reasonably available or discoverable[.]" R. 4:17-7. Rather, plaintiffs merely attached the report as an exhibit to their opposition to summary judgment.

Now, for the first time, plaintiffs' merits brief offers a recitation of events explaining the delayed filing purportedly caused by the issuing expert's actions. This additional material is beyond the record on review and its substance will not be considered. R. 2:5-4; Pressler & Verniero, supra, comment 1 on R. 2:5-4.

The record contains ample support for the judge's determination that plaintiffs knew they could not timely file their expert report, yet failed to seek an extension of discovery. Plaintiffs had been warned of the necessity to comply with the scheduling order, yet they did not heed the court's caution. In addition, the absence of a motion for an extension accompanied by an affidavit of due diligence requires the report to be barred. Schalk, supra, 360 N.J. Super. at 345-46.

Although our determination does not require review of the sufficiency of plaintiffs' expert report, for completeness we add these comments.

N.J.R.E. 703 provides that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." The rule recognizes an expert's opinion must be founded on "facts or data." Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008) (citations omitted).

The report offered in this matter concludes Yakovleva's "ongoing symptoms are causally related to past/current exposure to mold/dampness in her home[,]" and "are more likely than not continually exacerbated by the mold exposure." However, this bare conclusion stands alone, unsupported by facts. Moreover, the report specifically states Yakovleva "reports chronic exposure to mold in her apartment, [but] whether the mold initially caused her to develop asthma symptoms is hard to reconstruct. Mold[] can trigger attacks in people with a history of asthma." The lack of foundational facts or data to support the offered expert conclusion requires exclusion under the net opinion rule, which "requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion." Rosenberg v. Tavorath, 352 N.J.Super. 385, 401 (App. Div. 2002) (internal quotation marks and citations omitted).

3.

Plaintiffs maintain defendants breached the rental agreement to the extent they: allowed mold to persist in the unit, rendering the property "hazardous" and uninhabitable; failed to respond to plaintiffs' complaints; failed to inspect the property; ignored the mold for a significant, fifteen-year period; verbally abused and harassed plaintiffs; and retaliated against plaintiffs by increasing rent. Further, plaintiffs suggest defendants' breach caused their personal property to be lost or stolen, and forced them to incur relocation and storage costs. We reject these contentions and determine the motion judge's findings that the record was devoid of supporting evidence must not be disturbed.

We have recited the lease provisions requiring defendants to correct uninhabitable conditions adversely affecting plaintiffs' "health, welfare or safety," and entitling plaintiffs to vacate the leased premises in the event of insufficient action. The lease also provided for relocation to allow defendants to cure the problems.

Plaintiffs reported the mold presence on September 2, 2009. Following notification, defendants immediately acted to remediate the unit. These efforts were disrupted because of plaintiffs' refusal to vacate the apartment. Defendants were forced to seek court assistance ordering plaintiffs' relocation to fulfill their contractual responsibilities. Once plaintiffs were out of the unit, remediation was completed within one month.

The record also fails to support the claimed personal property loss. No proof of physical damages or evidence of loss has been offered. Although plaintiffs produced proof of a storage pod rental, this expense is not an item of resultant damage but was incurred because plaintiffs rejected defendants' provision of storage facilities.

As a final point, plaintiffs argue this court should "reinstate [the] complaint in amended version to include [a] fraud count" based on alleged rent abuses, an issue not presented to the trial court and one which will not be considered.6 Nieder, supra, 62 N.J. at 234 (citation omitted).

Any additional arguments raised in plaintiffs' submissions that have not been specifically addressed were found to lack sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

Affirmed.