NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM

Plaintiffs appeal from a March 6, 2014 order granting summary judgment in favor of defendants Borough of Rutherford and Caryn Miller. Plaintiffs contend the trial court committed three errors requiring reversal: first, it granted defendants' summary judgment motion prematurely, before plaintiffs deposed Miller, the party at the center of the controversy, who had not appeared for her deposition due to illness; second, it misapplied the summary judgment standard, granting the motion despite disputed issues of material fact; third, it misapplied the law of qualified immunity. Having considered the parties' arguments in light of the record and the legal principles concerning summary judgment motions, we conclude genuinely disputed issues of material fact precluded summary judgment. Accordingly, we reverse and remand for further proceedings.

We discern the following facts from the evidence presented at summary judgment, viewed in the light most favorable to plaintiffs, as required by Rule 4:46 and Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiffs are Winberry Realty Partnership and the partners who comprise it (collectively Winberry). In 2001, Winberry did not pay the real estate taxes on land it owned in the Borough of Rutherford (the property). Consequently, on October 11, 2002, the Borough's tax collector, defendant Miller, sold the property to American Tax Funding, LLC (American), as evidenced by a certificate of sale for unpaid municipal liens (the tax sale certificate). The tax sale certificate contained the following statement: "Said sale is subject to redemption on repayment of the amount of sale, together with interest at the rate 0.00 per centum per annum from the date of sale, and the costs incurred by the purchaser." The amount of the sale was $7072.58.

Four years later, on October 23, 2006, American filed a complaint to foreclose on the tax sale certificate. On August 6, 2007, the court entered an order striking Winberry's answer and deeming the action uncontested. On October 31, 2007, the court denied Winberry's motion for reconsideration and returned the matter to the Foreclosure Unit in Trenton as uncontested.2

On May 5, 2008, the court entered an order providing, among other things:

The order further provided that in default of the required payment, "the defendants stand absolutely barred and foreclosed of and from all right and equity of redemption.... Anything to the contrary notwithstanding, redemption shall be permitted up until entry of final judgment, including the whole of the last day upon which judgment is entered" (emphasis added).

Winberry did not redeem the certificate on June 19, 2008, and, at the request of American, Miller completed a Tax Collector's Certification of Non-Redemption on that date. On July 23, 2008, American filed a motion for entry of final judgment. The court entered final judgment the next day, July 24, 2008. Thus, applying the terms of the May 5, 2008 order, Winberry was permitted to redeem the tax sale certificate through July 24, 2008, "the whole of the last day upon which judgment is entered."

Either early or in the middle of the afternoon on July 23, 2008, John Winberry attempted to redeem the tax sale certificate. He claimed "[Miller] said she wasn't going to accept it under any circumstances[.]" He testified at his deposition that he telephoned Miller to ascertain the additional interest owed since the June redemption date. According to him, he "was ready to pay for it and, you know, she wouldn't allow me." He told Miller: "I'm looking for the total amount that's due as of today so I can pay it off." She responded: "I don't have the time to give you the total amount. Can't do it today."

John Winberry also testified at his deposition that Miller refused to provide a per diem amount or to accept any payment, even an amount larger than the amount owed, stating that she did not have authority to accept payment after the June 19, 2008 order had been entered. John Winberry had access to the funds necessary to redeem the certificate on July 23, 2008. However, after his phone call to Miller, he did not obtain the bank check necessary to redeem the certificate because Miller said "she would not accept any check." He also claims to have suffered a panic attack following the phone call which prevented him from going to the bank.

The court entered a final judgment of foreclosure on July 24, 2008. After incurring more than $150,000 in legal fees and costs, Winberry successfully moved to vacate the final judgment. On July 9, 2009, the court filed the order vacating the judgment, conditioned on Winberry paying all sums due within five days "of receipt of break down." Winberry subsequently redeemed the tax sale certificate.

The following year, on July 22, 2010, Winberry filed a six-count complaint against defendants, alleging: the individual defendants violated 42 U.S.C. § 1983, § 1985 and the Fourth, Fifth and Fourteenth Amendments to the federal Constitution (count one); the individual defendants violated the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to-2 (count two); the Borough violated 42 U.S.C. § 1983 (count three); the Borough negligently and/or recklessly failed to train or supervise its tax collectors (count four); the individual defendants failed to administer their duties with reasonable care, but rather administered them recklessly, with personal animus toward the individual Winberry partners (count five); and all defendants intentionally inflicted mental anguish and emotional distress upon plaintiffs (count six). Winberry sought compensatory, punitive, and emotional distress damages as well as attorneys' fees, interest, and cost of the suit.

The Borough and Miller answered the complaint and thereafter, in June 2011, successfully moved to dismiss counts four (negligent supervision) and six (intentional infliction of emotional distress). Between September 16, 2011, and February 3, 2012, the court twice dismissed the complaint without prejudice for discovery violations. On May 29, 2012, the court dismissed the complaint with prejudice for discovery violations and failure to move to vacate the previous dismissal as required by Rule 4:23-5(a)(2).3 The court denied plaintiffs' motion for reconsideration on July 13, 2012. Winberry appealed and on August 9, 2013, we reversed and remanded the matter to the trial court. Winberry Realty P'ship v. Borough of Rutherford, No. A-5760-11 (App. Div. Aug. 9, 2013).

On remand, the court scheduled trial for April 7, 2014. The Borough and Miller filed a motion for summary judgment on January 21, 2014. On February 12, 2014, plaintiffs filed a motion to extend discovery and compel the depositions of Miller and Susan Fujii, cashier for the Borough Tax Collector.

In support of their summary judgment motion, the Borough and Miller recounted the procedural history, submitted John Winberry's deposition testimony, and submitted a certification from the tax office cashier stating: "It was, and is, the practice of the Tax Collector's Office to verify the current redemption amount with the lienholder and/or the lienholder's attorney prior to providing the current and precise redemption amount to the redeeming party."

The Borough and Miller also submitted Miller's certified interrogatory answers, in which Miller gave her "limited recollection" of her July 23, 2008 telephone conversation with John Winberry, namely, that she "could not advise him of the amount needed to redeem the [p]roperty," but she "did not foreclose Mr. Winberry from obtaining the amount at a later time." She speculated she likely informed him she "could not give him the information at the time since [she] did not have the figures readily available, and ... could not confirm the figures without performing additional calculations and re-assessments." In another interrogatory answer, Miller averred: "I had informed Mr. Winberry that I was unable to provide him with the information he sought at that time. I do not recall anything further."

Winberry opposed the motion, submitting, among other documents, certifications from partners John and Gregory Winberry. According to their certifications, Miller continued to refuse to redeem the tax sale certificate even after the court's July 9, 2009 order. John Winberry certified that on July 21, 2009, he telephoned Miller about a discrepancy in payoff amounts provided to him by the tax office and by the certificate holder's attorney. She told him again "that it was too late and that as far as she was concerned [John Winberry] had years to pay this off already. She did this despite the fact that she had provided calculations pursuant to a court order allowing redemption after the final judgment had been vacated." When John Winberry challenged her statement as contradictory to the court order, Miller said she would be out of her office, but her assistant, the cashier, would accept payment.

On July 22, 2009, and two more times that week, a partner tendered payment and a letter from Winberry's attorney to the cashier, who refused to accept them. According to the Winberry certifications, on the third attempt, when two partners challenged her refusal to accept their tender and her statement that she was not allowed to accept payment, one of the partners tried to place the certified checks and lawyer's letter under a glass window, but she blocked the window and threatened to call the police.

On March 6, 2014, the court granted the summary judgment motion, concluding Miller was immune from suit because "her conduct was objectively reasonable." The court noted, "[i]t has been stated to this [c]ourt, that during the phone call requesting the redemption amount, [d]efendant Miller simply failed to provide the amount of the payoff." The court found Miller's act "was not a malicious intentional act so as to pierce the qualified immunity that [d]efendant Miller enjoyed." The court further concluded that because Miller was immune, the Borough could not be held liable.4 On March 14, 2014, the court denied as moot Winberry's motion to extend discovery and compel depositions. Winberry filed this appeal.

When a party appeals from an order granting summary judgment, our review is de novo and we apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party, Brill, supra, 142 N.J. at 540, and review the legal conclusions of the trial court de novo, without any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The trial court determined the Borough and Miller were entitled to summary judgment "as there are no genuine issues of material fact." Significantly, the trial court determined there were no material facts in dispute as to a single issue: whether Miller was entitled to qualified immunity. Winberry argues the trial court erred because there were indeed genuine issues of material fact concerning Miller's entitlement to qualified immunity. We agree.

To prevail on a claim brought under 42 U.S.C. § 1983, a plaintiff must first identify "`the person acting under color of law[]' that has caused the alleged deprivation," and then "identify a `right, privilege or immunity' secured to the claimant by the Constitution or other federal laws of the United States." Rezem Family Assocs. L.P. v. Borough of Millstone, 423 N.J.Super. 103, 114 (App. Div.) (quoting Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363 cert. denied, 519 U.S. 911, 117 S.Ct. 275, 136 L. Ed. 2d 198 (1996)), certif. denied and appeal dismissed, 208 N.J. 366, 368 (2011). "We see no reason to apply different elements to a cause of action brought under the [New Jersey Civil Rights Act, N.J.S.A. 10:6-2]," as "[t]he New Jersey statute was modeled after § 1983." Id. at 115.

Here, the trial court did not base its decision on Winberry's failure to establish a prima facie case of a § 1983 or New Jersey Civil Rights Act claim. Rather, the court determined "[d]efendant Miller is entitled to immunity in this matter[.]"

"Qualified immunity is a doctrine that shields government officials from a suit for civil damages when `their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Gormley v. Wood-El, 218 N.J. 72, 113 (2014) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)). The doctrine "balances two important interests — the need to hold the public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L. Ed. 2d 565, 573 (2009).

A right is clearly established when "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L. Ed. 2d 523, 531 (1987). The "dispositive inquiry ... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation ... confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 2156, 150 L. Ed. 2d 272, 282 (2001).

Here, the trial court found defendant Miller "was performing, to the best of her ability, her role as [the Borough's] Tax Collector." The court characterized "[t]he crux of [Winberry's] case" as resting on "the presumption that [d]efendant Miller violated [Winberry's rights] ... when she did not provide the redemption amount ... during the time frame of a particular telephone call." (Emphasis added). The court's analysis is unsupported by the record and contravenes the summary judgment standard.

John Winberry testified he telephoned Miller in either early or mid-afternoon and that she said, among other things, she would not accept his check under any circumstances, even if he overpaid, and she did not have the authority to accept payment after the June 19, 2008 order had been entered. He stated explicitly in his deposition testimony that Miller said "she wouldn't accept a check." Moreover, when the court vacated the foreclosure judgment conditioned on Winberry redeeming the tax sale certificate within five days of receiving the "break down" of the amount due, Miller — according to Winberry — said it was too late to redeem the certificate and as far as she was concerned, Winberry had had years to pay it. Thereafter, the tax office cashier refused to accept from Winberry a check and letter from Winberry's attorney.

It appears the trial court determined "Miller was performing to the best of her ability" from inferences drawn from her interrogatory answers. Any such inferences were explicitly refuted by the deposition testimony of John Winberry, thus creating a genuinely disputed issue of material fact. Neither the Borough nor Miller dispute that Winberry had a clearly established right to redeem the tax sale certificate, a right based in statutory law and two court orders. If, as Winberry asserts, Miller refused to timely redeem the tax sale certificate — not during the specific phone call, but at all — notwithstanding Winberry's established right to do so, then the doctrine of qualified immunity would not be available to her. Accordingly, we reverse the order granting summary judgment to the Borough and Miller.

Winberry also argues summary judgment was premature because Miller had not been produced for a deposition. The Borough and Miller dispute that Winberry raised this issue in opposition to the summary judgment motion. We need not address it. On remand, however, the court should permit the parties to complete the depositions of Miller, the tax office cashier, and the Winberry partners. The record reveals that those depositions had not been completed when the trial court decided the summary judgment motion.

The Borough argues Winberry has provided no factual or legal basis to reverse the trial court's dismissal of the claims against the Borough. Winberry disputes the Borough's claim. The trial court did not address whether, on the merits, the Borough was entitled to summary judgment. Rather, it merely concluded that because the tax collector had immunity, the Borough "is likewise also immune." Having reversed the grant of summary judgment to the clerk, the summary judgment as to the Borough is likewise reversed. Upon completion of depositions, the Borough may renew its summary judgment motion on any appropriate basis.

Reversed and remanded. We do not retain jurisdiction.