Opinion
DOCKET NO. A-0436-11T2
03-04-2013
BEQIR CAFULI, Plaintiff-Appellant, v. HELENA PASZUL, Defendant-Respondent.
Patrick M. Metz argued the cause for appellant (Seigel Capozzi, LLC, attorneys; Mr. Metz, on the brief). Richard W. Fogarty argued the cause for respondent (Chasan Leyner & Lamparello, PC, attorneys; John V. Mallon, of counsel; Mr. Fogarty, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4104-08.
Patrick M. Metz argued the cause for appellant (Seigel Capozzi, LLC, attorneys; Mr. Metz, on the brief).
Richard W. Fogarty argued the cause for respondent (Chasan Leyner & Lamparello, PC, attorneys; John V. Mallon, of counsel; Mr. Fogarty, on the brief). PER CURIAM
Plaintiff appeals from the denial of his second motion to vacate the dismissal of his complaint with prejudice and the denial of his motion for reconsideration. We affirm.
The complaint in this matter was filed in October 2008 and alleged that plaintiff was injured in a motor vehicle accident on July 6, 2007 due to defendant's negligence. It is undisputed that plaintiff's claim was subject to the "verbal threshold." N.J.S.A. 39:6A-8.
During the course of discovery, plaintiff identified three expert witnesses: Rey N. Bello, M.D., Michael L. Amoroso, M.D., and Domenic Fontarosa, D.C. The discovery period ended on November 16, 2009.
The matter was listed for trial on April 19, May 24, June 21, September 7, October 18, and November 29, 2010. On the sixth and last trial date, plaintiff's counsel advised the court that he could not locate one of his expert witnesses, Dr. Bello. He requested a thirty-day adjournment so that plaintiff could be examined by another doctor, Dr. Rosenbaum. Defense counsel objected, noting the six trial dates and stating,
Counsel has known about the position with Dr. Bello, at least as early as the first trial date. Further, any review by Dr. Rosenbaum certainly would be outside the scope of discovery.
The trial court denied the adjournment request and assigned the matter to another judge for trial. Plaintiff's counsel acknowledged to the trial judge that he lacked the necessary expert testimony to prove the requisite injury:
It's a verbal threshold case. . . . I would be able to allow my client to testify, at least on soft tissue stuff, but the fact of the matter, it's a verbal [threshold case]. We have to prove permanency. I don't have a doctor available to do that for me.
The trial court entered an order of involuntary dismissal of the complaint with prejudice, dated November 29, 2010. Plaintiff did not file a timely appeal from that dismissal or seek leave to appeal from the denial of his adjournment request.
In March 2011, plaintiff's counsel filed a motion to reinstate the complaint. Counsel submitted a supporting certification in which it was stated that the attorney who appeared at the trial court failed to advised the partners in the firm that the matter had been dismissed. Counsel acknowledged that, at the time of the trial date, the firm had known that Dr. Bello had retired but had an oral agreement with him that he would continue to testify as needed. Counsel stated that the firm was unable to get in touch with Dr. Bello when this matter was scheduled for trial and had since learned that he was "unavailable due to an ongoing investigation by the Medical Board."
The State of New Jersey filed a complaint against Dr. Bello on October 19, 2010, seeking the suspension or revocation of his license and other relief. A final order, memorializing his surrender of his license, was entered January 11, 2011.
The motion was opposed and denied, for the reasons stated in the opposition, by order dated March 18, 2011. Plaintiff did not file a timely appeal or motion for reconsideration.
A second motion to reinstate the complaint was made in May 2011. In support of this motion, plaintiff's counsel submitted a certification, noting deficiencies in the performance of the attorney who was present in court when the adjournment request was denied and the matter dismissed. Counsel certified that the attorney's failures had resulted in the dismissal of approximately twenty cases. The motion was denied by order dated July 12, 2011.
Plaintiff filed a motion for reconsideration of the July 12 order, arguing that the court had erred in describing the second motion as "actually a motion for reconsideration out of time." Plaintiff agreed that a motion for reconsideration "would have been totally inappropriate" but contended that the motion was in fact a motion filed under Rule 4:50-1. The motion for reconsideration was denied by order dated August 19, 2011.
In his appeal from the orders dated July 12 and August 19, 2011, plaintiff presents the following issues for our consideration:
POINT I
THE TRIAL COURT SHOULD HAVE VACATED THE DISMISSAL PURSUANT TO
RULE 4:50-1(F) BECAUSE THE HANDLING ATTORNEY MISLED THE FIRM AND THE APPELLANT AS TO THE STATUS OF THE CASE
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT RELIEF UNDER RULE 4:50-1 IN THAT THE RULE [PERMITS THE FILING] OF A MOTION TO VACATE A FINAL ORDER WITHIN ONE (1) YEAR.
We are not persuaded by either of these arguments.
At the outset, we find no fault with the trial court's characterization of plaintiff's May 2011 motion as an untimely motion for reconsideration. The fact that the motion was nominally filed as one for relief under Rule 4:50-1 did not preclude the court from recognizing that plaintiff sought the identical relief as that sought in the earlier motion, based upon the deficiencies of the attorney who appeared at the trial call. The May 2011 motion merely expanded the factual support for the argument advanced. The trial court is not required to ignore the reality of the procedural history of the case.
However, even if we accepted plaintiff's argument that the May 2011 motion should be reviewed as a motion for relief pursuant to Rule 4:50-1(f), he has failed to show that the court erred in denying the relief requested. He argues he is entitled to relief pursuant to the "catchall" category of the rule, which is designed to provide relief in "exceptional situations." Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966). Such relief "is available only when 'truly exceptional circumstances are present.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 484 (2012) (quoting Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994)). "Relief from the judgment under subsection (f) requires a showing of exceptional circumstances that demonstrate redress is necessary, and that enforcement of the order or judgment would be unjust, oppressive or inequitable." N.J. Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 438 (App. Div.) (internal citations omitted), certif. denied, 205 N.J. 14 (2010).
In this case, if plaintiff's complaint were reinstated, he would be restored to a position in which he lacked the expert opinion necessary to prove his case. No motion has ever been made to reopen and extend the discovery period. Even in November 2010, plaintiff would not have been entitled to an extension of the discovery period without showing "exceptional circumstances." R. 4:24-1(c). Although plaintiff presented certifications regarding the deficiencies of his attorney in support of his motion to reinstate the complaint, he did not provide any evidence to the trial court, such as the report of a new expert, that his verbal threshold claim would be viable if relief were granted. As a result, he has failed to show that enforcement of the order is "unjust, oppressive or inequitable." See T.G., supra, 414 N.J. Super. at 438.
Plaintiff's appeal from the denial of his motion for reconsideration is governed by Rule 4:49-2 and is a matter to be exercised in the trial court's sound discretion. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)), certif. denied, 195 N.J. 521 (2008). "Reconsideration should be utilized only for those cases [that] fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990); see also Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). We discern no abuse of discretion here.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION