Opinion
DOCKET NO. A-0825-11T1
09-21-2012
ELEANOR FICHTNER, Plaintiff-Appellant, v. SOVEREIGN BANK, Defendant-Respondent.
Jeffrey S. Mandel argued the cause for appellant (PinilisHalpern, LLP, attorneys; Mr. Mandel, of counsel and on the brief). Timothy P. Dronson argued the cause for respondent (Kent & McBride, P.C., attorneys; Ernest F. Koschineg and Jennifer P. Hesler, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves, and J. N. Harris.
On appeal from Superior Court of New Jersey, Law Division, Civil Part, Morris County, Docket No. L-3560-09.
Jeffrey S. Mandel argued the cause for appellant (PinilisHalpern, LLP, attorneys; Mr. Mandel, of counsel and on the brief).
Timothy P. Dronson argued the cause for respondent (Kent & McBride, P.C., attorneys; Ernest F. Koschineg and Jennifer P. Hesler, of counsel and on the brief). PER CURIAM
This personal injury action arises from a slip-and-fall accident on the property of defendant Sovereign Bank. Plaintiff Eleanor Fichtner appeals from the denial of her requests to adjourn the trial due to the unavailability of her liability expert and from a no cause verdict by the jury. For the reasons that follow, we reverse.
On May 13, 2008, plaintiff was injured when she fell while leaving defendant's branch bank located at 73 Diamond Spring Road, Denville, New Jersey. It was the first time plaintiff had been to the bank. Plaintiff fell because she did not see a step from a concrete landing to a lower concrete walkway. She testified at trial there was no line or any other delineation to show there was a step, and the landing and the walkway "looked like one plain blended concrete area."
Trial was initially scheduled for May 25, 2011, but plaintiff obtained an adjournment in lieu of ready-hold status. The next trial date was July 11, 2011. However, the case was not tried due to the lack of available judges, and the trial was adjourned to Monday, September 26, 2011.
On August 10, 2011, plaintiff's counsel confirmed plaintiff's liability expert would be available for the September 26, 2011 trial. Subsequently, on Wednesday, September 21, 2011, counsel again attempted to confirm the trial date with the expert, Michael G. Natoli, P.E. At that time, counsel was informed that Natoli was no longer available during the week of September 26, 2011. The same day, counsel applied for an adjournment, but the civil division manager denied the request because "trial notices were sent out in July." The next day, counsel submitted a second adjournment request in a letter to the civil presiding judge. The letter reads as follows:
Trial in the above matter is scheduled before Your Honor on Monday, September 26, 2011. On August 10, 2011, Plaintiff's engineer expert confirmed that he was available to testify at this trial. My office called the expert's office yesterday to select which day and time next week that he would appear, at which time his assistant informed us that he is no longer available. Plaintiff respectfully requests that the trial be adjourned. I have obtained consent to the adjournment from Defendant's counsel.
Plaintiff's second adjournment application was again denied by the civil division manager, who indicated the request was "late" because it was "received after the close of business on Wednesday preceding the Monday of the trial week." A third adjournment request was denied at the calendar call on September 26, 2011. The trial commenced on September 27, 2011, and the jury returned a no cause verdict the following day. This appeal followed.
Pursuant to Rule 4:36-3(b), "[r]equests for adjournment should be made as soon as the need is known but in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week." We do not agree that plaintiff's request for an adjournment was untimely because plaintiff's initial request was made on Wednesday, September 21, 2011, which was the Wednesday preceding the Monday of the trial week.
Plaintiff argues, among other things, that her case hinged on her liability expert, "who planned to opine that the walkway where [she] fell violated several code provisions." Therefore, the presiding civil judge "should have granted an adjournment to allow [her] to secure her expert, whether through live testimony or a de bene esse deposition." We agree.
According to a report prepared by plaintiff's liability expert dated November 15, 2010, the bank's "exterior egress facilities . . . violate the Uniform Construction Code for the State of New Jersey." In addition, plaintiff's expert concluded the accident "would have been avoided had the exterior egress facilities been properly maintained in accordance with applicable codes, standards and reasonable safety practice."
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We review a trial court's denial of a request for adjournment under the abuse of discretion standard. State v. D'Orsi, 113 N.J. Super. 527, 532-33 (App. Div.), certif. denied, 58 N.J. 335 (1971). Whether there was an abuse of discretion depends on the amount of prejudice suffered by the aggrieved party. State v. Smith, 66 N.J. Super. 465, 468 (App. Div. 1961), aff'd, 36 N.J. 307 (1962). Refusal to grant an adjournment will not lead to reversal "unless an injustice has been done." Nadel v. Bergamo, 160 N.J. Super. 213, 218 (App. Div. 1978).
In this case, we are compelled to intervene because it is clear: (1) the need for an adjournment did not result from careless conduct by plaintiff or her attorney; (2) there was a timely request for an adjournment, which defendant did not oppose; and (3) plaintiff's liability expert was essential to refute defendant's expert, who testified the concrete walkway and step complied with the State's construction code. Under these circumstances, we are satisfied plaintiff was entitled to "a reasonable modicum of judicial indulgence." Tucci v. Tropicana Casino, 364 N.J. Super. 48, 54 (App. Div. 2003); see also Pepe v. Urban, 11 N.J. Super. 385, 389 (App. Div.) ("We must never forget that courts exist for the sole purpose of rendering justice according to law. No eagerness to expedite business, or to utilize fully the court's time, should be permitted to interfere with our high duty of administering justice in the individual case."), certif. denied, 7 N.J. 80 (1951). Accordingly, the September 28, 2011 order of disposition is reversed, and the matter is remanded for a new trial.
Reversed and remanded.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
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CLERK OF THE APPELLATE DIVISION