Opinion
DOCKET NO. A-3504-10T4
06-07-2012
AKASH GHULYANI, Plaintiff-Appellant, v. MORGAN G. DOWD and JOSEPH L. DOWD, Defendants-Respondents.
J. Silvio Mascolo argued the cause for appellant (Rebenack Aronow Mascolo & Miller, LLP, attorneys; Mr. Mascolo of counsel and on the brief). Herbert R. Ezor argued the cause for respondents (Newman & Andriuzzi, attorneys; Mr. Ezor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Kennedy and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. DC-6435-09.
J. Silvio Mascolo argued the cause for appellant (Rebenack Aronow Mascolo & Miller, LLP, attorneys; Mr. Mascolo of counsel and on the brief).
Herbert R. Ezor argued the cause for respondents (Newman & Andriuzzi, attorneys; Mr. Ezor, on the brief). PER CURIAM
Plaintiff appeals from an order entered on January 5, 2011, denying his motion to vacate a December 21, 2009 order dismissing his complaint without prejudice for failure to appear at trial. He also appeals from orders entered on February 8 and 25, 2011, denying his motion for reconsideration. For reasons expressed hereinafter, we affirm.
To put this matter in perspective, it is necessary to recount the somewhat unusual procedural history that preceded the orders on appeal. On February 29, 2008, plaintiff, acting pro se, filed a complaint in the Special Civil Part in Morris County against defendants Morgan and Joseph Dowd. The complaint alleged that plaintiff suffered various economic injuries as a consequence of an intersection accident on August 17, 2007, between his vehicle and a vehicle driven by Morgan Dowd and owned by Joseph Dowd. The complaint asserted a claim of negligence against Morgan Dowd and a claim based upon "respondeat superior" against Joseph Dowd.
Defendants thereafter engaged counsel and an answer was filed on their behalf. Following discovery, trial was scheduled for June 30, 2008. Defendants appeared at the trial call, but plaintiff did not appear, and an order was entered dismissing the complaint without prejudice. Plaintiff went to the courthouse later in the day and was told he would have to file a motion to reinstate his complaint.
Shortly thereafter, plaintiff filed a motion to vacate the dismissal in which he stated that his failure to appear at the trial call was "[d]ue to an urgent personal matter" constituting an "emergency situation." On July 21, 2008, the motion judge entered an order giving plaintiff ten days "to describe and substantiate, through documentary proof, the alleged emergency that precluded [plaintiff's] appearance for trial." The order also required plaintiff to "establish a meritorious claim."
In response, plaintiff submitted a certification in which he asserted that on the morning of trial his "dog was demonstrating change in his behavior" [sic] and he noticed a "bald spot" in the dog's coat. This prompted plaintiff to "research[] the internet" which revealed "several non life threatening reasons" for the dog's condition.
On August 20, 2008, the judge denied plaintiff's motion to reinstate the complaint, finding plaintiff's explanation "insufficient to establish excusable neglect" and noting that by plaintiff's "own admission the condition of the poodle (a bald spot) did not require immediate attention." Plaintiff did not challenge that order.
Rather, almost a year later, on June 2, 2009, plaintiff filed a second complaint against defendants for the same relief he sought in his 2008 complaint. Plaintiff alleged the same causes of action he alleged earlier. An answer was filed on behalf of defendants and, following discovery and the adjournment of two earlier trial dates, trial was scheduled for December 21, 2009. Again, plaintiff did not appear at the trial call and his complaint was dismissed without prejudice.
On December 10, 2010, plaintiff moved to vacate the dismissal entered almost a year earlier and contended that he had arrived at the courthouse after the trial call was concluded on December 21, 2009, due to severe weather over the weekend which resulted in train delays. The judge denied the motion on January 5, 2011, and explained, in part, that "[r]egardless of the weather conditions on December 21, 2009, plaintiff does not attempt to justify why he waited one year to reinstate his case[.]"
Plaintiff then moved before the trial court for "leave to appeal" on January 25, 2011, contending his claims against defendants involved "no material factual disputes" and that he was entitled to judgment "as a matter of law[.]" Plaintiff made no effort to explain his delay in filing the motion to vacate the dismissal. The court initially denied the motion on February 8, 2011, on the basis that the Law Division is without jurisdiction to consider appeals "of its own decisions." Thereafter, on February 25, 2011, apparently having chosen sua sponte to view the motion as one for reconsideration, the court again denied it on several grounds, including the continued failure of plaintiff to explain his delay in seeking to vacate the 2009 order dismissing his complaint without prejudice.
This appeal followed.
On appeal, plaintiff contends that his complaint against defendants was meritorious and that the court should have imposed a lesser sanction. In his brief, plaintiff, for the first time, explains his delay in seeking to vacate the dismissal by asserting that, as a pro se litigant, he "took a longer than expected time period to determine the procedural mechanism of reinstating the [c]omplaint and obtaining evidence" to support the motion.
After carefully considering the record, briefs and arguments of the parties, we are satisfied that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments.
The sanctions for failure to appear are established by R. 1:2-4 which provides:
(a) Failure to Appear. If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party on the call of a calendar . . . or on the day of trial . . . the court may order any one or more of the following: (a) the payment by the delinquent attorney or party . . . of costs, in such amount as the court shall fix, to the clerk of the county in which theGenerally, such dismissals are without prejudice unless the court for good cause orders otherwise. Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 393 (App. Div. 1994). We employ an abuse of discretion standard in reviewing a trial court order denying a motion to vacate the dismissal of a pleading in these circumstances. ASHI-GTO Assoc. v. Irvington Pediatrics, 414 N.J. Super. 351, 359 (App. Div.), certif. denied, 205 N.J. 96 (2010); see Santos v. Estate of Santos, 217 N.J. Super. 411, 415 (App. Div. 1986) ("'judicial discretion' means sound discretion, exercised not arbitrarily or willfully, but with just regard to what is right and equitable under the circumstances and the law.") (citation omitted).
action is to be tried . . . or to the adverse party; (b) the payment by the delinquent attorney or party . . . of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissal of the complaint . . .; or (d) such other action as it deems appropriate.
R. 4:50-1 applies to dismissals without prejudice entered pursuant to R. 1:13-7, see DiMura v. Knapik, 277 N.J. Super. 156 (App. Div. 1994), and its principles may serve as an appropriate guide for consideration of dismissals under R. 1:2-4, as well. "A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). We will not disturb a trial court's determination to grant or deny an application to open a judgment "unless it represents a clear abuse of discretion." Ibid. In our review, we do not "decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court. The question is only whether the trial judge pursued a manifestly unjust course." Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968).
Guided by these principles, we do not find that the motion judge's determination here constituted an abuse of discretion. Plaintiff has displayed a marked and casual disregard of his obligations to both the court and to his adversaries in this matter. His initial lawsuit was dismissed without prejudice because of his failure to attend the trial call for reasons that border on the frivolous. Thereafter, he waited almost a year and began the process over again. Once more, his complaint was dismissed because he missed the trial call. He then delayed almost a year before moving to vacate the dismissal and his explanation for the delay is, in a word, specious.
We have little doubt that had plaintiff promptly moved to restore his complaint, his motion would have been successful. However, his repeated dilatory conduct has effaced whatever just cause he might otherwise have been able to muster. Languor defeats the prompt and fair adjudication of claims between parties. Cf. Amo v. Genovese, 17 N.J. Super. 109, 111 (App. Div. 1951).
Likewise, the motion judge's denial of reconsideration does not constitute error. The judge's disposition of plaintiff's motion for reconsideration is governed by Rule 4:49-2 and is a matter left to the judge's sound discretion. Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). Reconsideration is appropriate when "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 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 ASHI-GTO Assoc., supra, 414 N.J. Super. at 360. In this instance, the judge neither ruled on a palpably incorrect basis nor failed to appreciate probative evidence and thus appropriately exercised her discretion to deny the motion for reconsideration.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION