JANINE CONTE v. WIESLAW KOSLOWSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4346-04T14346-04T1

JANINE CONTE,

Plaintiff-Appellant,

v.

WIESLAW KOSLOWSKI,

Defendant-Respondent.

________________________________________________________________

 

Submitted November 29, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen

County, Docket No. L-10351-02.

Fusco & Macaluso, attorneys for

appellant (George Allison, on the

brief).

Hack, Piro, O'Day, Merklinger,

Wallace & McKenna, attorneys for

respondent (Robert G. Alencewicz,

on the brief).

PER CURIAM

On the day of trial, plaintiff Janine Conte requested an adjournment to obtain sufficient medical evidence to demonstrate compliance with the limitation on lawsuit threshold, N.J.S.A. 39:6A-8a. Judge Mecca denied the adjournment and granted defendant Wieslaw Kozlowski's pending motion for summary judgment, dismissing plaintiff's complaint "for failure to present medical proofs of a permanent, causally related injury and for plaintiff's failure to submit a Polk [v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993)] [a]nalysis differentiating her alleged current injuries from her previous injuries from a 1994 accident[.]" After moving unsuccessfully for reconsideration, plaintiff appealed. We affirm.

On January 4, 2001, plaintiff's automobile collided with defendant's automobile, and plaintiff allegedly suffered injuries to her face, left wrist, left knee, neck, and lower back. Plaintiff claimed that the collision caused several herniated discs at C4-5; C5-6, with impression upon the spinal canal; and L5-S1, with impression on the left S1 nerve root. In June, 2001, plaintiff had arthroscopic surgery of her left knee, with a postoperative diagnosis of "[c]hondral fracture of patella; synovitis left knee."

On June 28, 1994, plaintiff was involved in a prior motor vehicle accident, suffering injuries to her jaw, left knee, lower back, and neck, including a herniation at C4-5. At that time, to repair the injury to her left knee, plaintiff had surgery consisting of an athroscopic scraping.

Plaintiff filed her complaint against defendant on December 30, 2002, but was unable to serve defendant until June 20, 2003. Defendant defaulted and plaintiff's complaint was administratively dismissed several times for failure to prosecute. Finally, Judge Mecca, on April 19, 2004, signed an order vacating the dismissal, vacating the default, permitting defendant to file an answer, and restoring the matter to the active trial calendar. Defendant's answer was filed on April 15, 2004, and the parties engaged in discovery through the summer of 2004.

The case was arbitrated on July 29, 2004. Defendant's counsel rejected the arbitration and filed and served a notice of trial de novo on August 24, 2004. The court assigned a trial date for November 3, 2004. With the consent of the parties, however, the trial was adjourned until January 3, 2005.

After defendant rejected the arbitration result, defendant moved for summary judgment, arguing that plaintiff failed to surmount the verbal threshold. The motion was originally returnable on December 3, 2004, but was carried to December 17, 2004, and again to January 7, 2005.

On December 22, 2004, plaintiff received a medical report from her treating physician noting that she had "first entered [the doctor's] office on April 16, 2001 . . . complaining of pain in the neck, pain in the midback and pain in the low back after a motor vehicle accident on January 4, 2001." The report detailed the treatment provided and also discussed MRI results of "degenerative disc disease" with several herniations. Notably, the report did not detail permanency or causally relate any of plaintiff's injuries to her 2001 automobile accident.

Even though plaintiff had the December 22, 2004, medical report, she submitted no opposition to the summary judgment motion when it was made and served on October 27, 2004. Not until plaintiff appeared in court at the trial call on January 3, 2005, did she attempt to file and serve the December 2004 medical report.

Plaintiff requested an adjournment because the December 2004 report did "not state with specificity that the accident was the cause of her injuries" and did not contain a Polk analysis. Defense counsel did not oppose the adjournment, provided the summary judgment motion was heard before trial.

Judge Mecca, nevertheless, denied plaintiff's adjournment request, granted defendant's summary judgment motion, and dismissed plaintiff's complaint with prejudice for failure to surmount the limitation on lawsuit threshold.

Less than a month thereafter, plaintiff moved for reconsideration. This reconsideration motion attempted to repair the deficiencies in plaintiff's medical evidence. It was at this time that plaintiff submitted a March 7, 1995, MRI of the lumbar spine, a July 9, 1994, MRI of the left knee, and a July 23, 1994, MRI of the cervical spine. Plaintiff also submitted medical expert reports dated February 1, 2005, and February 3, 2005. The February 1 report opined that the injuries plaintiff suffered were "significant and permanent" and "100% attributable to her [automobile] accident [of January 4, 2001]." Judge Mecca, nevertheless, denied reconsideration and this appeal followed.

Plaintiff argues that Judge Mecca abused his discretion by rejecting plaintiff's adjournment request. Plaintiff claims that though the case was technically over two years old, defendant's answer was not filed until April 15, 2004, after the discovery period had ended. Even though the parties voluntarily engaged in some discovery, plaintiff argues that the late answer resulted in significantly less discovery than the 300 days normally accorded cases assigned to Track 1.

Our problem with this argument is that discovery was not necessary for plaintiff to obtain whatever evidence she needed to oppose defendant's summary judgment motion. After all, plaintiff's physical condition is the issue, which is a matter uniquely within the knowledge of plaintiff and her doctors. In our view, plaintiff had ample opportunity to acquire whatever reports she felt necessary from her own physicians. Furthermore, R. 4:36-3(b) requires that adjournment requests be made in writing not "later than the close of business on the Wednesday preceding the Monday of the trial week." Obviously, plaintiff's request, made orally on the day of trial, violated this rule. Accordingly, we cannot conclude that Judge Mecca abused his discretion by denying plaintiff's oral and untimely request for an adjournment.

We also cannot excuse plaintiff's failure to oppose in timely fashion defendant's summary judgment motion. This motion was adjourned twice at the parties' request, and plaintiff still failed to submit any opposition. Based on what the judge had before him, the decision granting summary judgment is unassailable.

Finally, plaintiff cannot use the reconsideration process to do what should have been done in opposing summary judgment. Reconsideration is only to point out "the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2. Reconsideration cannot be used to expand the record and reargue a lost motion. See Fusco v. Bd. of Educ. of the City of Newark, 349 N.J. Super. 455, 462-63 (App. Div.), certif. denied, 174 N.J. 544 (2002).

Therefore, Judge Mecca did not abuse his discretion in denying plaintiff's reconsideration motion, and we are constrained to affirm, despite evidence that plaintiff may well now have sufficient medical evidence to surmount the threshold. See Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996); Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005); Hardison v. King, 2005 N.J. Super. LEXIS 315, ___ N.J. Super. ___ (App. Div. 2005).

Affirmed.

 

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A-4346-04T1

December 9, 2005