MICHAEL R. GORZYNSKI v. FRANK HUMIEC, JR.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-7081-03T3

MICHAEL R. GORZYNSKI,

Plaintiff-Appellant,

v.

FRANK HUMIEC, JR.,

Defendant-Respondent,

and

CNA/ENCOMPASS INSURANCE COMPANY,

Defendant.

_______________________________________

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September 27, 2005

Submitted September 12, 2005 Decided

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-1032-02.
 
Fusco & Macaluso attorneys for appellant (Vincent J. Bochis, on the brief).

McDermott & McGee attorneys for respondent (Kevin J. McGee, on the brief).
 
PER CURIAM
Plaintiff Michael R. Gorzynski appeals from an order entered July 9, 2004 denying his motion to vacate an order dated June 6, 2003 granting summary judgment in favor of defendants Frank Humiec, Jr. and CNA/Encompass Insurance Company, and an order filed August 20, 2004 denying plaintiff's motion for reconsideration. We affirm.
On January 21, 2002, plaintiff filed an action seeking damages for personal injuries arising out of an automobile accident that occurred on October 2, 2000. It is undisputed that plaintiff is subject to the limitation on lawsuit threshold in N.J.S.A. 39:6A-8. On April 22, 2003, Humiec filed a motion for summary judgment, arguing that plaintiff did not satisfy the threshold. The motion was returnable on May 23, 2003.
Plaintiff obtained defendant's consent to adjourn the return date for the motion. On May 2, 2003, plaintiff's attorney called the chambers of Judge Thomas C. Brown, who had been assigned to handle the motion, and requested an adjournment by leaving a message on the answering machine. Plaintiff's counsel did not take any further action respecting the motion until May 22, 2003, when he contacted Judge Brown's chambers and learned that the judge had not adjourned the motion. Because plaintiff did not file any papers in response to the motion, the judge treated the motion as unopposed and, by order filed June 6, 2003, granted summary judgment in favor of defendants. The order was served upon plaintiff on or about June 19, 2003. Plaintiff did not file a motion for reconsideration or appeal from the final judgment.
On May 28, 2004, plaintiff filed a motion to vacate the June 6, 2003 order, relying upon R. 4:43-3 and R. 4:50-1. Plaintiff's counsel asserted in a supporting certification that he did not anticipate that his request for an adjournment would be denied. He further asserted that plaintiff had meritorious claims and Judge Brown's refusal to adjourn the motion was drastic and unwarranted.
Because Judge Brown had retired, the motion was heard by Judge Rachel N. Davidson. In a memorandum of decision dated July 9, 2004, the judge noted that R. 4:50-2 requires that a motion under R. 4:50-1 must be made within a reasonable time from the entry of the judgment or order. The judge stated:
Plaintiff sought an adjournment on May 2, 2003. Despite apparently not receiving any response from Judge Brown's chambers indicating that the request for an adjournment was granted, plaintiff did not file any opposition papers, a lapse that the certification supporting the current motion does not address. Plaintiff's counsel made a second request (the date is not provided) and was advised on May 22, 2003 that the request was denied. The certification supporting the current motion does not address whether plaintiff's counsel appeared for oral argument on May 23, 2003. The defendant's motion was granted and defense counsel sent a copy of the order to plaintiff's counsel on June 19, 2003.

Despite knowing that the request for an adjournment was denied since at least May 22, 2003, and knowing that the defendant's motion was granted since June 2003, plaintiff's counsel waited until May 28, 2004 to file this motion. Again, the supporting certification is silent as to the reason for this extraordinary delay and it was also not addressed by the moving party at oral argument.

The judge determined that the motion had not been made within a reasonable time and therefore entered an order on June 6, 2003 denying the motion. Plaintiff sought reconsideration which the judge denied by order filed August 20, 2004.
Having thoroughly reviewed the record and carefully considered the contentions raised by plaintiff, we are satisfied that the motion for relief from the June 6, 2003 order was correctly denied. We therefore affirm substantially for the reasons stated by Judge Davidson in her memorandum of decision. We add the following.
A party may seek relief from a final judgment pursuant to R. 4:50-1 for the following reasons:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud..., misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

A motion under R. 4:50-1 "shall be made within a reasonable time." R. 4:50-2. However, a motion for relief for the reasons stated in R. 4:50-1 (a),(b) and (c) must be made within one year after the entry of the judgment or order was entered. Ibid. A motion brought pursuant to R. 4:50-1 is addressed to the discretion of the trial court and such relief should be granted sparingly. Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283-84 (1994).
We are satisfied that the motion judge did not abuse her discretion in denying plaintiff's motion. Here, plaintiff waited almost a full year to seek relief from the June 6, 2003 order. Like the motion judge, we are convinced that the motion was not made within a reasonable time as required by R. 4:50-2. In a certification dated August 4, 2004, plaintiff's counsel stated that the motion to vacate was not filed until May 28, 2004 because plaintiff's personal injury protection benefits had been terminated and "time elapsed" before an orthopedist agreed to perform surgery. Counsel asserted that the motion to vacate could not be made until after surgery had been performed and the surgeon's reports were received. Counsel also stated that the decision to wait for the medical reports was made for the purpose of "nailing down" the facts to make certain that the record would justify denial of summary judgment.
In our view, these reasons are not an adequate explanation for counsel's delay in seeking relief under R. 4:50-1. The record shows that an MRI of plaintiff's cervical spine performed by Montclair Radiology on October 13, 2003. The MRI indicated that plaintiff's cervical spine and cord were normal. However, a CT scan performed on October 21, 2003 showed a lateral disc herniation at C6-C7, producing radicular findings on the right. A medical record dated October 29, 2003 states that plaintiff had elected to undergo an anterior cervical discectomy and fusion at C6-C7 with allograft, plate and screw fixation. The surgery was performed on December 3, 2003 at St. Mary's Hospital in Passaic. The record thus establishes that plaintiff had sufficient information in October 2003 to seek relief under R. 4:50-1. In the circumstances, the delay in bringing the motion was not reasonable.

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Affirmed.
 

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