JOSEPH A. GERRY, JR. v. KAMAL S. REDD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1937-05T31937-05T3

JOSEPH A. GERRY, JR.,

Plaintiff-Respondent,

v.

KAMAL S. REDD,

Defendant-Appellant,

and

MARY L. HEIGHT and ANTHONY

MONTGOMERY,

Defendants.

_________________________________________________________

 

Submitted December 6, 2006 - Decided December 22, 2006

Before Judges C.S. Fisher and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-5164-02.

Barry & Prindiville, attorneys for appellant (John C. Prindiville, on the brief).

William W. Graham, attorney for respondent.

PER CURIAM

Plaintiff commenced this action as a result of being injured in an automobile accident caused by the negligence of defendant Kamal S. Redd (defendant). The parties stipulated to defendant's liability and the matter was tried solely on the issue of damages, resulting in a $55,000 jury award in favor of plaintiff.

Defendant appealed, arguing:

I. THE COURT'S FAILURE TO SUPPRESS THE LATE REPORT OF DR. SILVERMAN WAS REVERSIBLE ERROR.

II. THE TESTIMONY OF THE PLAINTIFF REGARDING THE DEFENDANT BEING CHASED BY THE POLICE FOR FLEEING FROM THE ACCIDENT SCENNE [SIC] WAS PREJUDICIAL.

III. THE PLAINTIFF'S BELATED CLAIM OF AGGRAVATION OF A PRE-EXISTING CONDITION SHOULD HAVE BEEN BARRED.

IV. THE AWARD OF ATTORNEY FEES AND COSTS TO PLAINTIFF PURSUANT TO RULE 4:21A WAS ERROR IN THIS INSTANCE.

We find there is insufficient merit in Point III to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We also find an absence of merit in the remaining arguments for the following reasons.

In Point I, defendant argues that plaintiff should have been barred from submitting a late report prepared by Dr. Silverman, plaintiff's medical expert. Plaintiff acknowledged that he was tardy in submitting Dr. Silverman's narrative report. But the information contained within that report was timely provided to defendant, in other forms, prior to the close of the discovery period. In addition, plaintiff's counsel provided a certification in opposition to defendant's motion to suppress the report, explaining the circumstances that delayed submission of the report, which persuaded the judge to extend the discovery end date. We conclude that Judge Quinn properly exercised his discretion in permitting plaintiff's service of and reliance upon the late report in light of the exceptional circumstances outlined in plaintiff's attorney's certification and in light of the fact that defendant had already been made aware of the substance of the expert's opinions through other materials previously and timely provided in discovery.

In Point II, defendant complains that plaintiff breached the agreement of counsel that there would be no discussion at trial about how the accident occurred. Notwithstanding that agreement, plaintiff explained in his direct testimony what he observed prior to the collision, testifying that defendant's vehicle ran through a stop sign at a high rate of speed; defendant was apparently chasing another vehicle which had been carjacked from a friend of defendant's. Defendant complains that this testimony placed him in a bad light and generated what he claims to be an excessively high damage award. In denying defendant's motion for a new trial, Judge Locascio observed that defendant did not object when plaintiff recounted his pre-collision observations and that this testimony was very brief. As a result, the judge concluded that this testimony did not unfairly taint the proceedings and did not cause a miscarriage of justice. We affirm on this point substantially for the reasons set forth by Judge Locascio in his oral decision denying defendant's R. 4:49-1 motion for a new trial.

In Point IV, defendant argues that Judge Locascio abused his discretion in awarding counsel fees and costs. The matter was submitted to arbitration prior to trial, resulting in an award in favor of plaintiff in the amount of $15,000. Defendant demanded a trial de novo and, as we have indicated, the jury awarded plaintiff $55,000. The significant difference between the arbitration award and the jury verdict authorized the judge to award fees and costs in favor of plaintiff. See R. 4:21A-6. Defendant argues that the issuance of such an award was unfair in these circumstances because the factual record placed before the arbitrator was different from the evidence heard by the jury at trial in that Dr. Silverman's report, referred to in our discussion of defendant's Point I, was served after the arbitration had concluded. As indicated above, however, this late narrative report added no new substance to the matter and it was thus appropriate for Judge Locascio to render the award because the evidence before the arbitrator was not materially different from that presented at trial.

Affirmed.

 

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A-1937-05T3

December 22, 2006