JANET M. LUGO et al. v. CHRISTINE M. MAZOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3335-04T23335-04T2

JANET M. LUGO and

HERMINIO A. LANTIGUA,

Plaintiffs-Appellants,

v.

CHRISTINE M. MAZOR,

Defendant-Respondent.

__________________________________________________

 

Submitted February 8, 2006 - Decided March 15, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County, L-4305-03.

Donald W. Becker, attorney for appellants.

Kramkowski, Lynes, Fabricant & Bressler, attorneys

for respondent (Joan F. Icklan, of counsel and

on the brief).

PER CURIAM

Plaintiff Janet M. Lugo appeals from an order of summary judgment dismissing her personal injury lawsuit against defendant Christine M. Mazor and an order of February 18, 2005 denying her motion for reconsideration. We reverse.

On November 14, 2001, plaintiff was a passenger in an automobile being operated by Herminio A. Lantigua that was in a collision with defendant's car. Plaintiff was subject to the verbal threshold. N.J.S.A. 39:6A-8. After completion of discovery, defendant moved for summary judgment, contending that plaintiff had not met the threshold requirements. An order granting defendant's motion was signed on January 7, 2005.

Regrettably, and for reasons not explained, there is no transcript of the January 7, 2005 motion at which the judge rendered an oral opinion. We glean, primarily from the Case Information Statements, that the judge ruled, at least in part, that plaintiff had failed to provide a comparative analysis under Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993), based on an earlier accident on December 23, 2000. By motion for reconsideration, plaintiff apparently sought to remedy the Polk deficiency by providing medical reports not previously provided in discovery. On the reconsideration denial order, the judge wrote that "both additional pieces of evidence were available or could have been available before the end of discovery and there are no new circumstances to cause the court to reconsider the motion."

The absence of a transcript of the January 7, 2005 hearing, with what we assume were findings of fact and conclusions of law, prevents us from exercising our review function. We decline to exercise our original jurisdiction, R. 2:10-5, and decide the matter based on the parties' briefs, particularly since there have been developments since the judge's decision.

In Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), certif. granted, _____ N.J. ____ (2006), the members of the present panel joined in Judge Conley's opinion that Polk did not survive the enactment of the Automobile Insurance Cost Reduction Act of 1998 (AICRA) as interpreted in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005); see also Juarez v. J.A. Salerno & Sons Inc., 185 N.J. 332 (2005). But see, Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005). We recognize that the judge rejected plaintiff's attempt to cure the Polk deficiency with a late report. However, given the need to have this matter reconsidered, we see no reason why all the relevant reports should not be considered on remand. We do not determine that the judge improperly exercised his discretion in denying the reconsideration motion, but simply recognize the impracticality of adhering to that ruling a year later.

On remand, the judge should reconsider defendant's motion in light of Davidson and all of plaintiff's medical proofs, and make new findings. R. 1:7-4(a). Inasmuch as Davidson will be reviewed by the Supreme Court, the judge should conduct a Polk analysis in the event Davidson is overruled.

Reversed and remanded. We do not retain jurisdiction.

 

The complaint named both Lugo and Lantigua as plaintiffs, and the notice of appeal refers to plaintiffs. In addition, appellant's single volume brief and appendix names both plaintiffs as appellants and lists counsel as "Attorney for Plaintiffs-Appellants." However, appellant's Case Information Statement lists only plaintiff Lugo as the client, and the brief itself only discusses Lugo. Accordingly, we treat Lugo as the only appellant and refer to her as plaintiff. The inaccuracies noted here should not, however, be repeated.

(continued)

(continued)

4

A-3335-04T2

March 15, 2006