GARY SMITH v. ROBERT MUNRO, JR

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0520-07T20520-07T2

GARY SMITH,

Plaintiff-Appellant,

v.

ROBERT MUNRO, JR.,

Defendant-Respondent.

__________________________

 

Argued January 20, 2009 Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3658-05.

Aram Ingilian argued the cause for appellant (Bakmazian & Associates, attorneys; Mr. Ingilian, on the brief).

Michelle Wall argued the cause for respondent (Melli, Guerin & Wall, attorneys; Ms. Wall, of counsel; Jennifer L. Sanyshyn, on the brief).

PER CURIAM

On September 4, 2007, plaintiff Gary Smith's request for an adjournment in the Law Division was denied, and his complaint was subsequently dismissed without prejudice. Plaintiff's subsequent application for reinstatement was denied. We reverse.

On the morning of the first trial listing, September 4, 2007, plaintiff's counsel advised that he intended to call two physicians, a Dr. Ragukonis and a Dr. Friedlander, as expert witnesses regarding his claim for damages for personal injuries. Counsel for defendant Robert Munro, Jr., objected because no narrative report from either doctor had been previously supplied. Plaintiff's attorney then stated that he would present the testimony of Dr. Howard Baruch, plaintiff's treating physician and surgeon, whose report had been provided. Counsel was directed to return at 1:30 for jury selection.

Just before jury selection began, plaintiff's attorney announced that Dr. Baruch could not appear that day, but that there was "a good chance that he could come on September 18 and testify." It was "guarantee[d] 100% that he could come on September 25 and testify on behalf of the plaintiff." Plaintiff's attorney added that this was the first request for adjournment, and that "some efforts" had been made to get the doctor to court.

The trial judge, understandably frustrated, responded that the case was "exceedingly old," the complaint having been filed on May 20, 2005, even though the accident occurred on May 23, 2003. Extensions had been previously granted in order to complete discovery.

The judge said, "To now not be ready on the day of trial after pre-trial motions, etc., had been held does not show good cause to adjourn this matter any further." He referred to a prior dismissal and reinstatement of the complaint in June 2006 and to the arbitration "as late as" May 17, 2007. Therefore, the judge concluded, because no good cause to adjourn the trial had been established, and expert testimony was necessary, the matter would be dismissed without prejudice. The judge made this ruling despite the fact that Rule 4:37-2(d) states that "any dismissal not specifically provided for by Rule 4:37, other than a dismissal for lack of jurisdiction, operates as an adjudication on the merits."

Although the order of dismissal was without prejudice, plaintiff appealed from the decision on October 2, 2007. On some unspecified date, plaintiff's counsel also filed a motion to reinstate the complaint. That application was first denied on January 4, 2008. As a result of a conference with the Civil Appeals Settlement Program, a limited remand was ordered for the trial judge to consider the application for reinstatement.

On February 14, 2008, the judge again denied reinstatement. Although he affirmed that his September 4 dismissal was issued without prejudice as a "dismissal based on a court's procedural inability to consider a case," he nonetheless found reinstatement to be unwarranted. The judge noted that the rules require requests for postponement to be made prior to a trial date, as soon as the problem requiring the adjournment is known. He relied upon Rule 4:36-3(b), which states that "in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week."

We find that the court's reliance on the rule, and the refusal to reinstate, was a mistaken exercise of discretion. Plaintiff did not know prior to the trial date that an adjournment request would have to be made. Therefore, he could not have made the request earlier than the day of trial.

As we have previously said in the context of reinstatements of dismissed complaints, "Until courts have exhausted means of performing their shepherding function which do not terminate or deeply affect the outcome of a case, they ought not bar a litigant's way to the courtroom." Audubon Volunteer Fire v. Church Constr. Co., 206 N.J. Super. 405, 407 (App. Div. 1986).

Requests for adjournment are subject to an abuse of discretion standard. Rocco v. N.J. Transit Rail Operations, 330 N.J. Super. 320, 343-44 (App. Div. 2000). We understand the challenges experienced by trial courts in their efforts to dispose of cases in a timely manner. The difficulty of the task is highlighted where, as here, no explanation, much less a good explanation, was offered by plaintiff's attorney for his failure to provide narrative reports of anticipated testimony by the two physicians on the witness list or to schedule Dr. Baruch's appearance appropriately. A dismissal without prejudice, however, was not the preferred course of action. Rather, the court should have given greater consideration to the request for adjournment. "While calendar objectives are not to be lightly disregarded, they must always 'be pursued consistently with and not counterproductively to the real business of the courts, which is to dispense substantial justice on the merits.'" Luedtke v. Shobert, 342 N.J. Super. 202, 214 (App. Div. 2001) (quoting Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982)). Accordingly, we reinstate the complaint and remand the matter for trial.

 
Reversed and remanded.

(continued)

(continued)

5

A-0520-07T2

May 20, 2009