MICHAEL SORRENTINO v. MICHAEL S. BORGO
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-2223-09T3
MICHAEL S. BORGO, and
JOHN DOES NO. 1 THROUGH 5,
January 10, 2011
Submitted November 15, 2010 - Decided
Before Judges Kestin and Newman.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9926-07.
Barry W. Sirota and Dell'Italia, Affinito & Santola, attorneys for appellant (Mr. Sirota and David P. Affinito, on the brief).
Respondents have not filed briefs.
This appeal comes before us in an extraordinary procedural posture and with an unusual procedural history. Plaintiff, Michael Sorrentino, is the only party currently participating in the appeal. We remand for further proceedings before the trial court on questions not heretofore addressed.
The personal injury complaint, dated December 12, 2007, alleged that, on December 29, 2005, plaintiff had tripped and fallen on a raised sidewalk slab adjacent to residential property owned and occupied by the only named defendant, Michael S. Borgo, sustaining serious injury to a knee that was treated surgically and may, because of continuing problems, require a total knee replacement in the future. The complaint also named "John Does No. 1 through 5" as defendants, alleging in its second count that they "are persons who repaired the sidewalk or otherwise used it in a negligent and careless manner so as to create the condition which caused the injuries sustained by plaintiff."
The matter came before the trial court on defendant Borgo's October 22, 2009 motion for summary judgment and plaintiff's cross-motion to amend his answers to interrogatories to include the expert report of a professional engineer and to extend discovery. Borgo's argument was based, in part, on the rule of law that the owner of residential property has no duty to maintain a sidewalk abutting his property. See Brown v. St. Venantius School, 111 N.J. 325, 327 (1988); Smith v. Young, 300 N.J. Super. 82, 85 (App. Div. 1997).
The motion judge denied plaintiff's cross-motion because it had been made over six months beyond the discovery end date, after the parties had proceeded through arbitration, and only one month before the scheduled date of trial. According to the judge, plaintiff had made no adequate showing of exceptional circumstances or other reason for the timing of the cross-motion, and defendant would be prejudiced if the relief sought were to be granted so close to the trial date.
The motion for summary judgment was granted because, in the motion judge's estimation, plaintiff could neither prevail without an expert's report nor could he overcome the rule of law immunizing the owners of residential property from liability in such matters. By the terms of the trial court's order, the complaint was dismissed in its entirety.
Plaintiff appealed from the December 4, 2009 orders granting defendant Borgo's motion for summary judgment and dismissing the complaint, and denying plaintiff's cross-motion. Following a pre-argument conference under the Civil Appeals Settlement Program, plaintiff agreed to dismiss the appeal as to defendant Borgo, reserving "his right to continue to appeal the [trial] court's dismissal of plaintiff's claims against" the five "John Doe" defendants. In his letter to this court expressing his agreement to dismiss the appeal as to defendant Borgo, plaintiff identified the "John Doe" defendants, asserting that their "identities, locations and significant extent of work done was not known during the discovery period, [and] was never disclosed by the defendant-Borgo." Plaintiff had learned of their involvement in Mrs. Borgo's deposition.
On April 5, 2010, Judge Landau entered an order dismissing the appeal as to defendant Borgo, "without prejudice to appellant's right to continue his appeal from denial of the motion for leave to extend discovery." The order recited that the trial court had dismissed the case "in its entirety" although the "John Doe" defendants had not been "identified until after expiration of the discovery period prescribed by Rule; and were therefore never served."
In respect of the issues that remain for us to dispose of on appeal, plaintiff propounds three arguments: that the [trial] court should not have dismissed the complaint against the "John Doe" defendants; that if expert testimony was required in the case, the trial court should have granted plaintiff's motion to present it in respect of the "John Doe" defendants; and that the substitution of the "John Doe" defendants is permissible as a matter of law. Because none of these arguments has heretofore been presented or considered, the matter must be returned to the trial court for application of its insights and judgment before the issues are considered on appeal.
Whether or not plaintiff is entitled to proceed against the "John Doe" defendants implicates a series of questions regarding the meaning and application of New Jersey Court Rule 4:26-4 in the context of all the extant circumstances. Resolution of that question requires the creation of a record and findings concerning plaintiff's conduct vis- -vis those defendants, his attention to and compliance with the procedural nuances of the Rule, see Pressler & Verniero, Current N.J. Court Rules, comments on R. 4:26-4 (2011), and a determination whether substitution at this time would frustrate the intendment of the Rule or any other legal precept, or unduly prejudice the interests of any or all of the "John Doe" defendants.
These considerations include questions bearing on whether the trial court was correct to dismiss the complaint as to the "John Doe" defendants when it did, in a proceeding in which they were only nominally present. As pertinent as these questions may be, the issues to be presented will necessarily be different in a context that is changed from the situation previously before the trial court.
At the moment, from the perspective of the "John Doe" defendants, this proceeding is ex parte. Among the other questions to be considered, a determination needs to be made whether the next stage, i.e., this remand to the trial court, may continue to be ex parte until those defendants have been served with process, or must be on notice to each of those defendants beforehand. That, too, is a question to be resolved by the trial court in the first instance.
It seems clear that the question of fairness that surrounds the use of an expert's report is a different one from the point of view of defendants who have never been actively involved in the litigation to date than it was from the perspective of a defendant who had been served and engaged from the outset and, in respect of whom, a trial date pended in the near future. That is not to say the result on the questions of the need for and the use of the expert's report is foreordained; we only point out how different the questions may be in the context presented at the time they are considered from the perspective of the involvement of the "John Doe" defendants, from what they were when the focus was primarily on defendant Borgo.
For all the foregoing reasons, we remand the matter to the trial court for such further proceedings as it may deem necessary to explore and decide the issues bearing upon the involvement of the "John Doe" defendants. We do not retain jurisdiction.