ALVOY MITCHELL, SR v. SHOP RITE OF HAINESPORT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4402-09T2

ALVOY MITCHELL, SR.,

Plaintiff-Appellant,

v.

SHOP RITE OF HAINESPORT,

Defendant-Respondent.

July 5, 2011

Submitted April 11, 2011 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3481-07.

Alvoy Mitchell, Sr., appellant pro se.

Margolis Edelstein, attorneys for respondent (Walter H. Iacovone, on the brief).

PER CURIAM

Plaintiff Alvoy Mitchell, Sr., sued defendants Shop Rite of Hainesport1 (defendant), John Doe, and XYZ Corporation for personal injuries. The trial court dismissed the matter on defendant's application on May 4, 2010, the day of trial, because plaintiff could not produce a medical expert. We affirm.

Defendant moved for dismissal when plaintiff's attorney explained to the court that his client could not pay the expert's fee for testimony. As an aside, the court observed that even the letter report authored by plaintiff's treating physician merely stated that the doctor "felt" plaintiff's injury was the result of the incident. In other words, in addition to failing to expound on the nature and extent of the injury, or the prognosis, the treating physician's letter did not establish proximate cause. Plaintiff's complaint alleged that on December 26, 2005, while standing in a supermarket aisle, he was struck on the left foot by a can.

Prior to the dismissal, in open court, the judge attempted to obtain plaintiff's consent to defendant's $15,000 offer of settlement. The judge carefully explained that if the offer was not accepted, the matter could not proceed to trial because of the unavailability of expert testimony. Although the dismissal was without prejudice for a period of thirty days, the grace period was granted only to permit plaintiff to reopen the case if he were able to retain an expert.

Plaintiff pro se filed a notice of appeal on June 2, 2010, less than a month after the trial date, in which he stated he wished to accept the $15,000 because he was advised by Medicare that the money would not be used to reimburse medical expenses it had previously paid on his behalf. The letter accompanying his notice of appeal reiterates an understanding of the judge's statements not supported by the record; namely, that he was being given thirty days in which to obtain Medicare's consent to his receipt of the entire $15,000. We read the transcript to mean that the judge dismissed the complaint because plaintiff did not have an expert witness. Whether plaintiff had to reimburse Medicare simply did not enter in the judge's decision.

Furthermore, plaintiff's notice of appeal and one-page letter are not the equivalent of a brief and appendix in which the errors of the court are specified, and record support supplied and law explained for that position. See R. 2:6-1; R. 2:6-2 (briefs); R. 2:6-9 (consequence of inadequate brief).

Finally, although plaintiff's claim of error is not completely clear, it appears to be his direct application to compel defendant to pay him the money that was offered the day of trial. On an appeal, we are unable to provide plaintiff with that relief.

1 Defendant's brief states the correct name is "Eickhoff's Supermarkets, Inc."