JAMES J. BONAFIELD et al. v. MILES J. KELLY et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3312-04T13312-04T1

JAMES J. BONAFIELD and

BARBARA BONAFIELD, his wife,

Plaintiffs-Appellants,

v.

MILES J. KELLY and EDWIN NIEVES,

Defendants-Respondents.

 

Submitted: October 12, 2005 - Decided:

Before Judges Stern and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket Number PAS-L-2950-01.

James J. Bonafield, appellant, pro se, and attorney for appellant Barbara Bonafield.

Norton, Arpert, Sheehy & Higgins, attorneys for respondents (Harry D. Norton, Jr., of counsel; Christina DiGeronimo, on the brief).

PER CURIAM

In this automobile negligence action, plaintiffs James J. Bonafield and Barbara Bonafield appeal from an order entered in the Law Division on February 10, 2005, denying their application to restore their complaint against defendants Miles J. Kelly and Edwin Nieves to the trial calendar. We affirm.

On December 22, 1999, plaintiff James J. Bonafield was a passenger in an automobile being operated by Marlene Olsavsky on Hazel Street in Clifton when it collided with a truck owned by defendant Miles F. Kelly and being operated by defendant Edwin Nieves. On June 11, 2001, plaintiffs filed a complaint in the Law Division, alleging that, as a result of the collision, plaintiff James J. Bonafield purportedly sustained personal injuries, allegedly as a result of the negligence of defendants. The claim of plaintiff Barbara Bonafield was for loss of consortium. James J. Bonafield is an attorney and filed the complaint in a pro se capacity, and in representation of his wife.

The case was listed for trial for the week of September 12, 2002 before Judge Humphreys. Plaintiffs' request for an adjournment was granted and the matter was re-listed for November 12, 2002, before Judge Scancarella. On that date, the matter was referred by Judge Scancarella to Judge Humphreys for trial. However, prior to commencement of trial, Judge Humphreys permitted Mr. Bonafield an opportunity to return to his law office to retrieve the balance of his file. Mr. Bonafield did not return to court, and the case was dismissed. On November 14, 2002, by facsimile transmission, Mr. Bonafield sent a request for adjournment to Judge Scancarella, with a copy to Judge Humphreys that stated:

THIS MATTER WAS LISTED FOR TRIAL BEFORE JUDGE SCANCARELLA ON 11-12-02. THE MATTER WAS REFERRED TO JUDGE HUMPHREYS FOR TRIAL.

INASMUCH AS I DID NOT HAVE THE COMPLETE FILE WITH ME, I REQUESTED AND RECEIVED PERMISSION FROM JUDGE HUMPHREYS TO GO BACK TO MY OFFICE FOR THE COMPLETE FILE TO PREPARE THE CASE FOR TRIAL. EN ROUTE TO MY OFFICE AND ABOUT 2 BLOCKS FROM MY OFFICE, I WAS STRUCK BROADSIDE BY AN 18-WHEELER TRACTOR-TRAILER WHO TURNED INTO MY VEHICLE AND TOTALLED MY VEHICLE.

I WENT TO PASSAIC GENERAL HOSPITAL FOR EMERGENCY-ROOM TREATMENT; AND ALTHOUGH IT WAS RECOMMENDED THAT I BE ADMITTED FOR OBSERVATION AND TESTING, I SIGNED MYSELF OUT. I AM UNDER THE CARE OF DR. A.R. TAHA, 1003 MAIN AVENUE, CLIFTON; AND BECAUSE OF MY INJURIES, HE HAS RECOMMENDED THAT I NOT ENGAGE IN ANY STRESSFUL MENTAL ACTIVITIES DUE TO MY INJURIES FOR AT LEAST 8 WEEKS. I INJURED MY HEAD AND SUSTAINED POST-CONCUSSION INJURIES.

ACCORDINGLY, AND DUE TO MY DOCTOR'S ADVICE, I HEREBY REQUEST AN ADJOURNMENT OF THE MATTER FOR AT LEAST 8 WEEKS.

THANK YOU FOR YOUR COURTESY AND COOPERATION IN THIS MATTER.

There is nothing in the record that specifically states what action was taken when plaintiff's facsimile-transmitted request for an adjournment was received two days after the case had been dismissed. Nothing further appears in the record on appeal until plaintiffs filed, on or about February 4, 2005, a motion seeking to restore the case to the trial calendar. The supporting certification by plaintiff James J. Bonafield states, in pertinent part:

6. I requested and obtained from Judge Humphreys an indefinite adjournment of this matter due to my injuries.

7. Since that accident in which I injured my left knee I have been unable to walk any prolonged distances, and my doctor, Dr. Schultz, has recommended a left-knee replacement.

8. However, my cardiologist has advised that since I have arterial fibrillation, for which I take drugs to thin my blood to avoid clotting and a possible resulting stroke, I am now in a difficult medical situation.

9. Dr. Schultz advises me that in order to perform the operation, I will be unable to take the blood-thinning drug for at least one week.

10. During that week I will be under a severe risk of a stroke because of possible blood clots in the upper chamber of my heart.

11. Accordingly, I have decided to forgo the knee surgery and wait until my cardiac condition improves to the point where I do not run the risk of a stroke during surgery.

12. Therefore, I am now ready to proceed to trial in this matter.

13. I have a good cause of action inasmuch as I was stopped in a line of traffic when I was struck in the rear by a truck in this matter.

14. The only issue to be decided in this matter is the nature and extent of my injuries arising from the accident of 11-12-02.

In conclusion, I hereby state that I was never advised that this matter was dismissed or about to be dismissed.

I obtained an indefinite adjournment from the Judge due to my severe injuries from the accident on 11-12-02; and I am now ready to proceed to trial in this matter.

Inquiry was made of Judge Humphreys concerning plaintiffs' motion, whereupon the judge issued a memorandum dated February 2, 2005 stating, inter alia, that he did not recall the case; that he never grants adjournments except in specially-assigned cases; and that he does not grant indefinite adjournments, indicating he probably just took the next case and sent the matter back to the Civil Division Manager.

The motion to restore was submitted to the Law Division for a ruling on the papers filed. On February 10, 2005, Judge Brogan issued an order denying plaintiffs' motion, stating in pertinent part:

Pursuant to Judge Humphreys, no indefinite adjournment was given. It is incumbent on counsel to periodically monitor his cases so that a dismissed case doesn't remain dismissed for over 2 years before someone realizes that the case is dismissed.

On appeal, plaintiffs present the following arguments for our consideration:

POINT I

FAILURE OF THE COURT BELOW TO PERMIT THE RESTORATION OF THIS MATTER TO THE TRIAL CALENDAR WAS AN ABUSE OF DISCRETION.

POINT II

RESTORATION OF THIS CASE TO THE TRIAL CALENDAR WILL NOT BE PREJUDICIAL IN ANY MANNER TO THE DEFENDANTS HEREIN.

POINT III

LACK OF NOTICE TO PLAINTIFFS OF THE PURPORTED DISMISSAL SHOULD PERMIT THIS COURT TO REINSTATE THE MATTER TO THE TRIAL CALENDAR.

After analyzing the record in the light of written arguments advanced by the parties, we find no misapplication of discretion by the motion judge in denying plaintiffs' application to restore the case to the trial calendar.

Plaintiffs' motion to restore was not supported by any medical reports, notes or evidence documenting his status during interval of two years and three months between the dismissal of the complaint and the plaintiffs' filing of the motion to restore.

 
As noted by Judge Brogan, plaintiffs had the responsibility to monitor the case and not wait for more than two years to seek its restoration. Moreover, there is nothing in the record on appeal to suggest that plaintiffs kept the court apprised of Mr. Bonafield's medical condition or his readiness for trial. Mr. Bonafield's facsimile transmission to the court dated November 14, 2002, states that he would need approximately eight weeks to be medically ready for trial. Here, approximately 116 weeks passed before plaintiffs took any action. In these circumstances, we find no injustice or misapplication of discretion by the motion judge in denying plaintiffs' motion. See Comeford v. Flagship Furniture Clearance Ctr., 198 N.J. Super. 514, 517-18 (App. Div. 1983) (protracted delay after dismissal without explanation warrants refusal to restore complaint), certif. denied, 97 N.J. 581 (1984). See also Georgis v. Scarpa, 226 N.J. Super. 244, 249 (App. Div. 1988) ("Appellate courts have generally declined to interfere with matters of discretion unless it appears that the trial judge has mistakenly exercised his discretion and an injustice has been done").

Affirmed.

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A-3312-04T1

October 28, 2005