EDWARD P. BRAKNA v. LATONIA J. HALL et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4421-05T54421-05T5

EDWARD P. BRAKNA,

Plaintiff-Appellant,

v.

LATONIA J. HALL and

WAVENY G. HALL,

Defendants-Respondents.

________________________________________________________________

 

Submitted January 10, 2007 - Decided March 22, 2007

Before Judges Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1640-04.

Andrew F. Garruto, attorney for appellant.

Schachtele & Mattia, attorneys for respondents (Michael J. Kelly, on the brief).

PER CURIAM

In this verbal threshold case, plaintiff Edward P. Brakna appeals from an order entered on March 3, 2006 granting summary judgment in favor of defendants, Latonia J. Hall and Waveny G. Hall, and an order entered on April 12, 2006 denying plaintiff's motion for reconsideration. The parties were involved in an automobile accident on May 18, 2002, in which defendant rear-ended plaintiff's vehicle. Plaintiff sustained a number of spinal injuries, the most serious of which is a herniation at L5-S1 and radiculopathy emanating from C8 and S1. Notwithstanding evidence that plaintiff's injuries are permanent, this matter was disposed of on procedural grounds. We reverse and remand.

Defendants moved for summary judgment with a return date of February 17, 2006. Plaintiff's counsel requested an adjournment of the return date until March 3, 2006 with defendants' consent. On March 3, 2006, however, plaintiff had not submitted any opposition and defendants' motion was granted.

Plaintiff then moved for reconsideration. Plaintiff's counsel submitted a certification indicating that he had "missed the deadline and also return date" because his secretary and paralegal had recently left and his office had been under construction since December. He asserted that "[t]he construction project takes additional time and attention away from the office, which I hope further mitigates my failure to timely oppose defendants' motion on the merits." The motion for reconsideration was decided, without argument, on April 10, 2006. In rendering his decision, the trial judge found that the motion did not meet the standard for a motion for reconsideration pursuant to Rule 4:49-2, but was "actually more like a Rule 4:50-1 motion based on the contention of excusable neglect." The judge found "no excusable neglect ha[d] been demonstrated here since the circumstances[,] namely the termination of the employment on March 2 by his secretary and paralegal long after the date for filing opposition to this motion and renovations to the office are circumstances that were within the control of the plaintiff."

In this appeal, plaintiff argues that (1) his injuries are permanent in nature and satisfy the verbal threshold requirements; and (2) plaintiff's inaction was the result of excusable neglect or exceptional circumstances.

We note initially that counsel's office problems were clearly not "within the control of the plaintiff" as stated by the trial judge. Rule 4:50-1(a) provides for relief from a judgment on the ground of excusable neglect. Excusable neglect has been defined as excusable carelessness "attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Mancini v. EDS, 132 N.J. 330, 335 (1993). "The circumstances constituting excusable neglect remain, however, fact-sensitive." Pressler, Current N.J. Court Rules, ("Pressler") comment 5.l.2 on R. 4:50-1 (2007).

Rule 4:50-1(f) provides for relief from a judgment when a party "show[s] that the circumstances are exceptional and that enforcement of the order or judgment would be unjust, oppressive or inequitable." Pressler at comment 5.6.1.

In Parker v. Marcus, 281 N.J. Super. 589 (App. Div. 1995), certif. denied, 143 N.J. 324 (1996), the plaintiff appealed from an order denying his motion to reconsider dismissal of his personal injury action. Id. at 591. Although the motion judge "expressed some concern about plaintiff's injury and the fact that he will be left without a remedy if the matter is not reinstated," the judge nevertheless denied the motion for reconsideration. Id. at 592. We reversed, noting that the plaintiff's motion was actually made pursuant to Rule 4:50-1(f), which is designed to balance the interests in finality of judgment with "'the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Id. at 592-93 (quoting Baumann v. Marinaro, 95 N.J. 380, 392 (1984)). We held that where the dismissal resulted from an attorney's neglect or mistake,

whether the motion for relief by the client is based on R. (Rule) 4:50-1(f) or R. [Rule] 1:1-2 (general rule of construction and relaxation of rules "to secure a just determination") "'justice is the polestar and our procedures must ever be moulded and applied with that end in mind.'" Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 195 . . . ([App. Div.] 1985) (quoting N.J. Highway Auth. v. Renner, 18 N.J. 485, 495 . . . (1955)).

[Id. at 593.]

We emphasized that "'in the absence of demonstrable prejudice to the other party it is neither necessary nor proper to visit the sins of the attorney upon his blameless client.'" Id. at 594 (quoting Jansson, supra, 198 N.J. Super. at 196).

Here, plaintiff, himself, was blameless for failing to oppose the summary judgment motion. Moreover, defendant has not demonstrated that any prejudice will result from reinstatement of the complaint. While counsel's office issues may not rise to the level of excusable neglect, the interests of justice demand that this matter be reversed and remanded for consideration of the motion on its merits.

Reversed and remanded.

 

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A-4421-05T5

March 22, 2007