SHERRY HARRIS v. SALLY A. ABDULWAHAD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3011-06T23011-06T2

SHERRY HARRIS and ANNETTE IRVING,

Plaintiffs-Appellants,

v.

SALLY A. ABDULWAHAD, MOHAMAD A.

ELSANKARI,

Defendants-Respondents,

and

STATE FARM INSURANCE COMPANY,

Defendant.

_________________________________________________

 

Submitted September 2, 2008 - Decided

Before Judges Payne and Alvarez.

On appeal from Superior Court of New Jersey,

Law Division, Union County L-3169-04.

Fusco & Macaluso, attorneys for appellants

(David P. Kreizer, of counsel and on the

brief).

Rebenack, Aronow, and Mascolo, attorneys

for respondents (Craig M. Aronow, of counsel; Ryan D. Loxam, on the brief).

PER CURIAM

Plaintiffs, Sherry Harris and Annette Irving, appeal from the dismissal with prejudice of their personal injury lawsuit against defendants, Sally Abdulwahad and Mohammed Elsankari, after plaintiffs' treating chiropractor, Marc Centrelli, failed to appear as a witness at trial on December 13, 2006 and failed to respond to calls from the office of plaintiffs' attorneys. On appeal, plaintiffs speculate that Dr. Centrelli's failure to appear was related to his plea of guilty, on April 20, 2007, to charges of insurance fraud arising from his submission of claims, between April 30, 2003 and February 11, 2004, for services that he did not perform. Plaintiffs argue that, despite their counsel's consent to the dismissal and the lack of any request by him for alternative relief, the trial judge mistakenly failed to grant a mistrial or an extended continuance of trial in the matter.

The record on appeal in this case is very sparse, and as a result, we lack any statement of the date or circumstances of the motor vehicle accident giving rise to plaintiffs' suit, the nature of their claimed injuries, and the nature and duration of any treatments provided to plaintiffs by Dr. Centrelli. Treatment records and an expert report by Dr. Centrelli are likewise lacking.

The appellate record does, however, contain a transcript of the December 13 proceedings before the trial judge. From it, we gather that a jury trial had been underway for at least one day, and that the prior day's proceedings were concluded with the representation that Dr. Centrelli would be present at 10:30 a.m. on December 13. The jury was called for 11:00 a.m. At 12:15, Dr. Centrelli still had not appeared. Plaintiffs' counsel was given an opportunity to describe the efforts that had been undertaken to locate the doctor. Counsel noted phone contact as recently as the preceding day, at which time the doctor agreed to clear his schedule in order to testify on the morning of December 13. Although the doctor also agreed to provide counsel with a definite time for his appearance, at that point, all contact ceased. Calls to the doctor's office, cell phone and home phone were not returned. According to counsel, "[f]or some reason he [was] not picking up. So I could only say at this point he has purposely avoided contact."

Defense counsel thereupon moved for dismissal of plaintiffs' complaint as the result of their inability to establish damages. When invited to respond to defendants' motion, the following colloquy occurred:

THE COURT: Okay. All right. Do you have anything to say with respect to the application?

MR. GOLDBERGER: No your Honor. Obviously under the circumstances, we have no grounds into [sic] which we could oppose the application by the defendant.

The complaint was then dismissed with prejudice.

On appeal, plaintiffs argue that a dismissal with prejudice was too harsh a remedy to impose for a circumstance that was not their fault. While in some circumstances we would accept this argument, here, plaintiffs themselves suggest that testimony by Dr. Centrelli on their behalf would have potentially exposed the doctor to further criminal liability. Plaintiffs offer no evidence that would verify the fact that they received any treatment from the doctor or that treatments provided conformed to the doctor's office records or to claims submitted by the doctor to plaintiffs' insurer, Allstate Insurance Company. Further, plaintiffs do not provide any evidence to suggest that, within a reasonable period of time, they would have been able to secure testimony by another medical professional that would have provided competent evidence of their injuries and treatment and the causal relationship of the injures to the motor vehicle accident that forms the basis for plaintiffs' claims.

In these circumstances, we find ample grounds for entry of an involuntary dismissal of plaintiffs' claims pursuant to Rule 4:37-2(b) and (d) and no misuse of the judge's discretion in failing to suggest, sua sponte, a less draconian remedy.

Affirmed.

It appears from the transcript of proceedings and order of dismissal that the motion was made only on behalf of defendant Abdulwahad. The status of defendant Elsankari has not been clarified.

We do not suggest that the record supports fraud on the plaintiffs' part. We merely note evidential deficiencies in plaintiffs' arguments.

(continued)

(continued)

5

A-3011-06T2

September 15, 2008