EZINMA ONUIGBO v. AMERICAN EXPORT LINES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6401-08T2

EZINMA ONUIGBO,

Plaintiff-Appellant,

v.

AMERICAN EXPORT LINES,

Defendant-Respondent.

________________________________________________________________

November 1, 2010

Submitted September 29, 2010 - Decided

Before Judges Kestin and Coburn.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Essex County,

Docket No. DC-038621-08.

Ezinma Onuigbo, appellant pro se.

Michael J. Tartini, attorney for respondent

(Frank M. Gennaro, on the brief).

PER CURIAM

Plaintiff sued defendant for damages allegedly arising from the shipment of one of three motor vehicles from New Jersey to Nigeria. Contrary to the court rules, plaintiff did not include a copy of the complaint in the appendix to her brief and defendant has supplied only a part of that complaint. From what we have, it appears that the subject vehicle did arrive in Nigeria, but was being held because defendant claimed that additional fees were due from plaintiff because of the size of that vehicle. The nature and amount of the damages allegedly suffered by plaintiff is unclear.

The case was tried with both sides present and judgment was entered on January 12, 2009, for defendant. On plaintiff's motion, a new trial was granted by order dated February 20, 2009. That order recites that the new trial was granted because the case "was tried by defendant by a non-attorney after advising the Court that they were not a Corporation. The motion exhibit shows it [defendant] is a fictitious name for a corporation. Corporations must be represented by an attorney."

The case was set for trial on April 28, 2009, and dismissed because plaintiff did not appear. Plaintiff concedes that she arrived in court at least an hour after the scheduled time. On learning that the complaint had been dismissed, and before leaving the court, she immediately filed a notice of motion to vacate the dismissal and reinstate her complaint. In a certification attached to her notice of motion, plaintiff stated that she was late, arriving at 9:35 a.m. instead of 8:30 a.m., because her "son was sick and throwing up." A representative of defendant signed a responding certification indicating that witnesses for defendant had appeared in court on time. Defendant asked that the case remain dismissed or, alternatively, that plaintiff reimburse it for the costs of appearing should the case be reinstated.

On May 28, 2009, the court entered an order denying plaintiff's motion. The order recited the following bases for denying the relief sought by plaintiff.

This case has already been listed for trial 3 times. Plaintiff was to be in court by 8:30 am, and had ample time to make alternate arrangements. It is not fair to def. who was here on time to be subjected to another trial. In addition, motion was not made in a timely fashion.

On June 12, 1009, plaintiff filed a timely motion for reconsideration. In her supporting certification, plaintiff asserted that defendant had appeared on the trial date without having required counsel and therefore would not have been able to go forward on the case. She also indicated, among other things, that the reason she was an hour late for the trial was that her "child felt sick on the way to a baby sitter. He was throwing up and vomited in the car." She included photographs showing the resulting condition of her car. Defendant did not file any opposition. By order of July 17, 2009, the trial court denied plaintiff's motion for reconsideration. The handwritten statement explaining the reasons for the order appears to read as follows:

Plaintiff has failed to meet the standards of R. 4:49-2 in that no new information/caselaw has been supplied by plaintiff to this Court. Plaintiff has failed to cite controlling law overlooked by the Court. The Court did err in one of its reasons on May 28, 2009- i.e., plaintiff's motion to vacate dismissal was filed in a timely manner. However, the other 3 reasons on the Court's May 28, 2009 [order] remain valid. Plaintiff has not proven a medical emergency for her child. For the reasons set forth by the Court on May 28, 2009 (except timeliness) and the reasons set forth in defendant's opposition, Pl's motion is denied.

Plaintiff promptly filed her notice of appeal, asserting that she was appealing from the "Order entered on July 17, 2009." She also filed the required Civil Case Information Statement, again indicating that she was only appealing from the order of July 17, 2009. Of course, as noted above, that order denied plaintiff's motion for reconsideration.

Defendant correctly contends that our review must be limited to consideration of the order identified in plaintiff's notice of appeal. Compagna v. American Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div. 2001); Sikes v. Township of Rockaway, 269 N.J. Super. 463, 465-466 (App. Div.), aff'd o.b. 138 N.J. 41 (1994). Indeed, in W.H. Industries v. Fundicao, 397 N.J. Super. 455, 458 (App. Div. 2008), we specifically ruled that when a plaintiff's notice of appeal only designates an order denying reconsideration, "plaintiff is not entitled to review of the earlier order."

A motion for reconsideration is governed by Rule 4:49-2. Reconsideration is appropriate when the prior decision is clearly incorrect or irrational or where it is apparent that the court failed to appreciate the significance of relevant evidence. Pressler, Current N.J. Court Rules, comment 2 on R. 4:42-2 (2011). It may also be appropriate when a party has additional information that was unavailable at the time of the original hearing. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div 1996). Our standard of review when reconsideration has been denied is abuse of discretion. Id. at 389.

None of the justifications for reconsideration are present in this case. When plaintiff failed to appear for trial, the judge was obviously entitled to order the complaint dismissed. The certification in support of plaintiff's motion to reinstate her case implied a basis for reinstatement by referring to plaintiff's son being sick, but contained no details showing why that sickness had caused plaintiff's delay. In support of her motion for reconsideration, plaintiff expanded slightly in her presentation of the facts, but the factual statement was still quite vague and the information was not newly discovered. Nor, of course, did the plaintiff argue or even suggest that the judge had overlooked or misapplied precedent or failed to understand the evidence presented. Consequently, there is no basis for holding that the judge abused his discretion in denying plaintiff's motion for reconsideration.

Affirmed.