NICHOLAS MANDORLO v. ENRIQUE T. ENDO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0173-10T3

NICHOLAS MANDORLO and

DEBORAH MANDORLO, his

wife,

Plaintiffs-Appellants,

v.

ENRIQUE T. ENDO,

Defendant-Respondent.

______________________________________________

Argued June 15, 2011 Decided July 5, 2011

Before Judges A. A. Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0483-02.

George J. Abdy argued the cause for appellants (Abdy & Kane, attorneys; Mr. Abdy, on the brief).

Gloria Rodriguez argued the cause for respondent (Law Office of Patricia A. Palma, attorneys; Ms. Rodriguez, on the brief).

PER CURIAM

Nicholas Mandorlo and his wife Deborah Mandorlo (collectively "plaintiffs") sued Enrique T. Endo, alleging negligence, which caused an automobile accident on February 14, 2000, resulting in an injury to Nicholas. The action was dismissed on December 8, 2003, because plaintiffs' counsel, George C. Nardella of the law firm, then known as Abdy, Kane & Nardella, P.C., failed to appear for trial. Several years later, plaintiffs moved to reinstate or restore the case. On May 10, 2010, Judge W. Hunt Dumont denied the motion. Plaintiffs did not file a timely appeal. Instead, they moved for reconsideration. Judge Dumont denied reconsideration on July 29, 2010. We affirm.

For argument's sake, we adopt the following procedural assertions advanced by plaintiffs. After the suit was filed, Endo filed an answer. He was represented by Gloria Rodriguez, Esq. of the law firm of Robert Averbach. In August 2003, a non-binding arbitration hearing was held, but the arbitration award was rejected. Plaintiffs requested a trial de novo.

According to Nardella's certification in support of the motion for reconsideration filed in 2010, one week before the trial date, on December 8, 2003, Nardella alleges that the attorneys discussed settlement by way of binding arbitration. This is disputed by Rodriguez. But, it is undisputed that a binding arbitration hearing was never held and the parties did not take steps to conduct one.

Three days before the trial date, Nardella alleges that he contacted the Civil Case Manager's office to inquire about the calendar call. He was advised that the matter was marked "settled." Nardella assumed that his adversary had settled the case because there would be an arbitration hearing. However, Rodriguez appeared at the December 8, 2003 trial call. The case was active. On December 9, 2003, it was dismissed and the record marked: "Plaintiff Failed to Appear, Dismissed by Court." Nardella alleges that the first time he learned that the complaint had been dismissed was six years later, on January 20, 2010. He complains that Rodriguez never advised him that the case was dismissed. He does not indicate what steps he or his office took to restore the case at that time, in light of his knowledge that a binding arbitration hearing did not occur.

Plaintiffs moved to restore the complaint. Judge Dumont denied the motion and signed an order on May 20, 2010, giving the following reasons:

Denied; this is a 2002 docketed case. There was non-binding arbitration by the Court on 8/7/03. Trial de novo followed pursuant to [Plaintiffs'] request. It was listed for trial on 12/8/03 and was dismissed for lack of appearance by [Plaintiff] and counsel. The order was signed by retired Judge Crump on 12/8/03. It was not restored in the period since. Nevertheless, the [Plaintiff] has continued to treat and to restore it now 6 1/2 years later would severely prejudice the [Defendant]. Defense counsel closed her file in July 2004 and the IME predates the Dec. 2003 dismissal.

Plaintiffs did not appeal this decision. Instead, they moved for reconsideration three weeks later. Judge Dumont denied reconsideration on July 29, 2010 and gave the following reasons:

Reconsideration denied, the prior order of 5/20/10 stands for the reasons recited therein. The movant cannot meet the standard for reconsideration from Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). The Court's prior decision was neither palpably incorrect nor irrational. The Court did not fail to consider the merits of movant's argument and its not going to inflict severe prejudice on the [Defendant] by reinstating this 2002 case in 2010.

On appeal, plaintiffs contend that the judge "erred in denying the reconsideration motion for reinstatement and to vacate the order of dismissal as the court should view the motion to vacate the dismissal with great liberality and every reasonable grounds for indulgence is tolerated to the end that a just result is reached; the denial of the motion to vacate was an abuse of discretion." We are not persuaded.

First, we note that a motion for reconsideration is limited by R. 1:7-4 and R. 4:49-2 to consideration of "controlling decisions which counsel believes the court has overlooked or as to which it has erred." Dissatisfaction with a decision is not a basis for reconsideration. A motion for reconsideration does not revive all challenges to an unappealed prior decision.

Plaintiffs also contend that: their "counsel was not given notice that this case was dismissed; therefore any time limit argument should not be grounds for dismissal of the complaint." We are not persuaded.

Nardella's own certification belies this argument. He was told that the matter was "settled." However, there was no follow-up to implement a settlement. Therefore, Nardella was given notice that the case was no longer on the active trial calendar.

Plaintiffs also argue that: (1) the ultimate sanction of dismissal should not have occurred in this case and justice should be served by permitting them to proceed with their legitimate claim; (2) "time should be an impediment but should begin to run when plaintiffs' counsel received actual notice of the dismissal"; and (3) defendant will suffer no prejudice if this case is restored to the trial list.

After a careful review of the procedural record, we conclude that these arguments are without sufficient merit as to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We affirm substantially for the reasons given by Judge Dumont in his July 29, 2010 oral decision, denying the motion for reconsideration. We also concur with his reasoning stated in the May 20, 2010 order denying the motion to restore. That order is not part of this appeal, but the judge's reasoning is applicable to the denial of the reconsideration motion.