BENJAMIN LUGO v. TOUFIK ZOUABI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0649-10T3

BENJAMIN LUGO, MARIA T. LUGO,

Plaintiffs,

and

ROBERT LUGO,

Plaintiff-Appellant,

v.

TOUFIK ZOUABI and ISSAM ALZOUABI,

Defendants-Respondents.

___________________________________

Argued March 29, 2011 Decided June 9, 2011

Before Judges Wefing and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No. L-4311-07.

Natalie A. Zammitti Shaw argued the cause for

appellant (Law Offices of Rosemary Arnold,

attorneys; Ms. Shaw, of counsel and on the brief).

David L. Burnett argued the cause for respondents

(Daly, Lamastra & Cunningham, attorneys; Mr.

Burnett, on the brief).

PER CURIAM

Plaintiff Robert Lugo appeals from a trial court order denying his motion for reconsideration of an earlier order that denied his motion to restore this matter to the active trial calendar. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Plaintiff Robert Lugo was a passenger in an automobile driven by his father, plaintiff Benjamin Lugo. His mother, plaintiff Maria Lugo, was also a passenger. The Lugo car was involved in a motor vehicle accident with a car driven by defendant Toufik Zouabi and owned by defendant Issam Alzouabi, and the three plaintiffs filed suit for damages. Defendants served a notice to take the deposition of plaintiff Robert Lugo, and he failed to appear. They also scheduled an independent medical examination for him, and he failed to appear for that as well. Defendants then filed a motion to dismiss his complaint without prejudice, and that motion was granted on April 17, 2009.

In July 2009, defendants filed a motion to dismiss the complaint of Robert Lugo with prejudice for his failure to comply with discovery. He filed a cross-motion, supported by a certification from his attorney that she learned after the dismissal without prejudice that Robert Lugo had been incarcerated in the Passaic County Jail at the time and had subsequently been transferred to Damon House for long-term in-patient drug treatment. She certified that she had contacted Damon House to request that her client's deposition be conducted there and that it had refused, saying the deposition would have to wait until Lugo had completed his treatment. She thus requested that the court order Damon House to permit the deposition to proceed and to release Robert Lugo for the sole purpose of attending an independent medical examination. The attorneys appeared before the motion judge, and an order was entered with the consent of both parties on August 14, 2009, directing that Robert Lugo's deposition and independent medical examination take place at Damon House on or before September 22, 2009.

Ten days later, on August 24, 2009, plaintiffs' attorney wrote to the trial court in response to a notification that the matter had been listed for trial on October 5, 2009. She noted that Robert Lugo was in residential treatment at Damon House, that there were confirmed dates for his deposition and independent medical examination, and that he would not be released from treatment until February 2010. Based upon those facts, she requested that the trial be rescheduled to a date after February 1, 2010; and she noted that defendants' attorney consented to this adjournment. According to the record before us, and the attorneys at argument, this was the first trial listing for this matter.

The trial court nonetheless denied the request, noting that the matter could proceed with the remaining plaintiffs. On the scheduled trial date, the matter was settled with respect to Benjamin and Maria Lugo.

Following Robert Lugo's discharge from Damon House, his attorney filed a motion to restore his matter to the trial calendar. The motion was supported by copies of the various orders that had been entered and supporting certifications setting forth the reasons for the delays that had been experienced. Defendants did not oppose the motion to restore.

Again, the trial court nonetheless denied the motion, noting on the order that plaintiff could have been writted to appear at trial. Plaintiff then filed a motion for reconsideration, restating the history of what had occurred in this matter. The trial court denied the motion for reconsideration, and this appeal followed.

We recognize that requests for adjournments of trial are addressed to the discretion of the trial court. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003). We also recognize the need for the trial court to maintain a credible trial calendar. The trial court's discretion, however, must be exercised within parameters. It should, for example, in an instance such as this, recognize Rule 4:36-3(b), which states in pertinent part that "[a]n initial request for an adjournment for a reasonable period of time to accommodate a scheduling conflict . . . shall be granted if made timely in accordance with this rule."

Here, plaintiffs' attorney made a written request for an adjournment of the first trial date seven weeks in advance of that date. Further, she presented a scheduling conflict: one plaintiff was engaged in long-term residential drug treatment and was not available. If the facility would not permit him to be released temporarily for purposes of an independent medical examination because in its view to do so would interfere with his treatment, we are entirely uncertain as to how the trial court could conclude that a writ could have been issued compelling that plaintiff be transported to the courthouse for purposes of trial.

There is no indication in this record that plaintiff was being less than forthcoming with the trial court. See, in this regard, Kosmowski, supra, 175 N.J. at 573. Nor is there any indication that once the order of August 14, 2009, was entered, there were any other problems encountered in completing discovery. Nor is there any indication that plaintiff was attempting to maneuver to obtain some form of advantage over defendants. Indeed, defendants never opposed the motion to restore the matter and never opposed the motion for reconsideration.

We are generally reluctant to intervene in such discretionary matters of calendar control. We nevertheless conclude that in this instance, the trial court abused its discretion when it denied the motion to restore and the subsequent motion for reconsideration.

The order under review is reversed, and the matter is remanded to the trial court for further proceedings.