DOROTHY CARMAN v. ESTATE OF GEORGE AND HELEN DUNKEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3789-10T2

DOROTHY CARMAN,

Plaintiff-Appellant,

v.

ESTATE OF GEORGE AND HELEN

DUNKEL, BOROUGH OF TENAFLY and

BUY-GONE TRADING,

Defendants-Respondents.

________________________________

July 9, 2013

Argued January 11, 2012 - Decided

Before Judges Fuentes, Graves, and Harris.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No.
L-1748-09.

Kelly A. Conlon argued the cause for appellant (Law Offices of Rosemarie Arnold, attorneys; Ms. Conlon, on the brief).

Robert F. Colquhoun, II, argued the cause for respondent Estate of George and Helen Dunkel (Colquhoun & Colquhoun, P.A., attorneys; Mr. Colquhoun, on the brief).

Robert Zimmerer argued the cause for respondent Borough of Tenafly (Zimmerer, Murray, Conyngham & Kunzier, attorneys; Mr. Zimmerer, of counsel and on the brief).

Anthony J. Accardi argued the cause for respondent Buy-Gone Trading (Accardi & Mirda, P.C., attorneys; Mr. Accardi, of counsel and on the brief).

PER CURIAM

In this personal injury action, plaintiff Dorothy Carman alleges that she tripped and fell while walking to attend a private estate sale conducted by Buy-Gone Trading, as the agents for the Estate of George and Helen Dunkel. Plaintiff sued Buy-Gone Trading, the Estate of Dunkel, and the Borough of Tenafly, claiming that the area where she fell was owned or controlled by one or more of these parties.

On May 19, 2010, after more than one year of discovery time had elapsed, the parties entered into a formal stipulation pursuant to Rule 4:37-1(a), dismissing all claims against the Borough of Tenafly. On September 29, 2010, the estate received a report from an engineering firm retained to ascertain the exact location where plaintiff fell. The engineer concluded that plaintiff fell on the right-of-way of the street, placing the site of the accident on property owned and controlled by the Borough of Tenafly. The engineer based his conclusion on plaintiff's deposition testimony describing the area where the accident occurred, including a photograph depicting the area in which plaintiff placed several markings identifying the location where she fell.

Based on this information, the trial court granted Buy-Gone Trading's and the Estate of Dunkel's summary judgment motions and dismissed plaintiff's complaint against these parties. The trial court also denied plaintiff's motions to reinstate her complaint against the Borough and to extend the time for discovery. Plaintiff now appeals from these rulings. We affirm.

Because the trial court dismissed plaintiff's case as a matter of law, we will consider all of the relevant facts in the light most favorable to plaintiff, including any inferences that may rationally be drawn from such facts. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).

I

At approximately 3:30 p.m., on Friday, June 8, 2007, plaintiff and her husband drove to a residence on Hudson Avenue in Tenafly to attend an estate sale plaintiff learned about from an announcement in the Bergen Record. The event was scheduled to start at approximately ten in the morning and end at around four o'clock in the afternoon. Plaintiff had never been on Hudson Avenue before that day. Plaintiff's husband parked the car in front of the house that was hosting the estate sale. Plaintiff described the weather conditions that day as a "beautiful" day.

As she walked from the car, she looked down and noticed the following: "[G]arden debris, debris, things from the trees that fall down from the trees. . . . There's a lot of [debris], and if there's tiny roots as big as a shoestring, and these cover it up and you don't see it, you don't see because it's obscured and don't expect it." As she walked from the car, she felt her "foot come in contact with something." She felt as if she was being "held and couldn't go forward, and it happened so fast that [she] fell on [her] knee and could not regain [her] composure." When asked directly at her deposition if she felt as if she hit a tree root, plaintiff answered: "I, I just felt I was being held, and couldn't regain my composure."

Plaintiff was asked during her deposition to review a number of photographs depicting the area where she fell. Copies of those photographs were included as part of the appellate record. Hudson Avenue is a curb-less street. The one-family home sponsoring the estate sale appears well-kept. It fronts a non-paved front yard area abutting the paved street. Plaintiff described the areas as a "gully" covered with "garden debris." Plaintiff placed a number of circles on one of the photographs to identify the precise area where she fell. Because the sale was scheduled to end approximately thirty minutes after her arrival, plaintiff admitted that she was in "a hurry" to get inside.1

The original discovery end date (DED) was automatically set to January 25, 2010, based on the time the first responsive pleading was filed with the trial court. Pursuant to Rule 4:24-1(c), the parties thereafter asked for and received a sixty-day extension, resetting the DED to March 26, 2010. Although the appellate briefs refer to another extension of the DED to August 27, 2010, the record before us does not support this contention. Operating under this assumption, however, both the Estate of Dunkel and plaintiff filed motions returnable on August 27, 2010, for an extension of the DED to October 26, 2010. The trial court gave the following explanation for denying their motions:

The New Jersey Court Rules require a showing of "exceptional circumstances" to extend the discovery end date following the scheduling of an [a]rbitration and/or [t]rial date. An "exceptional circumstance" is an "unanticipated" event. Here, the [c]ourt finds that there are no exceptional circumstances to warrant an extension of the discovery period.

Specifically, this case is nearly two (2) years old. Additionally, this Court has already extended the discovery end date three (3) times. This Court finds that the parties' arguments for an extension of the discovery end date is without merit and does not constitute "exceptional circumstances" under New Jersey law. The parties have failed to offer a rational explanation as to why discovery was not completed when the parties were previously afforded three extensions.

For the aforementioned reasons the [p]laintiff's and [d]efendant's motions are hereby DENIED.

Nothing in this order shall be construed to prevent the parties from freely continuing to pursue discovery consensually, so long as the applicable arbitration and/or trial dates are not affected.

[(Internal citations omitted).]

On September 28, 2010, the Estate of Dunkel retained engineer John A. D'Onofrio, P.E., to inspect the area where the accident occurred. After reviewing plaintiff's deposition testimony and the photograph she marked identifying the location of the fall, D'Onoforio concluded, within a reasonable degree of engineering probability, that plaintiff fell 11.4 feet into the "public right of way" owned and controlled by the Borough of Tenafly.

Plaintiff retained engineer Michael G. Natoli, P.E., who submitted his own report dated October 8, 2010. In addition to plaintiff's deposition testimony, Natoli reviewed plaintiff's answers to interrogatories and attachments, the deposition testimony of Buy-Gone Trading representative Suzanne Griswold, and survey maps for the premises dated 1948 and 2007. After conducting his own site inspection and meeting with plaintiff at the scene of the accident, Natoli concluded that plaintiff fell on the exterior walking surface fronting the Estate. He also opined that plaintiff's fall was caused by a tree root that extended from a tree located on the Estate's front yard, which, in his opinion, violated a relevant Borough ordinance.

In this light, plaintiff moved to have the Borough of Tenafly reinstated as a party defendant. The trial court denied plaintiff's motion, giving the following explanation in support of its ruling:

A volunt[ary] dismissal pursuant to [Rule] 4:37-1 "adjudicates nothing, and does not itself constitute a bar to reinstitution of the action, subject, however, to the constraints of the statute of limitations." See Comment 1.2. (emphasis added). This is a personal injury action, and therefore, pursuant to N.J.S.A. 2A:14-2, the applicable statute of limitations is two years. The cause of action accrued on June 8, 2007. Accordingly, the statute of limitations ran on June 8, 2009. [Rule] 4:37-1 does not provide that the statute of limitations is tolled due to a voluntary dismissal. Further, the [s]tipulation of [d]ismissal entered by the parties did not provide [p]laintiff with a time period to recommence the suit. Accordingly, [p]laintiff's claim against Tenafly is time-barred. For the aforementioned reasons, [p]laintiff's [m]otion to [v]acate [d]ismissal and [r]estore to the [a]ctive [c]alendar as to [d]efendant Borough of Tenafly is hereby DENIED.

Following this ruling, defendant Buy-Gone Trading moved for summary judgment, asserting that the fall occurred in the "public right of way," rendering the Borough solely liable for plaintiff's injuries. The Estate of Dunkel cross-moved for summary judgment asserting the same argument. After considering the arguments of counsel, the trial court granted defendants' motions based on the following findings and analysis:

The undisputed facts, based on the certification of the [p]laintiff herself and even the engineer's report that was obtained by the [p]laintiff was that the injury occurred on the exterior walking surfaces fronting the residential dwelling. . . .

Additionally reading from the [p]laintiff's own certification specifically, she indicated in paragraph 10 or stated in paragraph 10:

"While walking towards the driveway of the home, I was caused to fall to the ground in an area at the edge of the property that was comprised of debris, roots and rocks."

There is no proof at all that she fell on the property or on the grounds of the property based on what is here. As a homeowner, and this being a private residential structure, the -- there is no duty to maintain that which is not your property. This wasn't even a sidewalk fall which a commercial landowner may have liability for.

As such, the [m]otion for [s]ummary [j]udgment is granted and that's the decision of the Court for the reasons stated on the record.

The trial court thereafter denied plaintiff's motion for reconsideration, noting that plaintiff's motion merely reiterated the arguments previously considered and rejected by the trial court.

II

Plaintiff first argues that the trial court relied on the wrong standard of review in denying her motion to extend the DED. We agree. It is clear that the trial court erroneously used the "exceptional circumstances" standard to deny the motion to extend the DED. Here, because the arbitration date was set four days after the trial court's ruling denying the motion to extend the DED, the trial court should have used the "good cause" standard of review. That being said, however, the trial court's error in this context is harmless. Moreover, it is well settled that we can affirm the judgment of the trial court even if we disagree with the analysis underlying it. Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968).

Ordinarily, we review the trial court's decisions concerning matters of discovery under a mistaken exercise of discretion standard. Bender v. Adelson, 187 N.J. 411, 428 (2006). More specifically to the issue at hand, as it relates to extension of time for discovery, this court applies a deferential standard of review. See Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 396-97 (2005).

Rule 4:24-1(c) provides, in pertinent part, that a trial court should not extend the time for discovery after an arbitration or trial date has been set absent a showing of "exceptional circumstances." Conversely, if no arbitration or trial date is scheduled, the trial court may extend discovery for "good cause shown." Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 91-92 (App. Div. 2007). Under Rule 4:24-1(c), "good cause" is "not fixed and definite." Id. at 87 (citing Tholander v. Tholander, 34 N.J. Super. 150, 152 (Ch. Div. 1955)). In Leitner, we enumerated the following factors to illustrate how a trial court may determine whether the moving party has demonstrated good cause to extend the DED:

(1) the movant's reasons for the requested extension of discovery;

(2) the movant's diligence in pursuing discovery;

(3) the type and nature of the case, including any unique factual issues which may give rise to discovery problems;

(4) any prejudice which would inure to the individual movant if an extension is denied;

(5) whether granting the application would be consistent with the goals and aims of "Best Practices";

(6) the age of the case and whether an arbitration date or trial date has been established;

(7) the type and extent of discovery that remains to be completed;

(8) any prejudice which may inure to the non-moving party if an extension is granted; and

(9) what motions have been heard and decided by the court to date.

[Id. at 87-88.]

Here, plaintiff is uniquely more capable of identifying with certainty the area where she fell than any other party. She and her husband were the only witnesses to the event. By her own admission, she immediately left the area after the fall to seek medical attention. Her attorney named the Borough of Tenafly as a party defendant in the original complaint. Counsel for plaintiff also made a knowing and voluntary decision to dismiss all claims against the municipality on May 19, 2010, months before the DED and after more than one year of discovery time had elapsed. The fact that this decision may have been made without first ascertaining the Borough's potential liability vis- -vis the location of the accident does not constitute good cause.

The most rudimentary factor of a personal injury case based on landowner liability is to ascertain where the accident occurred. Only after knowing where the accident occurred is a plaintiff in a position to determine the relevant duty of care owed by the landowner. This is especially critical in cases where a public entity may be involved as a defendant. See D.D. v. Univ. of Med. & Dent. of New Jersey, 213 N.J. 130, 146 (2013). Based on all of these factors, we are satisfied that plaintiff did not have good cause to extend the DED.

We reject plaintiff's arguments with respect to the denial of her motion to reinstate the Borough of Tenafly as a party defendant for the reasons expressed by the trial court. We add only the following brief comments. Plaintiff had two years to commence her action against the Borough. N.J.S.A. 2A:14-2. Here, her cause of action accrued on June 8, 2007. Thus, the statute of limitations expired on June 8, 2009. Plaintiff did not name the Borough as a defendant until July 30, 2009. The Borough filed a responsive pleading raising the statute of limitations as an affirmative defense.2 Thus, it is of no moment here that Rule 4:37-1 does not provide that the statute of limitations is tolled due to a voluntary dismissal. Finally, the stipulation of dismissal executed by the parties did not provide plaintiff with a time period to re-file her suit.

Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We thus affirm substantially for the reasons expressed by the trial court.

A

1 Although not relevant to our legal analysis, we acknowledge that plaintiff sustained several serious injuries, including a fractured bone, ligament strain, and lacerations to her face. She incurred approximately $7617.15 in medical expenses.

2 Because the statute of limitations is an affirmative defense, a defendant must raise the defense, or it is waived. Fees v. Trow, 105 N.J. 330, 335 (1987).