ARLENE GIACINTO v. IJKG OPCO, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ARLENE GIACINTO,

Plaintiff-Appellant,

and

DONNA QUINN, JOANN GIACINTO,

VINCENT GIACINTO and PAUL GIACINTO,

Plaintiffs,

v.

IJKG OPCO, LLC, d/b/a BAYONNE

MEDICAL CENTER, d/b/a BAYONNE

HOSPITAL,

Defendant-Respondent.

____________________________

December 8, 2016

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3088-11.

Cresci Law Firm, LLC, attorneys for appellant (Peter J. Cresci, on the brief).

Kauffman, Borgeest & Ryan, LLP, attorneys for respondent (John B. Mullahy, of counsel; John J. Leo, III and Fonda J. Kosmala, on the brief).

PER CURIAM

Plaintiff Arlene Giacinto appeals from the entry of summary judgment, on reconsideration, in favor of IJKG OPCO, LLC, doing business as Bayonne Hospital, dismissing her medical malpractice complaint with prejudice. She claims the trial court abused its discretion in reconsidering the motion, which she had successfully defended on the procedural ground that it was brought too close to the trial date, after that trial date was rescheduled. Because we cannot find the trial court abused its discretion in adjourning the trial date and subsequently reconsidering the motion, which plaintiff never addressed on the merits, we affirm.

The law is well settled that we review a trial court's grant or denial of an adjournment request only for abuse of discretion. Kosmowski v. Atl. City Med. Ctr., 175 N.J.568, 573-75 (2003). Although the case was almost three years old at the time of the first scheduled trial date, the delays do not appear properly laid at defendant's door. Plaintiff had already missed different deadlines for serving her expert reports, and her complaint had been dismissed without prejudice pursuant to Rule4:23-5(a)(1) for failure to provide discovery.

At the case management conference following reinstatement of the case, the court gave plaintiff almost six weeks to serve her expert reports, extended discovery thirty-eight days beyond that date and set a trial date less than sixty days thereafter. When defense counsel expressed concern about getting a summary judgment motion heard thirty days before the trial date on that schedule, the judge advised he would hear the motion on a shorter schedule, so long as "both sides agree there will not be a basis for adjourning the trial date."

After plaintiff again failed to serve expert reports, defendant moved for summary judgment a week after the close of discovery. Although the motion was filed on a regular twenty-eight-day schedule, plaintiff opposed it on the ground that it was returnable only eighteen days before the trial date. She did not brief the merits. The trial judge denied the motion on the ground it was returnable too close to the trial date. SeeR. 4:46-1.

Days after the motion was denied, defendant sought an adjournment of the trial date from the presiding civil judge on account of designated trial counsel's long-scheduled vacation. Judge Costello conducted a conference with counsel on the record. Although chastising defense counsel for his tardiness in informing the court about his vacation, she found plaintiff had not demonstrated she would suffer any prejudice by the adjournment and rescheduled the trial.

Judge Costello made clear she was not adjourning the trial date to allow defendant to pursue its summary judgment motion. Instead, the judge stated she was adjourning the trial "because attorneys deserve vacations," she believed counsel's representation that his failure to timely advise the court of his vacation was "just an oversight," and the "lack of prejudice" to plaintiff. The judge advised the parties that she would not address the trial judge's denial of the summary judgment motion as it did not figure in her decision to adjourn the trial and left to defense counsel whether to pursue a motion for reconsideration.

After hearing argument on defendant's motion for reconsideration, Judge Turula granted reconsideration and entered summary judgment dismissing the complaint. The judge concluded adjournment of the trial date on independent grounds removed the procedural impediments to his consideration of the motion. Observing that plaintiff had never briefed the merits, the judge found plaintiff's failure to proffer expert testimony doomed her malpractice claims and that she had not established a prima facie case on her remaining causes of action.

Plaintiff has provided us no basis on which to criticize Judge Costello's decision to adjourn the trial date in this case. With the trial date adjourned, there was no reason for the court to deny reconsideration or summary judgment dismissing the complaint. SeeBrill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540-41 (1995) (just as important as not "shut[ing] a deserving litigant from his [or her] trial," is not "allow[ing] harassment of an equally deserving suitor for immediate relief by a long and worthless trial").

Affirmed.