ELIZABETH CONNORS v. SCHINDLER ELEVATOR CORP

NOT FOR PUBLICATION WITHOUT THE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

ELIZABETH CONNORS,

Plaintiff-Appellant,

v.

SCHINDLER ELEVATOR CORP.,

Defendant-Respondent,

and

PORT AUTHORITY OF NEW YORK

AND NEW JERSEY,

Defendant.

__________________________________________

January 17, 2017

Submitted December 6, 2016 Decided

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1056-13.

Law Offices of Anthony Carbone, P.C., attorneys for appellant (Anthony Carbone, on the brief).

Sonageri & Fallon, L.L.C., attorneys for respondent (James L. Sonageri, on the brief).

PER CURIAM

Plaintiff Elizabeth Connors appeals from orders entered by the Law Division on November 7, 2014, which granted a motion by defendant Schindler Elevator Corp. (Schindler) for summary judgment, and denied plaintiff's cross-motion for reconsideration of an order previously entered by the court barring plaintiff's expert report. We affirm.

We briefly summarize the relevant facts and procedural history. On December 14, 2011, plaintiff was riding on an escalator at the Port Authority Trans Hudson (PATH) rail station at Exchange Place in Jersey City. Plaintiff claimed she fell due to a dangerous and hazardous condition of the escalator. PATH is owned and operated by the Port Authority of New York and New Jersey (PANYNJ). Schindler is allegedly responsible for inspecting and maintaining the escalator.

On February 28, 2013, plaintiff filed her complaint against Schindler and the PANYNJ. Schindler filed its answer on April 8, 2013, and served upon plaintiff a request for answers to interrogatories. The PANYNJ filed a motion for dismissal of the complaint against it, because plaintiff did not comply with the notice of claim requirement in N.J.S.A. 32:1-163. The court entered an order dated May 24, 2013, granting the motion. Therefore, the PANYNJ is no longer a party in this case.

On June 7, 2013, Schindler wrote to plaintiff's attorney and asked plaintiff to provide an answer to its discovery request within two weeks. Plaintiff did not respond and on June 25, 2013, Schindler filed a motion to dismiss the complaint without prejudice pursuant to Rule 4:23-5 for failure to provide discovery. On July 12, 2013, the court granted the motion.

Although plaintiff's complaint had been dismissed without prejudice, on July 30, 2013, plaintiff sent Schindler a demand for answers to interrogatories and the production of insurance information. On that date, plaintiff filed a motion to reinstate her complaint, which Schindler did not oppose.

The court granted plaintiff's motion on August 23, 2013. The court informed the parties that the discovery end date was April 26, 2014, although that date was later extended to July 2, 2014. On May 31, 2014, plaintiff sent Schindler's attorneys a letter demanding that Schindler respond to plaintiff's July 30, 2013 discovery request. In that same letter, plaintiff also demanded that Schindler produce certain maintenance records for the escalator at the Exchange Place PATH station.

On June 2, 2014, plaintiff filed two motions in the trial court: to compel Schindler to provide answers to her interrogatories, and to extend the time for discovery by sixty days to allow for the production of a liability expert report. The motion judge entered an order dated June 20, 2014, compelling Schindler to provide discovery. It appears, however, that Schindler had already provided the answers to plaintiff's interrogatories. The judge also entered an order denying plaintiff's motion to extend the time for discovery because plaintiff had failed to identify in her motion the discovery to be completed and the proposed dates for completion, as required by Rule 4:24-1(c).

Thereafter, on July 7, 2014, the court issued a notice of mandatory, non-binding arbitration in the matter, and scheduled an arbitration proceeding for August 21, 2014. On July 16, 2014, plaintiff filed another motion to extend the time for discovery, this time identifying the remaining discovery and the proposed dates for completion.

On August 8, 2014, the Presiding Judge of the Civil Division denied the motion finding that plaintiff had not shown exceptional circumstances for the requested discovery extension. In her order, the judge noted that the original discovery end date was February 2, 2014, and the time for discovery had been extended to July 2, 2014.

On the order, the judge wrote that "[a]fter 450 days of discovery, [the] parties have not adequately explained [why] [] paper discovery remain[s] incomplete, no depositions have been taken[,] and no expert discovery [was] conducted." The judge also wrote that the motion was "untimely under Rule 4:24-2," because it was not returnable before the time for discovery had expired, and plaintiff had not satisfied the four-pronged test of Vitti v. Brown, 359 N.J. Super. 40 (Law Div. 2003), to extend the time for discovery.

At the August 21, 2014 arbitration hearing, plaintiff's counsel provided Schindler's attorney with a copy of her liability expert's report. The expert report was dated June 9, 2014, although plaintiff's counsel claimed this was a typographical error and that the correct date was July 14, 2014.

On September 2, 2014, Schindler moved to bar plaintiff's expert report because it had not been served before the July 2, 2014 discovery end date. Plaintiff opposed Schindler's motion, arguing that the expert report had been provided prior to the arbitration, and that the rules allowed the court to provide plaintiff with relief from the discovery deadline.

Oral argument on Schindler's motion was scheduled for September 19, 2014, but plaintiff's counsel failed to appear. The record reflects that the court called plaintiff's counsel's office and was told that counsel was unavailable, attending to a deposition for a different matter and that counsel wanted to rest on the papers.

On September 19, 2014, the judge granted Schindler's motion. The judge noted that the Civil Division Presiding Judge had previously determined that the discovery deadline would not be extended because plaintiff had not shown exceptional circumstances for the discovery extension, as required by Rule 4:24-1(c). The judge decided that Schindler's motion should be granted because plaintiff failed to serve her expert report before the discovery end date.

On October 10, 2014, Schindler filed a motion for summary judgment, arguing that plaintiff's claims failed as a matter of law because she could not establish liability without expert testimony. Plaintiff opposed the motion and filed a cross-motion seeking reconsideration of the court's order of September 19, 2014, barring plaintiff's expert report. On November 7, 2014, the court entered orders granting Schindler's motion and denying plaintiff's cross-motion. Plaintiff's appeal followed.

On appeal, plaintiff argues that the trial court erred by barring her liability expert report. Plaintiff contends that her first motion to extend the time for discovery should have been granted because she showed good cause for the discovery extension. She argues that she should not have been required to establish exceptional circumstances for the second motion to extend the time for discovery.

Plaintiff further argues that her motions to extend discovery should have been granted because the motions were returnable before the trial date was fixed. She notes that the court issued a trial notice on September 18, 2014, which scheduled the trial for December 10, 2014. Plaintiff contends that, under the worst of circumstances, Schindler would have had at least three months to serve its own expert report.

A trial court's order denying a motion to extend discovery will not be disturbed unless shown to be a mistaken exercise of discretion. Bender v. Adelson, 187 N.J. 411, 428 (2006). An appellate court "generally defer[s] to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005).

A trial court's decision to extend discovery is governed by Rule 4:24-1(c), which requires that motions for extensions of time for discovery must be "made returnable prior to the conclusion of the applicable discovery period." The rule requires the movant to provide the court with copies of all prior orders granting or denying discovery extensions. Ibid.

The rule further provides that "[a]ny proposed form of extension order shall describe the discovery to be completed, set forth the proposed dates for completion, and state whether the adverse parties consent." Ibid. The movant must show good cause for a discovery extension; however, exceptional circumstances must be shown after an arbitration or trial date is fixed. Ibid.

Here, plaintiff's first motion for a discovery extension was made before the court scheduled the matter for arbitration or trial, and the motion was returnable before the July 2, 2014 discovery end date. Therefore, plaintiff had to establish good cause for the discovery extension. However, her motion was properly denied because in her proposed order, she did not describe the discovery that remained to be completed and the proposed dates for completion, as required by Rule 4:24-1(c).

Plaintiff's second motion for a discovery extension was filed

on July 16, 2014; however, the time for discovery had expired and the court had scheduled the matter for arbitration. Therefore, plaintiff had to show exceptional circumstances to extend the time for discovery. Szalontai v. Yazbo s Sports Caf , 183 N.J. 386, 396 (2005); Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 168 (App. Div. 2009).

The record supports the Civil Presiding Judge's determination that plaintiff failed to show exceptional circumstances for a further extension of time for discovery. Although Rule 4:24-1(c) does not define exceptional circumstances, "the term 'in common parlance, denotes something unusual or remarkable.'" Rivers, supra, 378 N.J. Super. at 78 (quoting Vitti, supra, 359 N.J. Super. at 50).

To establish exceptional circumstances to extend the time for discovery, the moving party must

(1) [explain] why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) [establish that] the additional discovery or disclosure sought is essential; (3) [provide] an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) [show that] the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

[Id. at 79 (citing Vitti, supra, 359 N.J. Super. at 51).]

An attorney's failure to diligently prosecute a case does not constitute exceptional circumstances. Id. at 79-82.

Here, the Civil Presiding Judge noted that discovery had already been extended from February 2, 2014 to July 2, 2014. Despite having had 450 days to conduct discovery, and engaging the services of a liability expert in October 2013, plaintiff's counsel failed to diligently pursue discovery from Schindler and ensure that her expert's report was submitted before the discovery end date. The judge noted that plaintiff failed to explain "[why] [] paper discovery remain[s] incomplete, no depositions have been taken[,] and no expert discovery [was] conducted." The record fully supports the judge's determination that plaintiff failed to establish that she diligently pursued discovery in the allotted time.

On appeal, plaintiff does not dispute the court's determination that, to prevail on her claims against Schindler, she had to present expert testimony. Because the trial court's denial of plaintiff's motions to extend the time for discovery were not a mistaken exercise of discretion, and because plaintiff failed to serve the expert report before the discovery end date, the court did not err by granting summary judgment to Schindler and denying plaintiff's motion for reconsideration of the prior order barring plaintiff's expert report.

Affirmed.