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Crews v. Garmoney

Decided: April 26, 1976.

DOROTHY L. CREWS, PLAINTIFF-APPELLANT,
v.
JAMES GARMONEY, DEFENDANT-RESPONDENT



Allcorn, Kole and Ard. The opinion of the court was delivered by Ard, A.j.s.c., Temporarily Assigned.

Ard

Plaintiff appeals an order of May 9, 1975 denying her motion to restore her case to the active trial list. Specifically, she wishes to invoke R. 1:1-2 in order to relax the conditions of R. 4:23-5(a).

A review of the history of this lawsuit is important to understand our disposition of the matter.

Plaintiff's complaint was served on defendant March 5, 1974.

Defendant served plaintiff with an answer and interrogatories on April 24, 1974. R. 4:17-4(b) requires interrogatories to be answered within 60 days after service, which made these answers due on or about June 24, 1974.

Upon plaintiff's failure to answer the interrogatories within the time prescribed by R. 4:17-4(b), defendant filed a certification of failure to serve answers to interrogatories

and on August 26, 1974 an order was entered dismissing the complaint pursuant to R. 4:23-5(a). A copy of this order was served upon plaintiff on August 27, 1974.

Following the service of the dismissal order plaintiff failed to contact defendant until April 17, 1975, some eight months later, at which time purported answers to the interrogatories were received by defendant. These answers were unresponsive and were acknowledged to be such by plaintiff's attorney during appellate oral argument.

Plaintiff then filed a notice of motion to vacate the dismissal and restore the matter to the active trial calendar. The assignment judge found plaintiff to be dilatory in failing to contact her attorneys or otherwise pursue her cause of action. He also found the answers to be unresponsive and defendant to be prejudiced by his lack of early information concerning plaintiff's medical status. The motion was therefore denied and this appeal followed.

The sole contention of plaintiff in this appeal is that the assignment judge's refusal to restore her case to the active trial list constitutes an injustice. We disagree.

At the outset it should be noted that R. 4:23-5(a) provides in part that

On formal motion made by the delinquent party within 30 days after service upon him of the order, the court may vacate it, provided fully responsive answers to the ...


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