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Tenby Chase Apartments v. New Jersey Water Co.

Decided: May 31, 1979.

TENBY CHASE APARTMENTS, A PARTNERSHIP; AND MILLSIDE MANOR, A PARTNERSHIP, PLAINTIFFS-RESPONDENTS,
v.
NEW JERSEY WATER COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Chancery Division, Union County.

Halpern, Ard and Antell. The opinion of the court was delivered by Halpern, P.J.A.D.

Halpern

[169 NJSuper Page 56] By leave granted on September 1, 1978 defendant appeals from an order dated June 21, 1978 whereby the court refused to vacate its order of October 28, 1977 suppressing defendant's answers and striking its counterclaim

for failing to answer plaintiffs' interrogatories and request for admissions within the time prescribed by the rules of court; it also appeals from an order dated August 4, 1978 denying its application to reconsider the June 21, 1978 order.

A brief review of the nature of the issues involved, and a chronology of the essentially undisputed procedural facts, will be helpful to a resolution of this appeal. On April 29, 1977 plaintiffs, the owners of garden apartments, filed this multicount Chancery Division complaint against defendant charging it with providing impure and unpalatable water, to plaintiffs' damage. Plaintiffs sought compensatory and punitive damages, as well as injunctive relief. In June 1977 defendant answered plaintiffs' complaint by denying liability and sought damages by way of a counterclaim against plaintiff Millside Manor.

On or about June 8, 1977 plaintiffs served a request for admissions on defendant. In July 1977 plaintiffs served interrogatories on defendant. On October 27, 1977, after plaintiffs made many unsuccessful attempts to have defense counsel answer the interrogatories, they obtained and filed an order pursuant to R. 4:23-5 striking defendant's defenses and counterclaim. On March 16, 1978 defense counsel was served with notice that a hearing to assess damages would be held on March 22, 1978.

At the hearing on March 22, 1978 defense counsel, for reasons which will appear later, made an oral application, without supporting papers, for relaxation of R. 4:23-5(a) pursuant to R. 1:1-2, or for relief under R. 4:50-1(f). At the hearing, the trial judge did the following: (1) he adjourned the hearing to assess damages to April 10, 1978; (2) he granted defense counsel leave to move for relief from his October 28, 1977 order, to be returnable on April 10, 1978, on the conditions that (a) defense counsel serve upon plaintiffs complete answers to the interrogatories and request for admissions by March 29, 1978, and (b) defense counsel pay Robert M. Dangel a fee of $750.

Defense counsel complied with the March 22, 1978 order by forwarding the sum of $750 to Dangel on March 23, 1978; he hand-delivered to plaintiffs' counsel the answers to the interrogatories and the answers to the request for admissions on March 30, 1978. He then moved on April 7, 1978, as directed by the trial judge, for relief from the October 28, 1977 order, and made it returnable on April 10, 1978. The motion was supported by an affidavit of defense counsel as to why his client should be given relief. He also indicated in his affidavit that he had not advised his client of the October 28, 1977 suppression order until after his appearance in court on March 22, 1978. The trial judge, after considering the pleadings and the arguments of counsel, entered an order on June 21, 1978 denying the application.

On July 18, 1978 substituted counsel for defendant moved for a rehearing and reconsideration of the June 21, 1978 order. The motion was supported by additional and more detailed affidavits filed by original defense counsel and his law partner, together with a detailed medical certificate relating to original defense counsel's mental and physical condition during the period in question. On August 4, 1978 the motion was denied. To date, plaintiffs' damages have not been assessed, nor has defendant filed a separate suit as permitted by the trial judge's order to recover on its counterclaim against Millside Manor.

The narrow issue presented is whether the trial judge mistakenly exercised his discretion in denying the relief requested by defendant under R. 1:1-2 or R. 4:50-1(f), or a combination of both rules.

R. 1:1-2 provides:

The rules in Part I through Part VII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. In ...


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