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Comeford v. Flagship Furniture Clearance Center

Decided: December 23, 1983.

MARY T. COMEFORD AND JOHN COMEFORD, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
FLAGSHIP FURNITURE CLEARANCE CENTER, DEFENDANT, AND W. J. SLOANE AND CITY STORES, INC., DEFENDANTS-RESPONDENTS-THIRD PARTY PLAINTIFFS, V. R. & R. SEAL COATING & STRIPPING, THIRD PARTY DEFENDANT



On appeal from Superior Court, Law Division, Middlesex County.

Petrella and Brody.

Per Curiam

Plaintiffs appeal the denial of the motion to restore their negligence case to the trial calendar. It had been dismissed for failure to answer interrogatories. We affirm.

There is no dispute regarding the procedural history of this case. On October 30, 1980 plaintiffs filed their negligence complaint against defendants arising out of a fall on defendants' premises. Defendants W. J. Sloane and City Stores, Inc. filed their answer on or about April 22, 1981 and filed a third-party complaint as well. Defendants served interrogatories on plaintiffs' attorney on April 27, 1981. By notice of motion dated April 22, 1982 and returnable May 21, 1982 the attorneys for defendants moved under R. 1:6-2 and 4:23-5 for an order dismissing the complaint for failure to supply answers to interrogatories. The supporting certification indicated that the time for service of the answers expired on June 27, 1981. The motion was granted and the then assignment judge entered an order of dismissal on May 21, 1982.

By a motion dated March 25, 1983 and filed April 6, 1983 with the Middlesex County Clerk, plaintiffs' attorney moved for an order of restoration. In support of that motion plaintiffs' attorney stated the following in his supporting certification which bears the date April 5, 1983.

2) Interrogatories were not sent out because deponent was awaiting several hospital records from inside and outside the State, (namely Maryland). The Order was obtained following the period after the death of my mother.

3) As indicated by the date of letter (9/15/82), interrogatories were to be sent out incomplete. Because of my illness from October 1982 through February 1983, they were not sent out timely.

Deponent contends that this is excusable neglect. Moreover, the plaintiff, as indicated by interrogatories, has been confined to the hospital and home due to her injuries and could not answer the interrogatories.

4) Deponent is completing this Certification as a patient in St. Peter's Hospital, for another hospitalization, beginning on March 30, 1983.

Plaintiff's attorney states that incomplete answers to interrogatories were prepared on September 15, 1982, but because of intervening events they were not sent out by his office until April 4, 1983 when the motion to restore was filed.

Defendants' answering certification to the motion pointed out that there was no reason that the answers could not have been sent out even in an incomplete form at an earlier date. The certification stated that:

after the Order dismissing the Complaint was obtained, I personally called Mr. Swarbrick's office on more than one occasion to inquire as to whether or not he had any intention whatsoever of restoring this case. On none of those occasions did Mr. Swarbrick himself ever speak to me nor did he ever return any of my telephone ...


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