On appeal from Superior Court, Law Division, Monmouth County.
Morton I. Greenberg,*fn1 R. S. Cohen and Gruccio. The opinion of the court was delivered by: Gruccio, J.A.D.
Plaintiff appeals from an order dismissing his complaint which was entered when his attorney refused to proceed to trial after the court limited his presentation to discovery depositions since his only live witness, who was attending college in California, was unable to be present in court that day. Plaintiff contends that the trial court committed an abuse of discretion by dismissing the case. We agree and reverse.
Plaintiff's complaint was filed on May 24, 1982. The gravamen of the complaint is that defendant, plaintiff's husband, while doing some work at home negligently placed a table on a stoop, which plaintiff fell over, injuring herself. The matter proceeded at a leisurely pace with defendant filing an answer about three and one-half months later, plaintiff's deposition being taken on September 21, 1983, and defendant's on February 23, 1984.
In August 1984, defendant killed his wife and then killed himself. Apparently, the court sua sponte placed the matter on the inactive list where it remained in limbo until April 1985, when an exchange of letters between counsel, with copies to the court, spurred a June trial listing, which was thereafter continued to August 1985. At that time, plaintiff's counsel explained that the sole witness, a child of the parties, was attending college in California. Since the case could not be settled, the assigned trial judge acceded to counsel's request that the matter be listed when the witness would be home during the holiday vacation period in January.
A further conference was called by the assignment judge for September 30, 1985, and a January 6, 1986, trial date was fixed. Four days later the assignment judge sua sponte advanced the
trial listing to November 18, 1985, and requested plaintiff's counsel to contact the witness to ascertain his availability on that date. After doing so, counsel wrote the assignment judge a letter which reads:
The last time we appeared in Court regarding the above entitled matter, on September 30, 1985, you indicated that the trial would be scheduled for January 6, 1986 with a preference. Your chambers subsequently called my office and indicated that the trial was being scheduled for November 18, 1985.
I immediately notified Michael Santos, the son of the deceased plaintiff and defendant, who is the witness, and who is presently in college in California. He has called to advise me that he will be back in New Jersey from December 21, 1985 through January 14, 1986 and it would be impossible for him to fly here from California for this trial.
I would, therefore, respectfully request that this matter be returned to the trial date of January 6, 1986 with a preference or, in the alternative scheduled for a date when Mr. Santos is here in New Jersey.
The letter was returned with a written ...