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Aujero v. Cirelli

Decided: June 23, 1988.

DENNIS AUJERO, PLAINTIFF-RESPONDENT,
v.
JOHN CIRELLI, JR., D/B/A LUIGI'S RESTAURANT AND PIZZERIA, AND LEONARDO'S RESTAURANT, INC., D/B/A LUIGI'S RESTAURANT, DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS, V. HOBART CORPORATION, THIRD-PARTY DEFENDANT



On certification to the Superior Court, Appellate Division.

For modification and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, and Stein. For reversal -- None.

Per Curiam

In this action seeking recovery of damages for personal injuries the trial court dismissed the complaint, pursuant to Rule 4:23-5(a), for plaintiff's failure to answer defendants' interrogatories. Eleven months thereafter plaintiff brought a motion to vacate the order of dismissal. The trial court denied the application. In an unreported opinion the Appellate Division reversed, because "both excusable neglect by plaintiff's attorney and lack of prejudice to defendant[s] are manifest on the record." We granted certification, 108 N.J. 671 (1987), and now modify the judgment below by remanding to the trial court.

I

Plaintiff was seventeen years old when, on October 7, 1982, he sustained personal injuries in the course of his employment at defendants' restaurant and pizzeria. There appears to be no dispute that plaintiff's fingers were mangled in a dough-mixing machine. Through his attorneys, Baker, Garber, Duffy & Baker (Baker, Garber), he filed a complaint in four counts. Although the legal propositions recited in support of the allegations

of liability are not entirely clear, the complaint generally charges that plaintiff's injuries were a proximate result of (1) defendants' violation of "the Child Labor laws and statutes of the State of New Jersey," (2) defendants' breach of warranty and strict liability in respect of the defective nature of the dough-mixing machine, (3) defendants' negligence, and (4) the dough-mixing machine's "unsafe, dangerous and ultrahazardous" properties. In due course defendants answered and served plaintiff with interrogatories. Because those interrogatories remained unanswered well beyond the sixty-day time limit prescribed by Rule 4:17-4(b), defendants moved to dismiss the complaint pursuant to Rule 4:23-5. Baker, Garber did not respond to the motion to dismiss, which the court granted in May 1985.

In the meantime, apparently acting on the assumption that their motion to dismiss would be granted but that the case thereafter would be restored in keeping with Rule 4:23-5(a), defendants obtained leave to file a third-party complaint against Hobart Corporation (defendants' motion for leave to add a third-party defendant was filed and served before the complaint was dismissed), and continued to litigate a question of coverage between the liability and workers' compensation carriers. As a result of that litigation the attorneys representing defendants on this appeal were substituted in defense of the third count of the complaint, the negligence count. We note that as long as five months after the complaint had been dismissed the parties were still litigating the coverage issue and serving plaintiff's attorneys with the moving papers.

In August 1985 both the firm representing defendants on the third count and the attorneys for third-party defendant wrote to Baker, Garber requesting the answers to interrogatories -- this despite the fact that the complaint had been dismissed some three months previously. The first communication was addressed to an associate in the Baker, Garber firm -- not the associate responsible for this case -- and the second was sent to that firm marked "Attention: George J. Duffy," the partner

who had signed the complaint on the firm's behalf. Neither letter reached its intended recipient, nor, as we shall see, could it have reached him given that firm's office procedures for routing the incoming mail. It appears from these communications that neither the defendants' attorneys nor the lawyers representing Hobart Corporation were pressing the obvious advantage they enjoyed by virtue of the order of dismissal, for their action was inconsistent with the case's status as "dismissed"; rather, their purpose seems to have been to alert someone in the Baker, Garber firm to the fact that the firm was sitting on a dismissed case, to the end that a motion to restore would be forthcoming.

That was not to be. Therefore, after one last communication to the court in September 1985, with a copy to all attorneys (but with the coverage litigation still stewing), the firm for defendants on the third count closed its file in January 1986, as did the attorneys for third-party defendant and the attorneys for defendants on the remaining counts of the complaint.

The interment of the litigation was but fleeting. By motion dated April 23, 1986, Baker, Garber sought to resurrect the case by a motion to vacate the May 1985 order of dismissal, to permit plaintiff to serve answers to interrogatories, and to restore the case to the trial calendar. An affidavit of George Duffy in support of the motion reads in part as follows:

The attorney assigned to the [plaintiff's] case at [the time it was dismissed] in this office was [X], Esq. Mr. [X] was a Senior Associate charged with the responsibility of the prosecution of the lawsuit. The Order dated May 24, 1985, was not entered in the diary of our office. On March 31, 1986, [X] left the employ of Baker, Garber, Duffy & Baker on having given two weeks notice previously. In reviewing his files after his departure, we discovered that no effort had been made to vacate the Order of May 24, 1985, nor had any action been taken by Mr. [X] to correct the situation. This was not withstanding the fact that considerable activity was taking place in the file.

Upon the departure of [X], Esq. from the office, a full review of his files was conducted, and I assigned this file to myself. Upon noticing the default and the Order of May 24, 1985, I took immediate steps to complete the answers to interrogatories and supply all information available to date. A copy of plaintiff's

answers to interrogatories duly executed by Dennis Aujero is attached to these moving papers.

I can offer no extenuating circumstances to the Court why the Order dated May 24, 1985, was not vacated in accordance with the provisions of Rule 4:23-5. Plaintiff and Baker, Garber, Duffy & Baker now stand ready to fully comply with all discovery requirements of the defendants.

While the delay brought about by the failure to vacate the May 24, 1985, Order undoubtedly has inconvenienced the defendants, and impaired the control of the calendar by the Court, we respectfully suggest that plaintiff Dennis Aujero should not be penalized in the circumstances. It is also submitted that while the defendants may have been inconvenienced, the delay has not substantially prejudiced the defendants.

Defendants resisted the application to restore on the grounds that the delay in furnishing answers to interrogatories not only had prejudiced their ability to defend against plaintiff's main case but had inhibited their "course of discovery of witnesses and experts in the products liability third party case."

At the argument of plaintiff's motion to restore, Mr. Duffy, appearing for Baker, Garber, candidly acknowledged that he could "offer no excuse" for the time lapse, and that he had to "stand responsible for it." His argument focused on the court's discretion to enlarge the thirty-day period of Rule 4:23-5(a) for vacating ...


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