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Georgis v. Scarpa

Decided: July 6, 1988.


On appeal from Superior Court of New Jersey, Law Division, Cumberland County.

King, Gruccio and D'Annunzio. The opinion of the court was delivered by Gruccio, J.A.D.


[226 NJSuper Page 247] Defendant James Ralph Scarpa, Jr., appeals the denial of a motion to vacate a default judgment entered against him for $170,000. The issue is whether the drastic sanction of dismissal should be imposed upon defendant as a result of a 92-day delay in answering interrogatories. The underlying policy concerns the traditional conflict between judicial efficiency and substantive justice. Dismissal of defendant's answer because of the delay in answering interrogatories maintains calendar control yet deprives defendant of his day in court. We are concerned that trial courts may be striking an improper balance between calendar control and substantial justice.

The procedural history is not in dispute. On December 18, 1985, plaintiff filed a complaint alleging that defendant assaulted her on November 1, 1985. Plaintiff sought compensation for serious injuries and resultant hospitalization and punitive damages for the willful, intentional conduct. Defendant's answer filed January 27, 1986, generally denied these allegations.

On March 13, 1986, plaintiff served interrogatories required to be answered in 60 days. R. 4:17-4(b). On notice dated June 9, 1986, plaintiff's attorney moved under R. 4:23-5 for an order striking defendant's answer for failure to answer the interrogatories; an ex parte order to this effect was filed June 10, 1986. After plaintiff entered default against defendant on July 21, 1986, the court fixed August 7, 1986, for a proof hearing and notice was mailed to defendant's attorney on July 28, 1986.

On August 6, 1986, defendant's newly-retained counsel requested postponement of the proof hearing so he could familiarize himself with the case. That request was granted. On October 10, 1986, defendant moved to reinstate his answer, alleged compliance with R. 4:23-5, and submitted the answers to the interrogatories. Additionally, defendant's attorney filed a supporting affidavit and brief indicating defendant answered the interrogatories on June 12, 1986, but defendant's former attorney never typed and forwarded the answers to plaintiff's counsel because of problems with that attorney's paralegal and inability to pay that attorney's retainer. Plaintiff argued that the motion was out of time pursuant to R. 4:23-5, the answers to interrogatories were not fully responsive and the problems between defendant and his former attorney should not be considered by the court. Defendant failed to timely answer interrogatories and therefore his pleadings were dismissed by order dated June 10, 1986. Defendant did not move to vacate that order within 30 days as required by R. 4:23-5. The delay of 92 days is calculated from July 10, 1986,*fn1 to October 10,

1986, the day defendant moved to reinstate his answer thereby responding to the June 10, 1986 order.

The motion to reinstate defendant's answer was heard November 7, 1986, and denied. The motion judge made no findings of fact nor conclusions of law. The letter opinion also barred defendant from participating in the proof hearing which was set before another judge, citing Fox v. Fox, 76 N.J. Super. 600 (Ch.Div.1962). After the November 14, 1986 proof hearing, plaintiff was examined by a court-appointed physician. This procedure, ordered by the judge who conducted the proof hearing, is one which we commend in like situations. Following receipt of the medical report and consideration of plaintiff's testimony, a written decision was rendered and judgment was entered in the total sum of $170,000.

We first observe that the grant or denial of a motion for vacating a dismissal rests in the sound discretion of the trial judge. Zaccardi v. Becker, 88 N.J. 245, 251 (1982); Lang v. Morgan's Home Equipment Corp., 6 N.J. 333, 339 (1951). Appellate courts have generally declined to interfere with matters of discretion unless it appears that the trial judge has mistakenly exercised his discretion and an injustice has been done. Allegro v. Afton Village Corp., 9 N.J. 156, 160-161 (1952); Comeford v. Flagship Furniture Clearance Center, 198 N.J. Super. 514, 517 (App.Div.1983).

The usual deference we pay to a trial judge's determination of a R. 4:50-1 motion is less compelling here, however, where the motion judge has made no findings to explain the reasons for denying the motion. Our review of the record indicates that the motion judge misconceived applicable law and, as a result, failed to consider appropriate factors. Because of this misconception, his exercise of discretion lacks foundation and becomes an arbitrary act, however conscientious. Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App.Div.1960). We must, accordingly, adjudicate the controversy in light of the applicable law.

Our review of the record reveals that the motion judge mistakenly opined that his choice was between imposing the

drastic sanction of dismissal of defendant's answer or imposing no sanction at all:

THE COURT: It may lack judicial efficiency but if we don't follow that rule -- route then every time an attorney files an application to dismiss an answer or complaint for failure to answer interrogatories, and every time the advisory [ sic ] comes in forty-five days late or sixty days late or ninety days late and says I had real problems getting the interrogatories out, we are going to set them aside, set the order aside, and start over.

That's always the problem in every single case, every time this issue arises the client deserves his day in court and in all due respect to the decisions that say that, the Court strains itself to run an efficient system and follow the rules. If every person is ...

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