On appeal from Superior Court, Law Division, Bergen County.
Approved for Publication May 16, 1995.
Before Judges Pressler, Landau and Newman. The opinion of the court was delivered by Landau, J.A.D.
The opinion of the court was delivered by: Landau
Defendant K-Mart Corporation (K-Mart) is the assignee of a long term, periodically renewable lease for 85,000 square feet in the Closter Plaza shopping center owned by plaintiffs Bakhtaver and Aspi Irani (landlord). K-Mart wished to install a restaurant and pharmacy within the store's footprint, to replace its exterior signs, and to make certain limited parking lot changes. It also proposed to paint the facade, add trees and shrubs, install additional security lighting and repair fencing. Landlord did not consent.
K-Mart applied directly to the Planning Board of the Borough of Closter for requisite site plan and variance approvals, which were granted despite landlord's jurisdictional and other objections.
Landlord filed an action in lieu of prerogative writs, later dismissed on motion by order dated September 9, 1993. The dismissal permitted it to file an amended complaint requesting declaratory relief against K-Mart "as to whether the Lease Agreement dated November 19, 1964, and modified thereafter, between plaintiffs and defendant, K-Mart Corp. required that the defendant, K-Mart Corp. obtain plaintiffs' consent to the filing of the development application that was the subject of the August 27, 1992 Resolution of the defendant, Planning Board of the Borough of Closter...." Subject to being bound by the result of the action on the amended complaint, the Planning Board was dismissed as a defendant in the "final" order of September 9, 1993.
After filing the amended complaint, landlord served interrogatories, which were answered in part, but largely objected to by K-Mart. A motion to compel answers was made returnable on June 10, 1994, shortly before the scheduled trial date of June 16. At that time the motion Judge differed with the language of his earlier order and stated in "clarification" that the issue was not whether the lease permitted K-Mart to make an application to the planning board without consent, but only whether K-Mart had the right under the lease to make the alterations it desired. The Judge felt that the consent issue was subsumed by this initial question, and therefore denied landlord's interrogatory motion in its entirety. He also denied landlord's request to delay the trial in order to allow time for preparation under the "clarified" interpretation of the prior order *fn1
Thereafter, following a trial call before the presiding Judge on June 16, the matter was adjourned to June 22, 1994. A letter confirming that adjourned date was sent by K-Mart counsel. Unfortunately, on June 17, Parry Aftab, counsel for the landlord, received a notice from the court advising that trial was scheduled for July 1. She says this date was then confirmed in a telephone conversation with the assignment clerk. On June 21, Aftab faxed a copy of the June 17 notice to K-Mart's counsel, indicating that, in accordance with the notice, she would not be in court on June 22. However, K-Mart's counsel was subsequently advised by the trial Judge that the parties should appear for trial the next day. It is conceded that counsel communicated this to Aftab. According to Aftab, however, she attempted to confirm this with the trial Judge, but his chambers had closed for the day. A letter was then faxed to the Judge and K-Mart's counsel, outlining the disparate notices and concluding:
I have taken the liberty of sending this letter to avoid wasting an unnecessary appearance should one not be required tomorrow. I will be in my office at 8:00 a.m. tomorrow should Your Honor have any questions and will appear if Your Honor so requests, notwithstanding the trial notice.
At approximately 10:30 a.m. on June 22, Aftab claims, the Judge's secretary called her and asked if she would be able to appear the following day, June 23, at 1:00 p.m. This conversation allegedly can be confirmed by Aftab's associate, Ms. Jennifer Brooks. Aftab asserts that she informed the Judge's secretary that she was scheduled to appear in Bankruptcy Court and therefore could not appear for trial on June 23. The secretary promised to get back to Aftab, but supposedly never called again that day. Aftab claims that she assumed this meant that the Judge had received her June 21 fax.
According to the trial Judge's remarks from the bench on June 22, he had directed his secretary to call Aftab at around 11:00 a.m. to inform her that trial would begin at 1:30 p.m. that day. By 1:50 p.m., Aftab had not appeared. At that point, K-Mart's counsel, Stuart Reiser, successfully moved that plaintiffs' case be dismissed with prejudice for failure to prosecute. Subsequent to the dismissal, Aftab maintains, she called the Judge's chambers and spoke to the law clerk. The clerk allegedly told Aftab that the case had been dismissed and that, since faxes were received at a central location rather than at the Judge's office, he had just received her message of the previous day.
An order was entered on July 8, 1994, dismissing the complaint with prejudice, and repeating the earlier entered denial of landlord's motion to compel more specific answers.
Landlord appealed. We reverse both the order of dismissal and the blanket denial of each and every request for more ...