On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication June 28, 1996.
Before Judges Pressler, Keefe and Wefing. *fn1 The opinion of the court was delivered by Keefe, J.A.D.
The opinion of the court was delivered by: Keefe
The opinion of the court was delivered by
Plaintiff, Ida Klajman, appeals from a judgment denying her motion to reinstate her complaint. We hold that the dismissal of plaintiff's complaint with prejudice, ostensibly under the authority of R. 4:23-5(a)(2), was so procedurally deficient and fundamentally unfair that exceptional circumstances have been shown warranting reinstatement of the complaint. R. 4:50-1(f). Thus, the judgment under review is reversed.
Plaintiff, an eighty-seven year old widow who is disabled and in poor health, instituted suit against defendant Fair Lawn Park Estates (Fair Lawn) in July 1992 through an attorney other than the attorney now representing her. The complaint alleged that Fair Lawn was a residential apartment complex and that plaintiff was a tenant there. It also alleged that Fair Lawn was negligent in the inspection, maintenance, operation, construction, and/or repair of the premises, and, as a consequence plaintiff was caused to slip and fall on the premises on July 9, 1991.
Fair Lawn served interrogatories and a demand for documents on plaintiff on October 2, 1992. Although a copy of the interrogatories were not included in the appendix, plaintiff claims that they consisted of ninety-three questions in this apparently simple negligence action. *fn2 When the requested discovery was not forthcoming, Fair Lawn moved to dismiss the complaint without prejudice. R. 4:23-5(a)(1). The motion was unopposed and an order was entered accordingly on July 9, 1993. Notwithstanding the dismissal, an order was entered on July 14, 1993, granting plaintiff permission to join third party defendant Affiliated Development, Inc. (Affiliated), as a direct defendant. It is not clear whether Affiliated was served or answered the amended complaint.
On October 29, 1993, Fair Lawn moved to dismiss the complaint with prejudice on the ground that responsive answers had not been provided within 90 days of the July 9 order of dismissal. R. 4:23-5(a)(2). Plaintiff cross-moved to restore her complaint on the ground that her counsel had provided responsive answers to interrogatories "together with all medical reports, records and bills[.]" Fair Lawn did not respond to plaintiff's motion.
On November 19, 1993, the motion Judge entered a judgment of dismissal with prejudice without conducting a hearing, or requiring plaintiff's counsel's appearance, or ascertaining whether plaintiff had been notified of Fair Lawn's motion. The order states that the motion was unopposed, notwithstanding plaintiff's cross-motion. On the same day, the same Judge denied plaintiff's motion to restore her complaint. No explanation for either decision was placed on the record. R. 1:6-2(f).
On November 21, 1994, plaintiff's current counsel filed the present motion for relief from judgment pursuant to R. 4:50-1. Counsel's certification stated that plaintiff and her former attorney had experienced problems of "miscommunications" and, as a result, plaintiff engaged new counsel. Fair Lawn opposed the motion. The motion was denied by order of January 9, 1995. There is no indication in the order that the Judge stated his reasons on the record for denying same. R. 1:6-2(f). This appeal followed.
A motion for relief from a judgment made pursuant to R. 4:50-1(a) due to "excusable neglect" must be "made . . . not more than one year after the judgment . . . was entered[.]" R. 4:50-2. In contrast, a motion made after that date must be decided under R. 4:50-1(f), in which case relief may be granted from the judgment only if there are "exceptional circumstances" shown. Baumann v. Marinaro, 95 N.J. 380, 395, 471 A.2d 395 (1984). The word "made" in R. 4:50-2 must be construed in the context of R. 1:6-3 which provides that "service of motion papers is complete only on receipt at the office of adverse counsel[.]" In this case, November 19, 1994, fell on a Saturday. Therefore, plaintiff had until November 21, 1994, to perfect her motion. R. 1:3-1. While she filed the motion with the court on that day, she did not serve the motion on her adversary until December 5, 1994. Therefore, plaintiff was required to prove "exceptional circumstances." We find they exist in this case for the reasons that follow.
In Zimmerman v. United Services Auto., 260 N.J. Super. 368, 616 A.2d 957 (App. Div. 1992), we made it clear that "client notification . . . is at the heart of the dismissal with prejudice practice[.]" Id. at 375. We further pointed out that the rule "mandated" that the attorney for the party moved against appear in court and that oral argument could not be waived. Id. at 376. We endorse the reasoning of Judge Coburn in Suarez v. Sumitomo Chemical Co., 256 N.J. Super. 683, 688, 607 A.2d 1057 (Law Div. 1991):
To obtain the primary and secondary goals of this rule, it is absolutely essential that the courts require counsel for the delinquent party to adhere to the notice and appearance provisions, even though the rule does not expressly so provide. . . . Thus, if on the return date of the "with prejudice" motion counsel fails to appear, or does so, but has failed to properly ...