Before Judges Pressler, Wallace, Jr. and Axelrad. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-7709-97.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 18, 2002
This personal injury, fall-down action was brought by plaintiff Valeska Vargas against her then landlord, defendant Victor Camilo, doing business as Metropolitan Realty. Although defendant did not appear at trial, he was represented by his attorney, who called no witnesses and introduced no evidence. The jury found defendant ninety-five percent liable for plaintiff's injuries and awarded total damages of $70,000, which the court appropriately molded into a judgment for plaintiff.
Defendant's ensuing motion for a new trial or remittitur was denied, and he now appeals both from the judgment entered on the jury verdict and the order denying his post-trial motion. We affirm both.
The issues before us are largely procedural and primarily involve the court's decision to proceed to trial despite defendant's absence. We reject the leit motif of defendant's argument, namely, that the trial in his absence constituted a draconian and impermissible application of so-called best practices. *fn1 In our view, the litigation conduct of both defendant and his attorney amply justified the court's procedural rulings without regard to best-practices innovations.
Specific reference to the procedural history of this case is required. The premises consist of a three-building, multi- family complex containing close to two hundred apartments. Plaintiff, then a tenant, broke her ankle in a fall on a staircase leading from the first floor down to the parking lot. She attributed the cause of the fall to water and debris on the staircase and the handrail coming away from the wall when she reached out for it in an attempt to regain her balance. The premises were maintained by its then superintendent Luis Ruiz, and plaintiff testified at trial that she had repeatedly complained both to defendant and Ruiz about the debris permitted to accumulate on the staircase and the loose handrail. Ruiz had, she testified, appeared at the scene of her fall as she was being taken to the hospital by ambulance, and she had then remonstrated with him for not having responded to her numerous complaints.
Plaintiff filed her complaint in October 1997. Defendant's answer was a general denial accompanied by pro forma affirmative defenses which denied his negligence, attributed the fall to plaintiff's negligence, and asserted that any negligent cause of the fall was attributable to third parties over whom defendant had no control. Form interrogatories were served and answered by both parties. Defendant's answers denied knowledge of the event, asserted that his first notice thereof was service of process in this action, and gave no information at all about anything except to assert, without any further specification or particularization, that "[n]o artificial conditions were present." Although neither set of answers referred to Luis Ruiz, it was represented by plaintiff's counsel that she had fully explained his role both with respect to the premises and this accident in her deposition. We further note that plaintiff had provided all appropriate medical information including the report of her treating physician, a board-certified orthopedist. It appears that she was not asked to be examined by a physician for the defense. See R. 4:19.
Following the completion of discovery, the matter was set down for arbitration pursuant to R. 4:21A. The arbitrator, on December 2, 1998, awarded plaintiff a net recovery of $26,250. Defendant did not make a demand for a trial de novo within thirty days thereafter, and plaintiff accordingly moved for and was granted an order confirming the award. R. 4:21A-6(b)(1) and (3). Defendant did not appear and did not oppose that motion. Plaintiff then docketed the ensuing judgment and proceeded to attempt to enforce it. In May 1998, more than five months after the award, defendant moved for vacation of the judgment and for a trial de novo. The basis of the motion was his claim of excusable neglect in not having timely sought a trial de novo. Defendant asserted that he had expected his insurance carrier to pay the judgment but had learned that the carrier was in liquidation and its trustee had advised him that claims would not be entertained until March 1, 1999. For reasons that do not appear, and despite the dictates of R. 4:21A-6(b), the judge before whom this motion was brought treated the matter only as an application to vacate a default judgment. His ensuing order vacating plaintiff's confirmation judgment recited that "defendant may have a meritorious defense," and that "defendant's neglect in failing to oppose plaintiff's Motion to enter Judgment may be excusable...."
Thereafter, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for confirmation of the arbitration award. The motion for summary judgment was denied since plaintiff's prima facie case was patent and, indeed, defendant's motion appears to have been entirely frivolous. The cross-motion for restoration of the arbitration award, asserting that defendant was not entitled to demand a trial de novo five months after the award, was denied on the ground that that issue had already been decided by the judge who had vacated the confirmation judgment.
That brings us to the trial date. Insofar as we can determine from the record, the third scheduled trial date was Monday, April 23, 2001. It was the ninth case listed for trial and was reached on Tuesday afternoon, April 24, 2001. The associate of the firm then representing defendant, who had not been given the file by his office until the previous Wednesday, April 18, 2001, explained to the trial judge, Judge Waks, that defendant was out of the country. He further explained that defendant was his only planned witness and that he had reached out for him the previous week by telephoning his office, which had reported to him that defendant was in the Dominican Republic and was expected back on Friday or Saturday, April 27 or 28. It also appeared that counsel had never himself spoken with defendant at any time and that defendant made a lengthy trip to the Dominican Republic annually. Counsel did, however, verify that defendant had been given notice of the trial date and that he, defendant, had not communicated either with counsel or the court. Although Judge Waks declined to adjourn the trial yet again, he accommodated defendant's situation by agreeing to have plaintiff present her case and then to hold the jury over until the following Monday so that defendant could appear and testify on his own behalf. The prospective jurors were accordingly advised that their service for this case would continue until the following Monday or Tuesday. The jury was then selected, and counsel made their opening statements.
Trial resumed on Wednesday morning, April 25. Plaintiff's treating physician testified, and then plaintiff was called. Both were cross-examined by defense counsel. As a result of plaintiff's testimony, it occurred to defense counsel, with the court's prompting, that if Luis Ruiz could testify for the defense, there would be no need to call defendant, and the trial could then conclude. The problem was that counsel had not known about Ruiz before trial and had therefore made no effort to locate him. Nor did he know if Ruiz was still the superintendent at the apartment complex, and indeed, as he put it, he didn't know if Ruiz was "dead or alive." The judge afforded him, however, an attempt to locate him, and counsel was then apparently able to determine that Ruiz was no longer the superintendent, had moved to an unknown location somewhere in the five boroughs of New York, and that his whereabouts were not immediately determinable. Accordingly, as prearranged, the jury was excused until the following Monday.
On Monday morning, defense counsel advised Judge Waks that defendant had apparently not yet returned from the Dominican Republic and that he had neither heard from him nor knew how to communicate with him. Since he had no other witnesses, the judge instructed counsel to proceed with their summations. He then charged the jury, which returned with the verdict in plaintiff's favor.
The defense thereafter moved for a new trial or remittitur. By that time, counsel had learned that defendant had not returned as expected because of a medical emergency. Counsel argued that denial of the defense adjournment request before trial commenced constituted a denial of due process. He also argued that the original arbitration award should be reinstated because the pretrial decision to permit a trial de novo was erroneous and, alternatively, that if the trial were properly held, the verdict was excessive and should be remitted. We affirm ...