On appeal from the Superior Court of New Jersey, Law Division, Union County, L-1596-02.
Before Judges Petrella, Parker and Yannotti.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff appeals from dismissal of the complaint for her failure to conduct any meaningful discovery or obtain an expert's report within the 300-day discovery period required under R. 4:24-1(a). Plaintiff's motion to extend the discovery period was denied on the ground that she failed to show "good cause" as required by R. 4:24-1(c).
Plaintiff, an eighty-year-old woman, was visiting the Sands Hotel and Casino (Sands)*fn2 in Atlantic City with her daughter on Mother's Day in 2000. After parking in the hotel's garage, the women were taking an elevator to the hotel when the door of the elevator closed on plaintiff, knocking her to the floor. She was taken to a hospital by ambulance and treated for head and knee injuries. The elevators were maintained and serviced by the Schindler Elevator Corporation (Schindler), successor to defendant Millar Elevator Service Company.
Plaintiff requested certain preliminary information from defendant. Plaintiff's counsel submitted a certification stating that "plaintiff was supplied with an incorrect elevator number/designation by the Defendants in the original Discovery materials of accident reports and records which were received on August 9, 2002," but plaintiff did not even learn that the information was incorrect until after the 300-day discovery period had expired. Plaintiff failed to pursue any other discovery during the 300-day period. Indeed, plaintiff did not even retain an elevator expert until after expiration of the 300-day period.
Plaintiff's counsel asserts that sometime prior to February 19, 2003, which was the discovery end date, I had contacted the Civil Division office and requested a sixty day extension of discovery. For some reason, the discovery end date was not extended for the sixty day period. This request was made in accord with the Court's Best Practices Rule 4:24-1(c). This would have given Plaintiff until approximately April 19, 2003 in which to finalize our discovery. Notwithstanding counsel's assertion, it is undisputed that he failed to confirm "in writing to all parties" his telephone request for the sixty-day extension as required by R. 4:24-1(c). Moreover, there is nothing in the record to indicate that plaintiff's counsel made any attempt to follow up on the request or to even determine whether the extension was granted.
The discovery period ended on February 19, 2003. More than three weeks later, on March 12, 2003, defendant deposed plaintiff and her daughter. Plaintiff's counsel claims that he learned at the deposition of his own client that the discovery material provided by defendant was incomplete "in that the elevator number which was indicated as 3B was not in accordance with the State Inspection reports, as provided." This assertion is in direct contradiction to counsel's prior assertion that defendant's failure to provide the correct information was the reason he could not complete discovery within the 300-day period.
In late March or early April 2003, after plaintiff's deposition and at least a month after the discovery period had expired, plaintiff hired an elevator operations expert to prepare a report concerning elevator 3B at the Sands Hotel. The expert certified that he inspected the elevator "sometime in March or early April" but was "unable to ascertain or obtain any of the State Records due to the fact that there was no indication on the elevator what the corresponding State inspection number was." According to the expert, he was unable to prepare a report because he lacked access to the "correct elevator state designation" and could not obtain the inspection records kept by the State.
On April 16, 2003, almost two months after the discovery period ended, plaintiff finally propounded a notice to produce on defendants seeking a wide variety of documents concerning the elevator. It was not until June 6, 2003, however, three months after plaintiff's deposition, that plaintiff requested the correct elevator number or designation from defendants. In June 2003, Schindler sent plaintiff certain "documents pertaining to the elevator in question," but plaintiff claims that those documents did not include the State's numerical designation for the elevator.
On July 16, 2003, Schindler's counsel wrote to plaintiff stating that Schindler was not going to comply with any further discovery requests. Plaintiff claims that it was this refusal to comply with further discovery that prompted her to move for an extension of the discovery period, almost five months after discovery had expired and three months after expiration of the sixty-day extension purportedly requested by plaintiff's counsel.*fn3 Plaintiff was still blaming defendants for failing to provide the correct elevator number/designation for her delay in conducting discovery when, in fact, plaintiff did not even know the information was incomplete until her deposition after the 300-day period expired. Moreover, if plaintiff had retained an expert timely, the expert could have sought the correct information well before the 300-day period expired.
On July 25, 2003, plaintiff's motion to extend discovery was denied with the judge noting that under R. 4:24-1(c), "[e]xceptional circumstances are required.... Arbitration is already scheduled." Since no extension had been granted before the 300-day period expired, the court denied the motion.
On August 20, 2003, plaintiff moved for reconsideration of the July 25, 2003 order. Plaintiff's counsel continued to complain about his efforts to obtain the correct elevator number so that plaintiff's expert could prepare a report. He claimed that defendants' failure to provide the correct elevator ...