On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5667-97.
The opinion of the court was delivered by: Holston, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Axelrad, Holston, Jr. and King.*fn1
Plaintiffs, Harry F. Farrell (Farrell) and Doris V. Farrell, appeal the Law Division's March 8, 2004 order denying their motion to restore their case to the trial calendar.*fn2 We are convinced that the court mistakenly exercised its discretion in denying the motion. We reverse and remand the case to the trial court.
The complaint and jury demand in this personal injury negligence action was filed on May 14, 1997.*fn3 Plaintiff claims that he incurred personal injuries on April 22, 1997, proximately caused by defendant, James Rivera (Rivera), who was driving a 1995 GMC Van owned by and with the permission of defendant, TCI of Northern New Jersey Tele-Communications, Inc. (TCI). Plaintiff alleges that he sustained serious personal injuries when, after having been stopped at a red light, he proceeded slowly into an intersection on his motorcycle after the traffic light had turned green for his direction and was hit by TCI's speeding cable truck being driven by Rivera. Plaintiff claims Rivera ignored the red light in his direction.
The parties engaged in extensive discovery of the two plaintiffs, Larry Homsany (Homsany), who was a motorist waiting directly in line at the red light behind plaintiff, the traffic reconstruction experts, economic experts, employability experts and several medical experts. Discovery continued into 2000.
Unknown to any party was the fact that on January 6, 1999, a court-generated order dismissing the complaint and suppressing defenses was entered by the court, pursuant to Rule 4:21A-4(f), for the parties' failure to appear for mandatory arbitration on that date. However, the court failed to issue any notice of the arbitration and failed to provide notice of the dismissal order to any of the parties.
Thereafter, the court entered three discovery orders, all of which were served on the parties, thereby indicating that the case was still active. The last order was entered on July 8, 1999.
According to the certifications made to the court by plaintiff and plaintiffs' counsel, plaintiff fell and injured his left elbow in February 2000 as a result of the limp that he had developed after six surgical procedures he incurred for injuries to his left foot sustained in the accident. Because plaintiffs' counsel felt there might be medical malpractice in the treatment of plaintiff's elbow, counsel sent plaintiff's medical records to an orthopedist for review, anticipating the need to amend the complaint if medical malpractice were determined by the orthopedic consultant. However, the absence of malpractice was confirmed by the orthopedist's medical opinion dated March 22, 2001.
On April 26, 2001, defendants' counsel's office contacted the court to determine the status of the case since no correspondence, discovery or communication on the file was exchanged since May 24, 2000 and no communication regarding arbitration or trial had been received from the court. The court advised that the matter was dismissed on January 6, 1999. In October 2001, defendants' counsel requested a copy of the dismissal order from the court. In November 2001, defendants' counsel received a copy of the order of dismissal but failed to serve it upon plaintiff despite the "NOTE" contained in the order expressly directing that the attorney receiving the order shall serve it on all interested parties within seven days. Defense counsel did not inform plaintiffs' counsel that he had been informed by the clerk that the case was dismissed nor did he copy plaintiffs' counsel with his letter to the court requesting a copy of the dismissal order. Defendants' counsel made the strategic decision not to inform plaintiffs' counsel of his oral knowledge of the dismissal, based on counsel's belief that, the longer time went by, the less likely the court would permit a vacation of the dismissal order when plaintiff became aware of the dismissal. Defense counsel contends the order was never served upon plaintiffs' counsel because it was inadvertently placed in the case file in his office since there had been no activity on the file.
According to plaintiffs, in 2001, plaintiff's treating physician indicated that subsequent medical procedures would be needed to correct plaintiff's left foot. Plaintiff's left foot worsened and in order to pay for a required operation, plaintiff needed to wait for employer-provided medical insurance to become effective. The surgery was ultimately performed in 2003.
In February 2003, plaintiffs' counsel filed a substitution of attorney as he had changed law firms. The substitution of attorney was never returned by the clerk's office indicating that the case had been dismissed.
In July 2003, plaintiffs' counsel learned for the first time that the case had been dismissed and immediately advised plaintiff that he should return to New Jersey from Alabama, where he was living with his sister as a result of depression from his estrangement from his wife, so that he could update his medical and work history. Counsel was of the view that if he filed a motion for relief from the order of dismissal pursuant to Rule 4:50-1 that the judge, after granting the motion, would schedule an early arbitration or trial date. After meeting with plaintiff in early December 2003 and arranging to update his medical and employment history, plaintiffs' counsel reviewed the clerk's file in December 2003 and learned for the first time that the case had been dismissed for failure to appear at an unnoticed arbitration.
Plaintiffs' counsel asked defense counsel to consent to reinstatement given the lack of notice to both counsel of either the scheduling of the arbitration or the order of dismissal and because of the entry of subsequent orders entered by the court indicating that the case was active. On December 30, 2003, defense counsel refused to consent. On January 6, 2004, plaintiffs filed their motion to restore the ...