On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. MER-L-3067-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Graves.
Plaintiff Aleksandr Bakman appeals from the order of the Law Division dismissing, with prejudice, his personal injury action against defendants Marina and Jack Gordon. After reviewing the record, and in light of prevailing legal standards, we reverse and remand for further proceedings.
The trial court issued the order dismissing the case with prejudice as a sanction for plaintiff's counsel's failure to appear on the return date of a motion filed to reinstate the complaint, which had been previously dismissed by the court without prejudice. This earlier dismissal was also entered as a sanction for plaintiff's counsel's inability to proceed to trial on July 17, 2006, the scheduled trial date.*fn1
At that time, plaintiff's counsel had requested a one-week adjournment of the trial because the physician she expected to call as an expert witness was not available. Prompted by defense counsel's objection, it came to light that plaintiff had not provided defendant with the proposed expert's report within the discovery period.
On July 25, 2006, plaintiff's counsel filed a motion to reinstate plaintiff's cause of action, which was returnable on August 18, 2006. In support of the motion, counsel attached the report of Dr. Steven L. Nehmer, dated July 20, 2006; which was four days after the previously scheduled trial date. In the brief filed in support of this appeal, plaintiff's counsel indicates, (without a citation to the record as required by Rule 2:6-2(a)(4)), that she was told by a staff person at the Motion Clerk's office that the motion would be heard on September 8, 2006.
Counsel further indicates that she became ill on September 7, 2006, and was thus unable to attend the oral argument hearing scheduled the following day. Although she states that she directed her staff to advise the court of her illness, there is nothing in the record before us to substantiate this claim. The record is also devoid of any evidence that counsel sent a follow-up letter to the court confirming her illness, and requesting a further opportunity to argue her motion to reinstate plaintiff's complaint.
Against these facts, the trial judge perceived plaintiff's counsel's conduct here to have been less than competent. The following observations illustrate the point:
[w]e do have the occasion to deal with people like [plaintiff's counsel], that perhaps less out of guile and more out of a substantive inadequacy in prosecuting lawsuits, that significant errors, misrepresentations are made that result in the kind of situation we have here.
We start our discussion by noting that "a trial judge has great discretion in the manner he or she manages a case." Conrad v. Michelle & John, Inc., _____ N.J. Super. _____ (App. Div. 2007) (slip op. at 12). That being said, however, "the sanction of dismissal with prejudice for a procedural violation must be a recourse of last resort." Id. (slip op. at 13). Here, the record shows that plaintiff's counsel was less than candid with the trial court as to her reasons for requesting the initial adjournment of the trial date. The sanctions imposed by the court for this dereliction of responsibility on counsel's part was entirely proper.
Counsel's failure to appear on the return date of her own motion to reinstate her case appears to be equally indefensible. We are nevertheless troubled by the court's imposition of the ultimate sanction of dismissal with prejudice, without affording counsel an opportunity to justify her absence. At that time, the court may also request that counsel provide a legal basis for admitting an expert ...