On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2136-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
Plaintiff appeals from an order dismissing her complaint with prejudice, when she failed to proceed with trial as scheduled, and the order denying plaintiff's motion to reinstate the matter. The underlying matter was scheduled for trial on March 26, 2007. Plaintiff's counsel Feng Li appeared. Jury selection was to commence the next day. On March 27, plaintiff appeared but her attorney did not. Plaintiff stated counsel was ill. The trial judge delayed jury selection for the following day and explained to plaintiff her attorney must contact the court.
Plaintiff appeared without counsel on the rescheduled trial date. The trial judge inquired about her efforts to contact her attorney. Plaintiff again suggested he was ill and she could not contact him. The judge told plaintiff the jury would be selected that day once the panel was released from jury orientation and the trial would commence the following week. The court recessed. The jury panel was seated and the court reconvened the matter. The judge learned plaintiff had left the courthouse. Thus, the trial judge dismissed the matter with prejudice and excused the jury panel. The judge also scheduled a hearing on the contempt citation issued to plaintiff's counsel. The order of dismissal was filed on March 30, 2007.
The record does not contain the contempt proceeding, however, we are provided with correspondence from Mr. Li. He states his representation terminated when plaintiff suggested he feign illness to postpone the trial. He failed to advise the court he would not be appearing.
Plaintiff filed a motion for reinstatement of her complaint. On June 8, 2007, the trial judge denied the motion stating plaintiff voluntarily absented herself from proceeding and failed to present a basis for reconsideration.
Plaintiff's merits brief contains as her argument a general statement disparaging defendants, her former counsel, the vicinage Assignment Judge, and the trial judge suggesting the order was "wrongful" and "violated Rule 4:35-1."
Plaintiff's request to reinstate her complaint is a request for reconsideration of the court's order governed by Rule 4:49-2. "Reconsideration cannot be used to expand the record and reargue a motion. Reconsideration is only to point out 'the matters or controlling decisions which [a party] believes the court has overlooked or as to which it has erred.'" Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, __ N.J. Super. __, __ (App. Div. 2008) (slip op. at 7), (quoting R. 4:49-2). Moreover, the motion must be served within twenty days after service of the judgment. R. 4:49-2. This court may only disturb the decision below if it finds error, which is "clearly capable of producing an unjust result." R. 2:10-2.
Our review reveals no basis to disturb the trial court's exercise of discretion in dismissing plaintiff's motion for reconsideration as it was untimely. "Neither the parties nor the court may . . . enlarge the time specified by R. 4:49-2."
R. 1:3-4(c); Eastampton Ctr., LLC v. Planning Bd. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002).
Additionally, plaintiff's misrepresentation regarding counsel's absence, which was a result from her conduct and her deliberate departure during jury assembly, warranted dismissal pursuant to Rule 4:37-2. After analyzing the record, in light of the written and oral arguments advanced by the parties, we conclude the remaining arguments ...