June 16, 2008
BROTHERS GENERAL CONTRACTORS, PLAINTIFF-APPELLANT,
MOJICA CONSTRUCTION, ROBERT CAPUTO, P.D.J. COMPONENTS, INC., AND ATLANTIC CRANE SERVICES, INC., DEFENDANTS-RESPONDENTS, AND MITEK INDUSTRIES, INC. AND PAUL H. REIMER, JR., P.E. DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Monmouth County, Docket No. L-4048-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2008
Before Judges Lisa and King.
This is an appeal from a series of orders entered in the Law Division denying plaintiff's motion to reinstate the complaint as to defendants Mojica and Caputo; entering summary judgment for all defendants; granting the motions by defendants Mojica and Atlantic Crane Service to strike the plaintiff's amendment to interrogatories, and to bar the testimony of plaintiff's expert. The orders effectively ended the litigation arising from a construction accident, causing damages to the plaintiff general contractor's worksite from the collapse of roof trusses. The action sought to collect damages of about $125,000 from several allegedly negligent defendant subcontractors involved in the construction work for the plaintiff general contractor.
The entire history of this litigation involves delay in investigation, conducting discovery, and the plaintiff engaging an expert necessary to establish liability and to oppose the dispositional motions filed by defendants. Nothing is presented to show the "exceptional circumstances" required to extend discovery after a trial date has been assigned, Rule 4:24-1(c), or to serve a late expert report, Rule 4:17-7. See Tucci v. Tropicana Casino, 364 N.J. Super. 48, 52 (App. Div. 2003).
The motion judge's exasperation at the plaintiff's lack of response to the process of investigating its claim and participating in an orderly discovery process is manifest in the ruling on June 22, 2007 on the several motions. The judge said:
And the problem I have here is, there was no motion to extend discovery. Summary judgments were filed. All we got is a letter with an expert report attached to it. You didn't even attempt to conform to the summary judgment rule.
I don't like being in this position where I am making these criticisms. It is so out in left field about the fact that you couldn't supply an expert report. You bought this cause of action. You started this thing on behalf of the plaintiffs. If they don't know what is wrong with the building, they shouldn't have brought this lawsuit.
My position on this is, -- you did not move to extend discovery. Took no action whatsoever, you just dropped this report when your back was to the wall, on the summary judgments. The expert report is out of time and I am going to bar it.
Your response to the summary judgment motions didn't even attempt to conform to what is required for summary judgment [Rule 4:46-2(b)]. We read these things cover to cover. I got stacks of them. And the rule is specifically designed so we can cut through the verbiage and know what everybody's positions is. We have nothing from the plaintiff with reference to that. Just tossing us an expert report. I am not accepting it. It is barred.
The record discloses that defense counsel were understanding and cooperative. But as the trial court judge felt, at a certain point "enough is enough." We see nothing in the record to suggest abuse of discretion or legal error justifying a reversal. We see no "exceptional circumstances" or "good cause" here. This case is quite in contrast to Tucci.
We cannot fault the judge for following the rules in the circumstance. We affirm for the reasons given by Judge Mullaney in his oral opinion of June 22, 2007.
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