On appeal from the Superior Court of New Jersey, Law Division, Hudson County L-5758-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Parrillo.
Plaintiff, Carlos Manzanares, appeals from Judge Bariso's order of September 20, 2007, denying his motion to restore his complaint, following a dismissal for failure to appear at mandatory non-binding arbitration. R. 4:21A-4(f). We affirm.
Plaintiff filed his complaint against defendants.*fn1 In June 2006, plaintiff consented to set aside default, adjourn a scheduled proof hearing, and permit defendants to file an answer. On July 11, 2007, plaintiff's counsel forwarded medical authorizations to plaintiff. At the time, plaintiff was apparently confined to the Hudson County Correctional Center.
On the same date, plaintiff's counsel wrote a letter to the arbitration administrator requesting an adjournment of the arbitration hearing scheduled for July 25, 2007. He indicated that plaintiff had been in prison, but he did not know if plaintiff was currently in prison, and he was seeking to confirm plaintiff's whereabouts. At the time counsel requested the adjournment, there was a pending motion to dismiss plaintiff's complaint for failure to provide discovery, the discovery end date being June 1, 2007.*fn2 Counsel's request for an adjournment of the arbitration hearing was denied on July 17, 2007. The court communicated the denial to plaintiff's counsel by telephone. Despite the denial, plaintiff's counsel failed to appear at the July 25 arbitration hearing. According to counsel, he did not appear because his secretary failed to calendar and advise him of the arbitration hearing date.
On August 23, 2007, plaintiff moved to reinstate his complaint, setting forth the reason for counsel's failure to appear and asserting that the non-appearance was the result of excusable neglect and inadvertent mistake under Rule 4:50-1. Defendants objected, noting that they appeared at arbitration with counsel, plaintiff did not indicate in his motion papers a willingness to reimburse defendant and counsel for the cost for their appearance, and that plaintiff's complaint had been dismissed on August 3, 2007, for failure to comply with a discovery request by the discovery end date of June 1, 2007. Plaintiff's counsel replied, indicating that he had a difficult time communicating with his client because his client had psychological problems to such a degree that he was homeless, in jail, and had an immigration detainer lodged against him.
Denying plaintiff's motion for reinstatement, Judge Bariso noted that "[p]rocedurally, this matter had been pending for some time and had a somewhat torturous pretrial history." Referencing defendant's motion to dismiss for plaintiff's failure to provide discovery filed on July 20, 2007, Judge Bariso found that counsel chose to completely ignore the arbitration hearing, despite counsel's awareness of the scheduled hearing date, as evidenced by the recent denial of counsel's request for adjournment. Judge Bariso concluded that counsel's "flagrant disregard of [his] earlier ruling" did not meet the standard for reinstatement of plaintiff's complaint.
Rule 4:21A-4(f) requires "[a]n appearance on behalf of each party" at mandatory non-binding arbitration. Thus, a dismissal is not an appropriate sanction where counsel appears at an arbitration without his or her client. Counsel's failure to appear came only one week after the court communicated its denial of the request for an adjournment. Therefore, we cannot conclude that counsel's failure to appear arose from an honest mistake "compatible with proper diligence" thereby constituting "excusable neglect" or inadvertent mistake. Baumann v. Marinaro, 95 N.J. 380, 394 (1984). However, that lack of excusable neglect or inadvertent mistake does not end our inquiry.
A dismissal for failure to appear at arbitration is analogous to a default judgment and, as such, a motion to reinstate is generally "'viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.'" Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002) (quoting Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 99 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999)). Generally, when determining whether good cause exists to support reinstatement, even when counsel's conduct, as here, does not rise to the level of excusable neglect, we are loath to visit the sins of the lawyer upon the innocent client and disfavor final dispositions based solely on procedural irregularities, thus depriving a party of having the case decided on its merits. See SWH Funding Corp. v. Walden Printing Co., 399 N.J. Super. 1, 14 (App. Div. 2008).
However, here, plaintiff's admitted failure to provide discovery, along with the lack of any positive indication by counsel in his moving papers for reinstatement that plaintiff has been located and was ready, willing, and able to participate in the prosecution of his action, evinces a lack of desire on the part of plaintiff to have his claim determined on the merits. Accordingly, we are satisfied that Judge Bariso's decision to deny reinstatement was an appropriate use of discretion.