On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1276-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Fuentes.
Defendant Bergenwood Commons Condominium Association appeals from the order of the Law Division denying its motion for an extension of time to serve expert reports. Pursuant to our holding in Mack Auto Imports, Inc. v. Jaguar Cars, Inc., 244 N.J. Super. 254 (App. Div. 1990), we dismiss the appeal as moot.
This is defendant's second appeal concerning this issue. In the first appeal, A-1 Property Management, L.L.C. v. Bergenwood Commons Ass'n, Inc., No. A-5603-05T2, (App. Div. May 4, 2007) (slip op. at 2), we reversed the trial court's summary judgment order dismissing defendant's claims against plaintiff due to a lack of an expert report. We concluded that the trial court erred when it failed to extend defendant's time to submit the expert report, because the delay was caused by plaintiff's "late response to the Association's timely-served discovery demands." Ibid. We thus remanded the matter for further proceedings.
On remand, the trial court held a case management conference to address all outstanding discovery issues, including defendant's expert report. That conference generated a case management order dated July 2, 2007, which was agreed to and signed by all counsel. That order provided, in pertinent part, as follows:
1. The Association shall serve an expert report as to all issues (liability and damages) on or before July 27, 2007. Should the Association fail to serve an expert report by this date, the Association will be barred from introducing any such expert report and/or testimony at trial.
2. Delev shall serve a rebuttal expert report as to all issues (liability and damages) on or before August 31, 2007. Should Delev fail to serve an expert report by this date, Delev will be barred from introducing any such expert report and/or testimony at trial.
3. Nothing in this Order shall preclude the parties from conducting additional discovery in accordance with the Rules of Court.
4. The discovery end date is hereby extended to September 14, 2007.
5. The trial in this matter shall begin on September 24, 2007.
On July 27, 2007, the deadline established by the court, the Association's counsel wrote a letter to the trial judge requesting an extension of time to serve the expert reports. Defendant followed this informal request by filing a formal motion on August 1, 2007, (five days after the court-ordered deadline) requesting an extension of time. The motion was returnable on August 17, 2007. In a certification in support of the motion, defense counsel listed the reasons for the request:
(1) the Association's accounting expert retained at the time of the case management order could not complete the report within the court-ordered, agreed upon deadline; and (2) the Association was therefore ...