On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3043-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Parker and LeWinn.
Plaintiff Omar R. Chavez appeals from the trial court's order of January 19, 2007, stating that he had been timely served with a summary judgment order entered on February 4, 2005; plaintiff also appeals from the trial court's order of April 13, 2007, denying reconsideration.
The tortuous history of this case may be summarized as follows. On November 25, 2003, plaintiff filed a complaint against defendant Robert A. Hull for damages arising out of an automobile accident. Defendant filed an answer and jury trial demand. Following discovery, defendant filed a motion for summary judgment on December 8, 2004, returnable on January 7, 2005.
On December 22, 2004, plaintiff requested and received a four-week adjournment of the return date to February 4, 2005, with defendant's consent. Plaintiff did not file any opposition to the motion. On February 4, 2005, the trial court entered an order granting summary judgment to defendant, dismissing the action with prejudice and noting that the motion was unopposed.
On July 25, 2005, plaintiff inquired of his attorney as to the status of his case. Plaintiff's attorney reviewed his file and realized that it contained no follow-up documents subsequent to the adjournment of the motion date. Plaintiff's attorney contacted defense counsel who stated that summary judgment had been granted in February and the order had been forwarded to the office of plaintiff's attorney. Defense counsel thereupon faxed to plaintiff's attorney a copy of the February 4, 2005 order, as well as counsel's transmittal letter of February 9, 2005.
On August 5, 2005, plaintiff filed a motion to vacate the summary judgment order, seeking relief pursuant to Rule 4:50-1(f). The trial judge denied this motion on September 9, 2005. Plaintiff thereupon moved for reconsideration, which was denied by an order entered on October 21, 2005.
On December 5, 2005, plaintiff filed an appeal from those orders. We rendered a decision remanding the matter for a plenary hearing to determine whether service of the [February 4, 2005] order was late as claimed by plaintiff or timely. Likewise, whether plaintiff is attempting to use R. 4:50-1 as a substitute for failing to object to defendant's motion or follow up with a timely motion for reconsideration must be decided by a plenary hearing. [Chavez v. Hull, No. A-1810-05 (App. Div.
December 6, 2006) (slip op. at 6).]
Judge Paul Innes conducted a plenary hearing on January 8, 2007. Plaintiff's attorney, Martin J. Hillman, testified that his office received defendant's summary judgment motion in early December 2004; that motion was assigned to attorney Sheree Maskantz. Ms. Maskantz requested a four-week adjournment of the motion and, at some point thereafter, transferred responsibility for plaintiff's file to Hillman. When asked why he never filed any response to the motion, Hillman stated that he "could only speculate as to why not." Ms. Maskantz filed a certification in which she stated: "Inadvertently the [m]otion was misrouted in our office and we did not file opposition." Ms. Maskantz did not appear at the plenary hearing.
Lionel Kaplan, a partner in the firm, testified that defendant's motion was never calendared by the office. Kaplan also described the mail procedure at his law firm. For the last twenty years, the procedure has been, with limited exceptions, that he and the office manager open "all the... letters that come... to [the] lawyers." Kaplan then determines to whom the mail should be directed and either he or the office manager delivers the mail to the appropriate recipient. However, upon receipt of unopposed summary judgment orders, Kaplan follows a different procedure; he asks the attorney in charge of litigation, Jerem Gordon, about the order and Gordon decides which attorney should receive it.
Margaret Walker, legal secretary to defendant's attorney Robert Billmeier, testified that she had been responsible for handling the file in this matter. Ms. Walker testified that, upon the office's receipt of the order granting summary judgment, she wrote a cover letter addressed to Hillman at his law firm address, dated February 9, 2005. Ms. Walker had Billmeier sign the letter; she then photocopied the letter and "put the letter and the order in an envelope, stamped it, and then put it for... outgoing mail." Although Walker testified that she did not "specifically remember doing this specific letter," upon ...