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Capogrosso v. 30 River Court East Urban Renewal Co.

February 4, 2009


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5298-03.

Per curiam.



Argued December 15, 2008

Before Judges Lisa, Reisner and Alvarez.

This case arises out of two slip and fall accidents that occurred on January 6, 2002 and July 19, 2004*fn1 in the lobby of the Jersey City apartment building in which plaintiff, an attorney, resided. During the course of the litigation, plaintiff was represented at various times by three different law firms. After the court permitted plaintiff's third attorney to withdraw in November 2006, a new peremptory trial date was set for April 2007. Plaintiff appeared at that time, without counsel, and refused to proceed. The court denied her adjournment request and dismissed her claims with prejudice.

Plaintiff appeals from various orders entered throughout the course of the litigation. Included among them, are the order allowing her counsel to withdraw and the order dismissing her case with prejudice. We are satisfied that in entering those two orders there was no mistaken exercise of discretion, and we therefore affirm those orders. Because of that disposition, it is unnecessary for us to address plaintiff's arguments regarding the other orders appealed from.

On October 7, 2003, the law firm of Gainey & McKenna filed a complaint on plaintiff's behalf alleging personal injuries from a fall on January 6, 2002. By leave granted, plaintiff filed an amended complaint on July 29, 2005, alleging that she was injured in a second fall, on July 19, 2004.

On December 8, 2004, plaintiff was deposed and testified that she had not been involved in any accidents after her January 6, 2002 fall. That answer, of course, was false.

In August 2005, plaintiff changed attorneys. She retained the services of Jonathan Koles of Koles, Burke & Bustillo. On February 28, 2006, the case was assigned to Judge Antonin for trial.*fn2

On April 12, 2006, the case came before Judge Messano. Koles moved to be relieved as counsel, certifying that when he questioned plaintiff about why she testified at her December 2004 deposition that she did not have any accident or injuries after January 2002, she gave contradictory explanations. Initially, plaintiff said she did not recall her deposition testimony. She also explained that she misunderstood the question. She also said her then attorney advised her to deny the subsequent slip and fall and she intended to tell the jury she denied the subsequent accident "on advice of counsel." Finally, she said she would "make something up" that the jury would believe and for Koles not to worry about the discrepancy. Koles determined that he was ethically required to move to be relieved as counsel, as plaintiff intended to perjure herself in her trial testimony. Judge Messano granted the motion. The order allowing Koles to be relieved as counsel also adjourned the trial until May 15, 2006 and provided that if new counsel did not appear by May 12, 2006, plaintiff would be deemed pro se.

On April 28, 2006, plaintiff met with John W. Baldante of Levy, Angstreich, Finney, Baldante, Rubenstein & Coren, P.C. (the Levy firm), and signed a retainer agreement. As a result of a conference call between the court and counsel for all parties on May 2, 2006, the May 15, 2006 trial date was adjourned. On May 10, 2006, Baldante informed plaintiff that he chose not to represent her. He applied to the court on May 22, 2006, asking to be allowed to decline representation or, alternatively, to be allowed to withdraw as counsel. Plaintiff opposed the motion.

On July 24, 2006, Judge Messano denied the Levy firm's request to decline representation or to withdraw as counsel. The judge noted that plaintiff and Baldante had provided differing accounts of what transpired between them. Although Baldante contended that he made clear to plaintiff his limited retention for file review, plaintiff insisted that no such limitation was stated to her. The retainer agreement did not contain such a limitation. The judge therefore determined that the Levy firm did not provide sufficient grounds for relieving counsel under RPC 1.16.

The Levy firm moved for reconsideration. Judge Messano denied the motion in an order of August 18, 2006.

The trial had been scheduled for September 5, 2006, but was rescheduled to November 28, 2006. On that date, plaintiff did not appear in court. (She was apparently on vacation and would not return until the next day.) On November 28, 2006, R. Erick Chizmar of the Levy firm appeared and requested the opportunity to meet in camera and out of the presence of defense counsel with Assignment Judge Gallipoli. That request was granted, and the discussion occurred on the record. Chizmar explained that his firm should be allowed to withdraw because if forced to proceed it would be suborning perjury. He also advised that plaintiff insisted in the last several weeks that his firm subpoena Judge Gallipoli to testify as a trial witness, apparently because of some remarks that were entered by the court in a defamation case. The firm did not agree that Judge Gallipoli should be subpoenaed. Chizmar explained that plaintiff threatened to file ethics charges if the firm did not comply with her demand and, if she lost the trial, she would sue them for legal malpractice.

Judge Gallipoli said he would not decide the issue without plaintiff being present. He adjourned the trial until the next day, and directed counsel to file further certifications in support of their application. He noted that this recent conduct by plaintiff might well provide a basis for revisiting the issue of whether the Levy firm should be relieved. Chizmar filed a motion for further reconsideration, supported by a certification stating that the firm would be required to perpetrate a fraud if required to continue representing plaintiff, as she had failed to mention her second accident during her sworn deposition or to multiple medical providers, yet indicated to counsel that she could explain these inconsistencies to a jury. The certification further detailed the threats as Chizmar had explained to Judge Gallipoli.

On November 29, 2006, plaintiff appeared in court. Judge Gallipoli asked plaintiff to read the moving papers submitted by the Levy firm. She refused to do so and requested a sixty-day adjournment. The judge persisted that, within the next thirty minutes, she should read the papers and she would then be allowed to respond. Plaintiff persisted in her refusal to read the papers or to address the issue in court that day.

Judge Gallipoli granted the Levy firm's motion to be relieved as counsel and assigned a new trial date of April 9, 2007. He made perfectly clear to plaintiff that this was a peremptory trial listing and she would be required to proceed on that date either with new counsel or pro se. He stated:

I'm going to give this case a trial date, which is going to be the first Monday after Easter Sunday. You will proceed on that trial date as your own attorney or with a new attorney. If you get a new attorney, that attorney has to be ready to proceed with no reason to be excused from representing you. If the attorney makes a -- makes an ...

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