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Lisanti v. Amper

February 26, 2009

JOSEPH M. LISANTI, JR., ROSEMARIE LISANTI, LISANTI ENTERPRISES, L.L.C., LISANTI REALTY CORP., LISANTI REALTY OF ARIZONA, INC., TEXAS TRUCKING CORP., JL TRUCKING, L.L.C., ARIZONA FREIGHT HAULERS, INC., AND NEW JERSEY TRUCKING CORP., PLAINTIFFS-APPELLANTS,
v.
AMPER, POLITZINER & MATTIA, P.C., ALLEN D. WILEN, CPA, AND ROBERT KEANE, CPA, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3184-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 4, 2009

Before Judges Lyons and Waugh.

The underlying complaint in this litigation is for accounting malpractice. The issue on appeal, however, is whether the trial court correctly dismissed plaintiffs' complaint without prejudice after barring them from presenting expert testimony at trial because they failed to serve a timely expert report. Because we find the trial court properly acted within its discretion in enforcing its deadlines for serving the expert report, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Plaintiffs, Joseph and Rosemarie Lisanti, brother and sister, own and operate several companies, seven of which are also plaintiffs in this case. The Lisantis' former counsel, Marc F. Desiderio and Loel Seitel, began representing them in March 2003, during the course of bankruptcy actions filed by several corporate entities owned by the Lisantis. Both Desiderio and Seitel represented the Lisantis in those matters and the related adversary proceedings through February 2007.

On November 19, 2004, Desiderio and Seitel filed suit on plaintiffs' behalf against defendants Amper, Politziner & Mattio, P.C., an accounting firm, and Allen Wilen and Robert Keane, accountants at that firm, alleging malpractice.

Plaintiffs did not provide a track assignment notice in their record on appeal. However, it is assumed that the court assigned the complaint to Track III because it was a professional negligence claim. R. 4:24-1(a). As such, plaintiffs were entitled to 450 days of discovery. The discovery period on plaintiffs' claim was set to close on June 25, 2006.

In January 2006, a federal grand jury sitting in Florida indicted Desiderio and Seitel for money laundering, obstruction of justice and "causing a person to making [sic] a false statement to a federal law enforcement official."*fn1

On June 5, 2006, plaintiffs filed a stipulation extending time for discovery pursuant to Rule 4:24-1(c).*fn2 Defendants consented to extend the discovery period to August 24, 2006.

On July 13, 2006, defendants filed a motion seeking an order setting dates for the service of expert reports. On August 7, 2006, the trial court entered an order compelling plaintiffs to serve their expert reports "on or before September 15, 2006," and requiring defendants to serve their expert reports no later than October 15, 2006. The trial court also extended the discovery deadline to October 24, 2006, and ordered plaintiffs to conduct their depositions of defendants "within the month of September, upon proper notice by Rule."

Plaintiffs served notices for the depositions of defendants Keane and Wilen on August 14, 2006. The parties scheduled Keane's deposition for September 13, 2006, but, on September 11, 2006, defendants advised plaintiffs that Keane could not appear as scheduled. Defendants requested that the deposition be rescheduled for the weeks of either September 18 or September 25, 2006. Plaintiffs began taking Wilen's deposition on September 15, 2006. At that time, the parties agreed that both Wilen and Keane would be available for depositions the week of September 18, 2006.

The September 15, 2006, deadline to serve the expert report passed without plaintiffs complying with the trial court's order. Plaintiffs did not file a motion requesting more time to serve the report.

On September 19, 2006, plaintiffs' counsel, Seitel, advised defendants that that he was not available during the weeks of September 18 or September 25 for Keane's deposition. Defendants' counsel responded by letter, advising Seitel that the trial court's August 7, 2006, order required that depositions be completed by the end of September. Seital did not respond. On October 3, 2006, defendants notified Seitel by letter that Wilen was available for the conclusion of his deposition on October 18, 2003. Again, plaintiffs' ...


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