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Pangione v. Floral Expressions

March 31, 2009


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1057-06.

Per curiam.


Submitted March 18, 2009

Before Judges Lyons and Waugh.

Plaintiff, Linda M. Pangione, appeals from an order dismissing with prejudice her complaint against defendants, Floral Expressions, Inc. and Lorraine Monroe. Plaintiff's complaint is based upon defendants' alleged violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 5-42. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

In the summer of 2004, plaintiff began working for defendants as a floral designer. On August 9, 2005, plaintiff's employment was terminated by defendants. On November 2, 2005, plaintiff filed suit against defendants alleging violations of LAD. On April 13, 2006, defendants filed their answer and discovery ensued. Due to reasons attributed to the parties and their counsel, discovery was protracted and the initial trial date, as well as four subsequent trial dates, was adjourned.

The trial date was eventually set for December 10, 2007. That date was adjourned at defendant's request with the consent of plaintiff due to the illness of the individual defendant. A new trial date was set for January 22, 2008. On January 2, 2008, however, plaintiff's mother died in Florida where she had been living with her eighty-nine year old husband. Accordingly, the January 22, 2008, trial date was adjourned to March 31, 2008, so that plaintiff could attend to her mother's estate and make arrangements to care for her father.

On March 25, 2008, plaintiff's counsel, by letter, sought an adjournment from the court.*fn1 Plaintiff's counsel advised the court that his client had gone to Florida to be with her family. His client's intention was to return to New Jersey later in January, but unfortunately his client's sister initiated legal proceedings concerning her father's mental competency, as well as who would control the estate left to him by his deceased wife. Plaintiff's counsel further advised that his client's sister was in the process of attempting to have her father judicially declared mentally incompetent and to have herself appointed as his legal guardian.

Counsel advised that plaintiff's father was eighty-nine years old and had numerous physical problems, including a heart condition, diabetes, a limited ability to walk, and care for his daily needs, and that he required care around the clock. Plaintiff's counsel informed the court that the Florida court had appointed an attorney to serve as temporary guardian for the father and had named his client to serve as caretaker due to his numerous physical problems. Accordingly, counsel asked that the March 31 trial date be adjourned and relisted for a date in the future at which time plaintiff would be able to return to New Jersey.

The adjournment request was denied and counsel appeared on Monday, March 31, 2008, before the trial court. At that time, plaintiff's counsel renewed his request for an adjournment. Counsel again relayed the factual basis for his request and sought to have the trial adjourned to September or October 2008. The trial court scheduled the case to commence on Thursday, April 3, 2008.

On April 3, 2008, counsel for plaintiff and defendant appeared and again plaintiff's counsel sought an adjournment, advising that plaintiff was unable to leave her father due to his numerous physical ailments, as well as the pending litigation in Florida.

The trial court then conducted a hearing on the record concerning the matter. The court pointed out at the outset that the case was "backlogged" in that it was two years and four months old and it was "time to go." The court then discussed the prior settlement discussions that had been had with the court, noting "my plan would be to get the case settled, but, you know, I don't know."

The trial court then explored with the parties whether the case could be dismissed without prejudice and then refiled at a later date. Defense counsel refused to consent to such a plan. Plaintiff then, once again, attempted to explain his client's problem. The trial court stated that if plaintiff wanted to commence the trial on Monday, April 7, following the intervening weekend, that could be arranged. Again, plaintiff's counsel said that, given the precarious family situation, his client could not be here that quickly. He noted that arrangements for health care would have to be made, that his client was concerned her father might pass away during her absence, or that some other problem arising from the litigation may arise in her absence.

Defense counsel objected to any delay. Plaintiff's counsel again argued that his client would not be able to be there on Monday, April 7, but asked that a ...

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