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Capogrosso v. Ruane & Zuber

April 13, 2009

ELEANOR CAPOGROSSO, PLAINTIFF-APPELLANT,
v.
RUANE & ZUBER, L.L.C., EDWARD P. RUANE, AND JEFFREY M. ZUBER, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3401-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically March 26, 2009

Before Judges Yannotti and LeWinn.

Plaintiff Eleanor Capogrosso appeals from an order entered on March 18, 2008, which dismissed her complaint without prejudice, required defendants to serve and file a certification of services for the time devoted to the litigation by March 28, 2008, and provided that, if plaintiff failed to pay defendants the amount shown in defendants' certification within forty-five days, her complaint would be dismissed with prejudice. Plaintiff also appeals from an order entered on April 25, 2008, which denied her motion for reconsideration. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.

This appeal arises from the following facts. On July 10, 2006, plaintiff filed a complaint in the Law Division seeking the partial return of a $7,500 retainer she had provided to defendants in connection with a lawsuit in which defendants had agreed to represent her. The matter was first scheduled for trial on December 5, 2007, but was adjourned at the request of defendants, with plaintiff's consent. The court re-scheduled the trial for March 4, 2008.

On March 4, 2008, plaintiff's attorney phoned the court and asked for an adjournment because plaintiff was ill. The court adjourned the matter until March 5, 2008. On that date, plaintiff's counsel informed the court that plaintiff was still ill. The court re-scheduled the matter for trial on March 18, 2008. On that date, plaintiff's attorney appeared and requested that the court enter an order dismissing the complaint without prejudice.

In support of the application, counsel provided the court with a hand-written note in which plaintiff stated that she could not appear for two reasons. Plaintiff stated that it was physically impossible for her to prepare for trial. She also stated that she had to be in court in Queens, New York, representing a client in other matters.

The trial court noted that there was an inconsistency in plaintiff's assertion that it was "physically impossible" for her to prepare for trial and her statement that she had to appear in another court on the scheduled trial date. Plaintiff's counsel stated that plaintiff's illness had "incapacitated her" for several weeks and she had been "overwhelmed by her own work, in her own office."

Defendants opposed plaintiff's request and sought the dismissal of the complaint with prejudice. Defendants argued that dismissal of plaintiff's complaint without prejudice was "completely improper" because it appeared she was seeking to delay the trial in order to re-draft her complaint and "start discovery all over again." Plaintiff's counsel noted that the court could impose conditions for the dismissal of the complaint without prejudice but he urged the court not to impose any such conditions.

The trial court granted plaintiff's application, but ordered that the matter would be dismissed with prejudice unless plaintiff paid all of the counsel fees and costs incurred by defendants in connection with the litigation. The court stated that this would address defendants' concern "about the time that's been expended in connection with the litigation, and the need to redo that if the case is refiled."

The court entered an order on March 18, 2008, which memorialized its determination. The order required defendants to file a certification stating all of the fees and expenses incurred in this litigation by March 28, 2008. The order further provided that the matter would be dismissed with prejudice if plaintiff failed to pay the amounts set forth in the certification within forty-five days.

On March 24, 2008, defendants submitted an affidavit of services by Edward P. Ruane (Ruane), in which Ruane indicated that 48.74 hours had been devoted to the representation of defendants in the matter. Ruane stated that his hourly rate is $275. He also stated that defendants had incurred expenses in the amount of $255.87. He sought reimbursement of a total of $13,659.37 in fees and costs incurred in the case.

Plaintiff did not pay the amounts set forth in Ruane's affidavit. On April 3, 2008, plaintiff filed a motion for reconsideration. In support of that motion, plaintiff ...


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