On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-5545-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sapp-Peterson.
Plaintiff Kathleen Cairoli appeals from a trial court order dated September 12, 2008, denying her motion to restore her medical malpractice complaint against defendants Dr. Bruce Kaufman and River Drive Surgery Laser Center (River Drive). We reverse and remand for further proceedings consistent with this opinion.
This is what happened. Plaintiff filed a complaint on July 25, 2007, alleging that Dr. Kaufman committed malpractice in administering anesthesia to plaintiff during cataract surgery. Plaintiff filed a timely affidavit of merit, but failed to provide timely answers to either defendant's uniform interrogatories. Accordingly, on defendants' motions pursuant to Rule 4:23-5(a)(1), plaintiff's complaint was dismissed without prejudice, by orders dated April 11, 2008 as to River Drive and February 26, 2008 as to Kaufman.
On June 2, 2008, Kaufman filed a motion to dismiss with prejudice, returnable June 20, but withdrew the motion after plaintiff served Kaufman with the interrogatory answers. Apparently due to the severe illness of a paralegal in the offices of plaintiff's attorney, and the attorney's failure to properly supervise the paralegal, copies of the interrogatory answers were never served on River Drive.*fn1 Plaintiff's attorney also failed to file a motion to restore the complaint against Kaufman, even though Kaufman had actually received the necessary discovery.
On or about July 23, 2008, River Drive filed a motion returnable August 15, seeking dismissal of the complaint with prejudice due to plaintiff's continuing failure to provide interrogatory answers. By motion dated August 6, 2008, Kaufman cross-moved for an order dismissing the complaint with prejudice. In his certification, Kaufman's attorney admitted receiving interrogatory answers; instead he based his motion on "plaintiff's failure to adhere to the strict requirements of R. 4:23-5(a)(2)" in that counsel had not filed a motion to vacate the prior order of dismissal without prejudice.
On August 8, 2008, plaintiff's counsel sent a letter to River Drive's counsel enclosing interrogatory answers dated June 19, 2008, and explaining that due to problems with a paralegal, the answers were inadvertently only served on counsel for Kaufman. He also explained that he was not previously aware of River Drive's with-prejudice dismissal motion, because a secretary had mis-filed it. The letter copied Kaufman's attorney, promised to promptly file a motion to restore the complaint, and asked both counsel to withdraw their dismissal motions. Both defense counsel declined to do so.
By letter faxed to the court and all counsel on August 14, 2008, plaintiff's counsel requested an adjournment of the dismissal motions. The letter represented to the court that interrogatory answers had been served on both defendants and that plaintiff was about to file a motion to restore the complaint:
We request an... adjournment as we are in the process of filing a Cross Motion to restore this matter to the active trial calendar. Plaintiff's answers to Interrogatories have been furnished to both counsel. The restoration of this matter within the time period was an oversight as the paralegal who has been working on this file has been suffering from an illness which prevented her from carefully supervising the work of her secretarial staff. By letter of August 8, 2008 to defense counsel, we requested that they withdraw their motions, however, the same has not been done at this point.
By letter dated August 15, 2008, and faxed to the court and counsel, Kaufman's attorney opposed the adjournment request.
By separate orders each dated August 15, 2008, the court granted as "unopposed" Kaufman's and River Drive's motions to dismiss the complaint with prejudice. Neither order recited compliance with Rule 4:23-5(a)(2), which requires that the attorney for the defaulting party must "not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served" with the order of dismissal without prejudice and with notice of the pending motion to dismiss with prejudice. Ibid. Nor did the orders recite compliance with the Rule's requirement that "[a]ppearance on the return date of the motion shall be mandatory for the attorney for the delinquent party." Ibid. See also R. ...