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Eastern Concrete Materials, Inc. v. Colonial Surety Co.

October 26, 2009

EASTERN CONCRETE MATERIALS, INC., PLAINTIFF-APPELLANT,
v.
COLONIAL SURETY COMPANY, DEFENDANT-RESPONDENT.
EASTERN CONCRETE MATERIALS, INC., PLAINTIFF-APPELLANT,
v.
A. JULIANO & SONS, INC., A JULIANO & SON CONTRACTORS, INC., AND ANTHONY JULIANO, JR., DEFENDANTS, AND COLONIAL SURETY COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3194-08 (A-3186-08T1) and Bergen County, Docket No. L-846-08 (A-4356-08T1).

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2009

Before Judges Yannotti and Chambers.

In A-4356-08, plaintiff Eastern Concrete Materials, Inc. appeals from an order entered by the Law Division, Bergen County, on August 15, 2008, dismissing its complaint against defendant Colonial Surety Company (Colonial); an order entered on July 18, 2008, denying plaintiff's motion to suppress pursuant to Rule 4:23-5(a); and an order entered on August 29, 2008, denying plaintiff's motion for reconsideration. In A-3186-08, plaintiff appeals from an order entered on January 23, 2009, by the Law Division, Union County, dismissing a complaint filed by plaintiff against Colonial in which plaintiff asserted the same claim that plaintiff asserted against Colonial in the Bergen County case.

We address both appeals in this opinion. For the reasons that follow, in A-4356-08, we reverse the orders under review and remand the matter to the Law Division, Bergen County, for further proceedings. In A-3186-08, we dismiss the appeal as moot.

I.

We briefly summarize the relevant facts and procedural history of these two cases.

A. Plaintiff's Bergen County Action

Plaintiff entered into an agreement with defendant A. Juliano & Sons, Inc. (Juliano) to provide materials for work that Juliano was going to perform for the County of Union (County) at the Peter J. Esposito Park in Clark, New Jersey. Anthony Juliano, Jr. (Anthony) provided plaintiff with a personal guarantee of Juliano's obligations under the agreement.

Plaintiff allegedly furnished the materials for the project and billed Juliano $275,289.98; however, plaintiff was not paid. Consequently, on January 31, 2008, plaintiff filed an action in the Law Division, Bergen County, against Juliano, A. Juliano & Son Contractors, Inc. (AJS) and Anthony seeking the amounts allegedly due, plus interest and certain collection costs.

On March 13, 2008, plaintiff filed an amended complaint, naming Colonial as an additional defendant, seeking recovery of the amounts due from Juliano under the terms of a surety bond that Colonial issued to Juliano for the project. On March 20, 2008, Colonial filed an answer denying liability and asserting a variety of affirmative defenses.

B. Plaintiff's Discovery Requests and Related Motions

On March 26, 2008, plaintiff issued to defendants demands for the production of documents and answers to interrogatories. Plaintiff also provided defendants with notices demanding that certain witnesses be produced for oral depositions, which were scheduled for May 8, 2008. By letter dated April 24, 2008, Colonial's counsel advised that the May 8, 2008 date was "not convenient" because of certain "previously scheduled matters." He asked plaintiff's attorney to reschedule the depositions.

Plaintiff's counsel rescheduled the depositions for June 19, 2008; however, by letters dated June 18, 2008, counsel for the Julianos advised that Anthony would not be available and Colonial's attorney said that his witness had developed "an emergency as a case in Buffalo [was] proceeding to trial."

On June 18, 2008, plaintiff filed a motion to suppress defendants' answers without prejudice pursuant to Rule 4:23-5(a) for failure to provide discovery. Colonial opposed the motion. Colonial also provided a response to plaintiff's demand for the production of documents and interrogatories. In his certification dated July 9, 2008, Colonial's counsel stated that Nunziata was prepared to be deposed on a mutually convenient date.

Plaintiff's attorney submitted a reply certification dated July 14, 2008, in which he stated that Colonial's answers to interrogatories were deficient because Colonial's counsel had provided the answers, rather than an officer or agent for Colonial. Counsel also stated that Colonial's answers were "evasive non-answers" and the Julianos had not responded to the discovery requests. Counsel ...


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