On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2197-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and J. N. Harris.
Plaintiff Peter Christoph appeals an April 24, 2009 order of the Law Division denying the restoration of his personal injury lawsuit against defendant, the Port Authority of New York and New Jersey. Plaintiff also appeals the Law Division's ensuing order dated June 12, 2009, denying reconsideration. For the reasons stated in this opinion, we vacate those orders and remand for evidentiary proceedings on plaintiff's application for relief.
According to plaintiff's complaint, he injured his left knee as the result of slipping on snow and ice at Newark International Airport on February 11, 2006. Plaintiff alleges that defendant, which operates the airport, and its agents, allowed a dangerous condition to persist on the premises, causing him to slip and fall.
The attorney representing plaintiff during the course of the litigation ("the trial attorney") was an income partner at a law firm in Middlesex County. The record indicates that the trial attorney had fifteen years of experience in handling personal injury matters.
During the course of discovery, plaintiff answered interrogatories and was deposed. In addition, defense counsel made a demand upon plaintiff's trial attorney for copies of plaintiff's tax returns for 2003 through 2005. Defense counsel also demanded that plaintiff sign authorizations to obtain certain medical records. According to the certification that he filed in support of his restoration motion, plaintiff signed the medical authorizations and returned them to his trial attorney, but evidently the trial attorney failed to turn those signed authorizations over to defense counsel. As for the tax returns, plaintiff does recall his trial attorney asking him for them. However, plaintiff was unable to obtain copies readily because he had filed the returns with the IRS electronically. He asserts that he told his trial attorney about that difficulty.
Defendant moved under Rule 4:23-5(a)(1) to dismiss the complaint without prejudice because of plaintiff's failure to supply the requested tax returns and medical authorizations. The trial court granted that motion on December 21, 2007. When the requested discovery was still not supplied, defendant moved for dismissal of the complaint, with prejudice, under Rule 4:23-5(a)(2).
On June 20, 2008, the trial court entered an order dismissing the complaint with prejudice. The order, the form of which was prepared by defense counsel, does not reflect whether any opposition to the motion was filed. See R. 1:6-2(a) (requiring that a form of order "shall note whether the motion was opposed or unopposed"). Nor does the order reflect that plaintiff had been served by his trial attorney, as required under Rule 4:23-5(a)(2), with written notification of the pendency of the dismissal motion. In addition, there is no indication of compliance with the Rule's requirement that "[a]ppearance on the return date of the motion shall be mandatory for the attorney of the delinquent party or the delinquent pro se party." Ibid.
Several months later, the managing partners of the law firm discovered that plaintiff's trial attorney had been remiss in his handling of numerous matters for several clients, including plaintiff. According to a certification filed by one of the named partners in the firm, the trial attorney had missed critical court deadlines, had lied to clients about the status of their cases, and had neglected to respond to incoming mail and telephone calls. When confronted about these deficiencies by the named partner, the trial attorney allegedly admitted that he had been neglectful, attributing his dereliction to longstanding depression and medical problems. The trial attorney was terminated by the law firm on February 27, 2009, and he was urged to obtain treatment for his medical and mental health issues.
When these problems came to light, the law firm conducted a comprehensive internal review of the approximately 200 client files that had been formerly assigned to the trial attorney. During the course of that review, the firm discovered that plaintiff's complaint had been dismissed with prejudice. The named partner contacted plaintiff, who stated that he had been totally unaware of the fact that his complaint had been dismissed. According to plaintiff's certification, prior to the disclosure by the named partner, he "was never informed of either the defense motion to dismiss without prejudice nor the motion to dismiss with prejudice."
The law firm filed a motion to restore plaintiff's complaint, alleging exceptional circumstances under Rule 4:50-1. The restoration motion was supported by an extensive certification of the named partner, detailing the law firm's discovery of the trial attorney's widespread misconduct and the remedial steps that the firm had taken. The motion was also supported by a certification of plaintiff, attesting to his prior unawareness of the successive motions to dismiss his case. In the meantime, plaintiff forwarded a signed authorization to defense counsel to obtain plaintiff's tax returns. He also forwarded new copies of the signed medical authorizations. Nevertheless, defendant opposed the restoration motion, arguing that plaintiff's effort to produce the requested discovery was too late and that the circumstances were not sufficiently exceptional to justify vacating the final judgment.
Despite the fact that plaintiff had requested oral argument, the trial court denied the restoration motion on the papers. In a handwritten notation on its corresponding order dated April 24, 2009, the court found "no 'extraordinary circumstances' to warrant relief under R[ule] 4:50-1 and the case law." As authority for the denial, the order cited Feinsod v. Noon, 272 N.J. Super. 248 (App Div.), ...