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ASHI-GTO Associates v. Irvington Pediatrics

July 15, 2010

ASHI-GTO ASSOCIATES, PLAINTIFF-RESPONDENT,
v.
IRVINGTON PEDIATRICS, P.A. AND BERNIER LAUREDAN, M.D., DEFENDANTS-APPELLANTS.
ASHI-GTO ASSOCIATES, PLAINTIFF-APPELLANT,
v.
IRVINGTON PEDIATRICS, P.A. AND BERNIER LAUREDAN, M.D., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3867-99.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 25, 2010

Before Judges Wefing, Grall and LeWinn.

These two appeals were calendared back-to-back because they arise out of the same factual complex, and the issues presented are inter-related. We consolidate them for purposes of this opinion. In A-5054-08, defendants appeal from an amended judgment entered on May 4, 2009, following a jury's verdict in plaintiff's favor.*fn1 In A-5265-08, plaintiff appeals from the trial court's post-trial denial of its application for counsel fees. After reviewing the record in light of the contentions advanced on appeal, we affirm on both appeals.

These appeals flow from a landlord-tenant dispute between the parties with respect to premises in Irvington owned by plaintiff and leased to Lauredan as office space for his medical practice. Although plaintiff also leased office space to Lauredan in Perth Amboy for an additional medical office, the appeal which is before us relates only to the Irvington lease, for which Lauredan had given a personal guarantee.

Lauredan signed a seven-year lease, commencing on November 1, 1995, and running through October 31, 2002, for office space located on the first floor of the premises. Plaintiff's principal, Clifford Lisman, D.M.D., conducted a pediatric dental practice on the second floor. In May 1999, Lauredan abandoned the premises, and plaintiff filed suit for unpaid rent. Unfortunately, for a variety of reasons, most of which are attributable to defendant, the trial on plaintiff's complaint did not commence until December 2008.*fn2

Lauredan had similarly abandoned the Perth Amboy office on the same date, and plaintiff commenced a companion suit in Middlesex County for unpaid rent for that office space. In October 2001, the parties' attorneys executed identical orders, each stating that the parties had "agreed to enter into binding arbitration to resolve the issues" and dismissing each matter with prejudice. Arbitration, however, did not proceed.

According to certifications submitted by plaintiff, the commencement of arbitration proceedings was delayed for more than a year due to defendant's insistence that the arbitrator be African-American. The extensive record before us contains nothing from Lauredan contesting that statement. Finally, in January 2003, an arbitrator was appointed. The first hearing before that arbitrator, however, did not take place until December 2003. At that point, Lauredan walked out of that proceeding, insisting that he had only agreed to arbitrate the Middlesex County dispute and had never agreed to submit the Essex County dispute to arbitration. By that time, Lauredan was represented by at least his third attorney.

In September 2005, plaintiff successfully moved to reinstate the Middlesex County litigation. The trial court's order, entered October 24, 2005, directed the parties to "endeavor to complete arbitration as soon as feasible." An arbitration hearing was to take place in January 2006, but defendant cancelled that, saying he was going to retain new counsel.

In April 2007, plaintiff filed a motion to reinstate the Essex County litigation. Plaintiff's counsel attributed the delay to his mistaken belief that the October 2005 order had reinstated both the Middlesex County and the Essex County actions. Defendant, now represented by his current attorney, opposed that motion, arguing that reinstatement was barred by the six-year statute of limitations governing contract actions, N.J.S.A. 2A:14-1, as well as by laches and estoppel. The trial court rejected these arguments and granted the reinstatement motion. Defendant thereafter filed two motions for reconsideration, both of which were denied.*fn3

Following those motions, a trial date of November 13, 2007, was set. Plaintiff's request for an adjournment until January 7, 2008, was granted but, due to an administrative error, the case was dismissed. Plaintiff's motion to reinstate the matter was granted in March 2008 and trial scheduled for June 23, 2008. Due to another administrative error, the case was again marked as dismissed, and the trial was then again rescheduled for September 2008.

In the interim, defendant's current attorney filed several discovery-related motions, including a motion in June 2008 to extend discovery, which was denied, and a motion in August to dismiss plaintiff's complaint for failure to provide discovery. This also was denied and resulted in a sanction of $300 on defendant's attorney for filing a frivolous motion. Trial finally got underway on December 10, 2008. In response to specific interrogatories, the jury rejected the defense of constructive eviction, found plaintiff had not mitigated its damages, and returned a net award in plaintiff's favor for $67,645.03.

Defendant presents the following arguments on appeal:

POINT I.

JUDGE FURNARI ERRED WHEN HE RE-INSTATED THE COMPLAINT BECAUSE IT HAD BEEN DISMISSED WITH ...


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