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Weiner v. Dato

September 29, 2010


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2244-07.

Per curiam.


Argued August 31, 2010

Before Judges Grall and Alvarez.

Plaintiff Irene Setcavage Weiner appeals from an order granting defendants Robert F. Dato and Dato, Sico and Sica, Attorneys at Law (collectively defendants) summary judgment on her complaint alleging legal malpractice and fraud. Plaintiff and defendant Poor Billy's Funding, LLC, settled their claims against one another. On appeal, plaintiff contends that the trial judge erred by denying her request to extend discovery and granting the attorney defendants summary judgment based on her failure to produce an expert report on liability and damages.

Plaintiff filed her complaint on February 20, 2007 and an amended complaint on May 1. She alleged that defendant Dato, in violation of the Rules of Professional Conduct, simultaneously represented her and the persons to whom she transferred her interest in several businesses.*fn1 She further alleged that Dato, knowing she was addicted to and abusing drugs at the time, acted in concert with the other parties to the transactions to defraud her of her interest in the businesses and derive a benefit.

On June 25, the case was referred to mediation pursuant to Rule 1:40. The discovery end date was August 22, 2009, and the order provided that discovery was not stayed.

Mediation commenced in September 2007. According to plaintiff's counsel, the mediator, without regard to the terms of the court's order, orally directed the parties to postpone depositions until the mediation was concluded. Defendants' attorney denies that the claim, and there is nothing in the record to support it.

In any event, discovery continued during mediation. Interrogatories propounded by defendants on June 1, 2007 were answered by plaintiff on October 31. Plaintiff served her interrogatories on defendants July 31. On November 29, the parties advised the mediator that defendants would respond by December 21. Defendants did not respond by that date.

On February 15, 2008, the parties notified the mediator that defendants would provide their answers by February 21, and that plaintiff would produce her damages analysis within five weeks, on or before March 28. Although defendants served their answers on March 12, plaintiff did not seek relief from the court and did not retain an expert to analyze her damages until May 15, about eight weeks after receiving defendants answers.

In April 2008, the parties attempted but were unable to schedule a date for defendants and Poor Billy's to depose plaintiff. At that point, defendants moved for a court order dismissing plaintiff's complaint or compelling her to execute medical authorizations, appear for deposition and produce all expert reports by June 6, 2008.

While defendants' motion to compel was pending, the parties' attorneys exchanged e-mails in an effort to schedule the plaintiff's deposition. The attorney for Poor Billy's was unavailable on May 28, 2008. Although plaintiff was available on June 2 or 9, Poor Billy's attorney advised that he "needed" a date after June 25. Defendants' attorney cautioned the others about the impending discovery end date, mentioned defendants' pending motion to dismiss or compel discovery, and stressed the need for plaintiff to execute the medical releases. He proposed scheduling plaintiff's deposition for July 2, 7 or 9. Defendants' attorney also asked the others to consent to an automatic sixty-day extension of discovery pursuant to Rule 4:24-1(c). Poor Billy's attorney indicated that he would not consent by noting that he was reserving his client's "rights with respect to the discovery extension." The parties agreed to schedule plaintiff's deposition for July 7, and a consent order acknowledging the date was prepared. The consent order does not mention the pending motion or the other relief requested therein.

On May 28, 2008, the trial judge entered an order compelling plaintiff to execute medical releases within twenty days, appear for deposition within forty-five days and submit her expert reports by June 6. Plaintiff had not opposed the motion.

Despite the May 28 order, plaintiff's deposition was not completed and her expert reports were not provided within the time permitted. Plaintiff's attorney did not notice depositions for defendants until July 31, 2008. The depositions he noticed were to be held on August 26 and 28, days after the discovery end date. On August 1, ...

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