October 27, 2010
ASSEM A. ABULKHAIR, PLAINTIFF-APPELLANT,
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6848-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2010
Before Judges Gilroy and Ashrafi.
Plaintiff Assem Abulkhair appeals from the November 20, 2009 order denying his motion for reconsideration of the October 9, 2009 order that denied his motion seeking to enforce litigant's rights against respondents Anthony Amato, D.C., and Alliance Medical Group, P.C.*fn1 We affirm.
On October 13, 1999, plaintiff suffered personal injuries in an automobile accident. At the time of the accident, plaintiff was insured by Liberty Mutual Insurance Company for personal injury protection (PIP) benefits. Respondent Anthony Amato treated plaintiff for injuries suffered in the accident on nine intermittent dates between October 14 and December 8, 1999.*fn2
During the course of treatment, x-rays were taken of plaintiff on October 14, 1999. Amato retained the x-rays as part of plaintiff's medical records.
Plaintiff commenced suit against Liberty Mutual seeking PIP benefits. In January 2009, after Amato failed to respond to plaintiff's demand that Amato turn over the x-rays for plaintiff's use in his PIP action, plaintiff served Amato with a subpoena directing that he produce the x-rays at the Essex County Courthouse on February 10, 2009. Amato failed to comply.
On May 5, 2009, plaintiff filed a motion seeking to enforce litigant's rights against Amato for failure to comply with the subpoena.*fn3 Amato opposed the motion certifying that he no longer possessed plaintiff's medical records and x-rays, having previously disposed of them because "[t]he State of New Jersey, does not require chiropractors, to hold records more than seven (7) years, and these records were disposed of, in a timely fashion, since they were over seven (7) years from the date of the accident, and the date of last treatment." On June 26, 2009, the court entered an order granting plaintiff's motion.
On July 20, 2009, plaintiff served a copy of the June 26 order on Amato. Because Amato failed to comply with the June 26 order, plaintiff filed a motion seeking to hold Amato in contempt of court.*fn4 Amato filed an undated certification in opposition to the motion, again certifying that his office does not possess plaintiff's x-rays for the reasons stated in his prior certification. Amato further explained that he had not treated plaintiff since December 8, 1999, nor had plaintiff made a request for any of his medical records or x-rays during seven years from the date of last treatment. Contrary to Amato's assertion, plaintiff contended that he had twice requested Amato to release his x-rays to him during the seven years following his last treatment, once on May 27, 2001, and once approximately one and one-half years prior. On October 9, 2009, the court entered an order denying plaintiff's motion.
On October 22, 2009, plaintiff filed a motion for reconsideration of the October 9, 2009 order, contending that he had not been served with a copy of Amato's opposing certification until it was presented to him by the trial court's law clerk after oral argument on October 9, 2009. The notice of motion contained a statement that plaintiff did not request oral argument on the motion "unless it is opposed." Amato opposed the motion asserting that plaintiff had not raised any facts in support of his motion that were not previously considered by the court on October 9, 2009. On November 20, 2009, the court entered an order, without oral argument, denying the motion.
On appeal, plaintiff argues that the trial court "erred and abused its discretion by its failure to abide by the laws and rules intended to enforce litigant's rights to compel the medical provider to produce Abulkhair's subpoenaed x-rays." Plaintiff also contends that the court erred in denying his request for oral argument on the motion for reconsideration.
At oral argument, plaintiff indicated that it was his intent when he filed the notice of appeal to appeal not only from the November 20, 2009 order, but also from the October 9, 2009 order. We decline to consider an appeal from the October 2009 order because plaintiff failed to properly prosecute such an appeal. The order indicates on its face that plaintiff's motion to enforce litigant's rights was "[d]enied [for reasons] as stated on the record." Accordingly, plaintiff was required to provide us with the transcript of the trial court's October 9, 2009 oral decision. R. 2:5-4; R. 2:6-1(a). His failure to do so impedes us from properly reviewing the court's reasons in denying the motion. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:6-1 (2011) ("[T]he Appellate Court may decline to address issues requiring review of those parts of the trial record not included in the appendix.").
What is more, although plaintiff challenges the veracity of Amato's statement that plaintiff had not requested the return of his x-rays during seven years following the end of treatment, that statement does not provide a ground to hold Amato in contempt under Rule 1:10-3. Relief may be granted under that rule only on a finding that the defaulting party has the capacity to comply with the court's order, but fails to do so without justification. Pressler & Verniero, Current N.J. Court Rules, comment 4.3 on R. 1:10-3 (2011). Here, Amato no longer possesses plaintiff's x-rays, having disposed of them pursuant to Amato's understanding of State regulations governing medical record retention for chiropractors. Accordingly, Amato cannot comply with the provisions of the June 26, 2009 order.
We are also satisfied that the trial court's failure to provide plaintiff with oral argument on his motion for reconsideration does not warrant reversal. Plaintiff conditioned his request for oral argument on Amato opposing the motion. Although Amato filed a certification in opposition to the motion, the court decided the motion without oral argument, determining that plaintiff "has failed to demonstrate and provide any new information pursuant to [Rule] 4:49-2." While plaintiff may have been entitled to oral argument upon Amato filing his opposing certification, under the circumstances, we find no prejudice in the court deciding the motion on the submissions of the parties. Finderne Heights Condo. Ass'n v. Rabinowitz, 390 N.J. Super. 154, 165-66 (App. Div. 2007).