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Castillo v. Rosenbaum

October 27, 2010

GLENDA CASTILLO, PLAINTIFF-APPELLANT,
v.
NECHAMA ROSENBAUM, JOSEPH I. ROSENBAUM, DAVID JIMENEZ AND LUIS CASTILLO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1549-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 14, 2010

Before Judges R. B. Coleman and J. N. Harris.

Plaintiff Glenda Castillo was a passenger in an automobile that was involved in a two-vehicle accident on July 12, 2005. After a jury trial in which she was represented by counsel, the unanimous verdict determined that plaintiff had failed to prove by a preponderance of the evidence that she had suffered an injury proximately caused by the accident. We affirm.

On appeal, the now pro se plaintiff's overarching theme is, in essence, that the verdict was against the weight of the evidence and a new trial is warranted. This contention was waived, however, when she failed to file a motion for a new trial. R. 2:10-1. Additionally, plaintiff suggests that she was severely prejudiced and is entitled to a do-over because of:

(1) defense counsel's alleged hostile behavior during the course of plaintiff's pre-trial deposition; (2) plaintiff's alleged confusion about settlement offers; (3) the trial court's denial of defense motions for a mistrial; (4) alleged jury misconduct by a sleeping juror and the panel not taking the case seriously; and (5) the trial court's putative error of permitting a photograph to be admitted into evidence and refusing to admit an independent medical examination. We have examined all of plaintiff's contentions, and conclude that they are all without merit, and do not warrant discussion beyond the following comments. R. 2:11-3(e)(1)(E).

I.

While attempting to merge her motor vehicle from one lane into another on Route 88 in Lakewood, defendant Nechama Rosenbaum's*fn1 vehicle came into contact with the automobile being operated by plaintiff's brother, defendant David Jimenez. As a result of the accident, plaintiff alleged that she suffered injuries to her neck, back, hand, and arm. In order to recover damages for her supposed causally-related injuries, plaintiff commenced this personal injury action.

The case went to trial in January 2010. During the first two days, four witnesses testified in the presence of the jury, and two liability experts -- Dr. Charles Rizzo for plaintiff, and Dr. Robert Bachman for defendants -- testified by means of videograph. After plaintiff rested, defendants conceded liability for the happening of the incident, but reserved the right to contest whether the accident proximately caused plaintiff's claimed injuries.

With the attorneys' summations completed at the end of the second trial day, Judge Craig L. Wellerson began his instructions to the jury early the next morning, which was a Friday. After deliberating for approximately one hour, the jury returned its verdict well before midday, finding that plaintiff had not suffered an injury proximately caused by the accident of July 12, 2005. No post trial motions were filed, and this appeal followed.

II.

A.

To the extent plaintiff advocates that the verdict was against the weight of the evidence, we reject such contention as untenable under our jurisprudence. We perceive no interest of justice warranting a relaxation of Rule 2:10-1 in this case. "In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1; Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009); Genre-Hammer Assocs. v. Sebago, 385 N.J. Super. 291, 295 (App. Div.), certif. denied, 188 N.J. 219 (2006). The rule should be strictly enforced, ...


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