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Atlantic Souvenirs, Vanina's v. South Jersey Gas Company

February 1, 2011

ATLANTIC SOUVENIRS, VANINA'S ICE CREAM, COLLECTOR'S WORLD, LEELA IMPORTS/NEXT GENERATION, CITY OF SOUVENIRS, AND MARIO'S PIZZA, PLAINTIFFS-APPELLANTS,
v.
SOUTH JERSEY GAS COMPANY, DEFENDANT, AND KIELY CONSTRUCTION COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. DC-024936-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 16, 2010

Before Judges Carchman and Waugh.

Plaintiffs Atlantic Souvenirs, Vanina's Ice Cream, Collector's World, Leela's Imports/Next Generation, City of Souvenirs, and Mario's Pizza (collectively Atlantic), businesses located or previously located on the 1500 block of the Boardwalk in Atlantic City, appeal the order of the Special Civil Part awarding sanctions in the amount of $2,377.50 to defendants South Jersey Gas Company (South Jersey) and J.F. Kiely Construction Company (Kiely). We affirm.

I.

We discern the following facts and procedural history from the record. On December 24, 2008, Atlantic filed a complaint in the Special Civil Part in Monmouth County against South Jersey and Kiely, seeking damages for economic loss resulting from defendants' nearby construction activities on the Atlantic City Boardwalk. Kiely filed an answer and a cross-claim for contribution and indemnification against South Jersey.

Kiely filed a notice of motion for summary judgment on March 24, 2009. South Jersey filed a cross-motion for summary judgment, seeking indemnification from Kiely. Atlantic opposed Kiely's motion.

Counsel appeared for the scheduled trial date on April 13, 2009. However, Atlantic's designated trial counsel, Gary S. Newman, did not appear, sending two associates to represent his clients in his absence. The trial judge referred the case to mandatory mediation. After the parties failed to reach a settlement, counsel reported back to the judge.

The two associates appearing for Atlantic were unprepared for trial and did not have their clients in court. They requested an adjournment. One associate explained that Newman was out of state and had expected the matter to settle. Kiely and South Jersey opposed the adjournment request, and sought dismissal of the complaint based on Atlantic's inability to proceed. The trial judge then contacted Newman by telephone and discussed Atlantic's request for an adjournment on the record.*fn1

Newman explained that he was observing Passover with his family and had advised his clients not to appear for the April 13, 2009 trial date, based on his good faith belief that the matter would settle during mediation. The judge agreed to adjourn the trial, but only on the condition that Newman would pay defense counsels' fees and expenses for appearing that day.

The trial was adjourned to April 27, 2009. On April 22, Kiely and South Jersey filed motions for attorneys' fees and sanctions pursuant to Rule 1:2-4. South Jersey sought reimbursement for fees, travel time and expenses in the amount of $1,345.10. Kiely sought similar reimbursement in the amount of $1,034.40.

Atlantic opposed both motions. Included in the opposition was a certification by Newman in which he stated that he was out of state for Passover on the trial date. He explained that he did not request an adjournment prior to trial because one of the defendants had expressed an interest in settling the case. He further stated that defendant was to contact his associate regarding settlement. Newman did not, however, specify which defendant expressed an interest in settling. However, according to Newman, that "defendant" did not follow through on contacting his associate regarding settlement.

Despite the fact that his firm had not been contacted by either defendant to discuss settlement prior to trial, Newman decided not to have his clients appear, "hoping the case would resolve" because "[he] had a good faith belief there was a desire on the part of Defendants to resolve the matter." Newman also argued that, in any event, defendants were only entitled to reimbursement for ...


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