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Tom L. Molnar, Executor For the Estate of Alex S. Molnar v. Llmd Associates

April 8, 2011

TOM L. MOLNAR, EXECUTOR FOR THE ESTATE OF ALEX S. MOLNAR, PLAINTIFF-APPELLANT,
v.
LLMD ASSOCIATES, LLC D/B/A WATER'S EDGE HEALTH CARE & REHABILITATION CENTER, WATER'S EDGE, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1432-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 2, 2011

Before Judges Sapp-Peterson and Simonelli.

In this malpractice action, plaintiff Tom Molnar appeals from three Law Division orders: (1) the February 18, 2010 order granting summary judgment to defendant LLMD Associates, LLC d/b/a Water's Edge Health Care & Rehabilitation Center (Water's Edge) and dismissing the complaint with prejudice; (2) the February 24, 2010 order denying his motion to extend discovery; and (3) the April 23, 2010 order denying his motion for reconsideration of the February 18 and 24, 2010 orders. We affirm.

Plaintiff, through counsel, filed a complaint on June 8, 2007, alleging that negligent treatment of his father at Waters Edge from June to September 2005 ultimately resulted in the man's untimely death. Defendant filed an answer on August 10, 2007. The matter was assigned to Track III, which has a 450-day discovery period. During the next two years, counsel continued representing plaintiff and the parties exchanged written discovery and conducted depositions. On plaintiff's motion,*fn1 the court entered an order on April 3, 2009, extending discovery to August 7, 2009.

On April 14, 2009, plaintiff's counsel filed a motion to be relieved. On May 1, 2009, the court entered an order granting the motion and ordering plaintiff to notify the court of his new counsel no later than May 31, 2009. Plaintiff did not comply with the May 31, 2009 order, nor did he pursue further discovery or serve an expert report.

After the expiration of the August 7, 2009 discovery end date, defendants filed a summary judgment motion based on plaintiff's failure to serve an expert report. In response, plaintiff filed a pro se motion to extend discovery seeking additional time because of his alleged difficulty retaining new counsel. In order to accommodate plaintiff, Judge Hurd entered two orders: one on September 3, 2009, extending discovery to January 4, 2010, and the second on September 10, 2009, denying defendants' summary judgment motion without prejudice.

Plaintiff did not pursue discovery or serve an expert report during the second extension period. After expiration of the second discovery end date, defendants filed a summary judgment motion based on plaintiff's failure to serve an expert report. The motion was returnable before Judge Hurd on February 5, 2010. Plaintiff did not oppose the motion; instead, he filed another pro se motion to extend discovery, returnable before Judge Innes on February 5, 2010.

Judge Innes notified the parties that he would carry plaintiff's motion to, and conduct a case management conference on, February 8, 2010. Judge Hurd subsequently adjourned defendants' summary judgment motion pending disposition of the motion to extend discovery.

Plaintiff failed to appear at the case management conference. As a result, Judge Innes denied plaintiff's motion to extend discovery concluding he had "ample and adequate notice" of the conference but failed to appear, and "[t]his case has been the subject of other problems with regard to compliance by the plaintiff." On February 24, 2010, the judge entered an order memorializing his decision.

In the meantime, Judge Hurd entered an order on February 18, 2010, granting defendant's unopposed summary judgment motion and dismissing the complaint with prejudice. The judge concluded, in part, that plaintiff failed to provide expert evidence setting forth the appropriate standard of care or deviation, and there was "no indication . . . that plaintiff intends to present the testimony of an expert at anytime soon."

Plaintiff filed a pro se motion for reconsideration of the denial of his motion to extend discovery. Judge Hurd entered an order on March 8, 2010,*fn2 denying the motion and concluding that other than plaintiff's recounting of the number of firms who have declined to represent him in this matter, there is little more in plaintiff's papers, other than repeated assertions that plaintiff has been a victim of defense counsel's continual and intentional deception.

Judge Innes, no doubt, took into account all that was contained in both parties' papers prior to deciding the motion. Assuming that this is the information that plaintiff intended to present on the papers, it would have been ...


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