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Anthony Lemma and Gail Grinkevich v. Pennwood Racing

May 11, 2011

ANTHONY LEMMA AND GAIL GRINKEVICH, PLAINTIFFS-APPELLANTS,
v.
PENNWOOD RACING, STATE OF NEW JERSEY, DIVISION OF N.J. RACING COMMISSION, DEFENDANTS-RESPONDENTS, AND PATRICK BERRY, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5564-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 22, 2011

Before Judges Parrillo, Yannotti and Skillman.

Plaintiffs Anthony Lemma (Lemma) and Gail Grinkevich (Grinkevich) appeal from orders entered by the Law Division dismissing their claims against defendants Pennwood Racing (Pennwood), and the State of New Jersey, Division of Racing Commission (State). We affirm.

I.

On November 23, 2005, Lemma was the driver of a horse named "Cocoa Aulait," which was entered in the eleventh race at Freehold Raceway (Raceway). Lemma alleges that he had finished the post-parade warm up and was "scoring down" his horse when another driver, defendant Patrick Berry (Berry), entered the racetrack, lost control of his horse and collided with Lemma's cart and horse, causing Lemma to sustain severe and permanent personal injuries.

On November 23, 2007, Lemma and Grinkevich filed a complaint in the Law Division, naming Pennwood, the State and Berry as defendants.*fn1 Lemma alleged that Pennwood and the State were negligent because they failed to enforce certain regulations governing the "scoring down" of horses at the Raceway. Lemma also alleged that Pennwood was negligent in the ownership, maintenance and operation of the Raceway. He further claimed that Berry had negligently driven his horse, causing the collision that threw him to the ground. In addition, Grinkevich asserted a per quod claim.

On March 3, 2008, the State filed a motion for summary judgment pursuant to Rule 4:46-2. The State argued that it was immune from liability under the Tort Claims Act, N.J.S.A. 59:1-1 to 9-7 (TCA). The court granted the State's motion and entered an order dated April 14, 2008, dismissing plaintiffs' claims against the State, finding that the State was entitled to immunity under the TCA, specifically N.J.S.A. 59:2-4.

After Pennwood filed its answer, the court entered a case management order which required plaintiffs to produce their expert reports by March 11, 2009. Thereafter, the court entered another order which extended the time for plaintiffs to produce their expert reports, scheduled depositions, and directed that discovery be completed by October 15, 2009.

Because plaintiffs had not complied with the court's case management order, Pennwood filed a motion in July 2009 to compel them to produce their expert reports. On August 20, 2009, the court entered an order which extended discovery to December 11, 2009, and required plaintiffs to produce their expert reports by September 14, 2009, and barred any expert reports that were not produced by that date.

Plaintiffs did not comply with the court's order. In September 2009, Pennwood filed a motion for summary judgment. Pennwood argued that, because plaintiffs had not produced any expert reports, they failed to establish that Pennwood had breached a duty of care owed to Lemma. The court did not grant the motion. Instead, the court entered an order dated November 6, 2009, which extended the discovery end date to April 15, 2010.

The court gave plaintiffs additional time to produce their expert reports. The court required plaintiffs to serve their medical expert reports by December 31, 2009, and their liability expert reports by January 31, 2010. Plaintiffs did not serve their expert reports within the times required by the order.

On March 5, 2010, Berry filed a motion for summary judgment, in which he alleged that Lemma's claims against him were barred by the Workers' Compensation Act, N.J.S.A. 34:15-1 to -69.3, because Berry was Lemma's co-employee. Berry also argued that Grinkevich could not pursue a per quod claim because she was not married to Lemma.

On March 23, 2010, Pennwood filed another summary judgment motion, and also argued that Grinkevich's per quod claim should be dismissed because she and Lemma were not married. Plaintiffs filed a cross-motion, seeking a further extension of time for discovery.

The court considered the motions on April 16, 2010, and entered an order that day granting Pennwood's motion for dismissal of Grinkevich's claim and Berry's motion for dismissal of all claims against him. The court also denied plaintiffs' motion to ...


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