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Nicholas Mandorlo and Deborah Mandorlo, His Wife v. Enrique T. Endo

July 5, 2011

NICHOLAS MANDORLO AND DEBORAH MANDORLO, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
ENRIQUE T. ENDO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0483-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 15, 2011

Before Judges A. A.Rodriguez and Reisner.

Nicholas Mandorlo and his wife Deborah Mandorlo (collectively "plaintiffs") sued Enrique T. Endo, alleging negligence, which caused an automobile accident on February 14, 2000, resulting in an injury to Nicholas. The action was dismissed on December 8, 2003, because plaintiffs' counsel, George C. Nardella of the law firm, then known as Abdy, Kane & Nardella, P.C., failed to appear for trial. Several years later, plaintiffs moved to reinstate or restore the case. On May 10, 2010, Judge W. Hunt Dumont denied the motion. Plaintiffs did not file a timely appeal. Instead, they moved for reconsideration. Judge Dumont denied reconsideration on July 29, 2010. We affirm.

For argument's sake, we adopt the following procedural assertions advanced by plaintiffs. After the suit was filed, Endo filed an answer. He was represented by Gloria Rodriguez, Esq. of the law firm of Robert Averbach. In August 2003, a non-binding arbitration hearing was held, but the arbitration award was rejected. Plaintiffs requested a trial de novo.

According to Nardella's certification in support of the motion for reconsideration filed in 2010, one week before the trial date, on December 8, 2003, Nardella alleges that the attorneys discussed settlement by way of binding arbitration. This is disputed by Rodriguez. But, it is undisputed that a binding arbitration hearing was never held and the parties did not take steps to conduct one.

Three days before the trial date, Nardella alleges that he contacted the Civil Case Manager's office to inquire about the calendar call. He was advised that the matter was marked "settled." Nardella assumed that his adversary had settled the case because there would be an arbitration hearing. However, Rodriguez appeared at the December 8, 2003 trial call. The case was active. On December 9, 2003, it was dismissed and the record marked: "Plaintiff Failed to Appear, Dismissed by Court." Nardella alleges that the first time he learned that the complaint had been dismissed was six years later, on January 20, 2010. He complains that Rodriguez never advised him that the case was dismissed. He does not indicate what steps he or his office took to restore the case at that time, in light of his knowledge that a binding arbitration hearing did not occur.

Plaintiffs moved to restore the complaint. Judge Dumont denied the motion and signed an order on May 20, 2010, giving the following reasons:

Denied; this is a 2002 docketed case. There was non-binding arbitration by the Court on 8/7/03. Trial de novo followed pursuant to [Plaintiffs'] request. It was listed for trial on 12/8/03 and was dismissed for lack of appearance by [Plaintiff] and counsel. The order was signed by retired Judge Crump on 12/8/03. It was not restored in the period since. Nevertheless, the [Plaintiff] has continued to treat and to restore it now 6 1/2 years later would severely prejudice the [Defendant]. Defense counsel closed her file in July 2004 and the IME predates the Dec. 2003 dismissal.

Plaintiffs did not appeal this decision. Instead, they moved for reconsideration three weeks later. Judge Dumont denied reconsideration on July 29, 2010 and gave the following reasons:

Reconsideration denied, the prior order of 5/20/10 stands for the reasons recited therein. The movant cannot meet the standard for reconsideration from Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). The Court's prior decision was neither palpably incorrect nor irrational.

The Court did not fail to consider the merits of movant's argument and its not going to inflict severe prejudice on the [Defendant] by reinstating this 2002 case in 2010.

On appeal, plaintiffs contend that the judge "erred in denying the reconsideration motion for reinstatement and to vacate the order of dismissal as the court should view the motion to vacate the dismissal with great liberality and every reasonable grounds for indulgence is tolerated to the end that a just result is reached; ...


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