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Magalie Fenelus, Paul J. Garconnet, and Philoseme Garius v. Gabriella Romero-Borja

August 22, 2011

MAGALIE FENELUS, PAUL J. GARCONNET, AND PHILOSEME GARIUS, PLAINTIFFS-APPELLANTS,
v.
GABRIELLA ROMERO-BORJA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4138-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 16, 2011

Before Judges Waugh and Koblitz.

Plaintiffs Magalie Fenelus, Paul J. Garconnet, and Philoseme Garius appeal the dismissal with prejudice of their personal injury action. We affirm.

This matter arises out of an automobile accident that occurred in October 2007. Plaintiffs alleged in a complaint filed in December 2008 that they suffered personal injuries as a result of the accident. Defendant Gabriella Romero-Borja was the driver of the other vehicle involved in the accident. Following discovery, the matter was assigned for mandatory arbitration. Defendant subsequently requested a trial de novo.

The case was listed for trial on June 1, 2010. At the request of defense counsel, the trial was adjourned. The case was then listed for trial on July 26, 2010, and called in on July 27. That morning, counsel for plaintiffs requested an adjournment from the vicinage assignment judge, which request was denied.*fn1 The case was assigned to another judge for trial that day.

Following unsuccessful attempts to settle the case, the trial judge proposed that the jury be chosen that day and the trial commence on the following afternoon. Counsel for plaintiffs informed the judge that he was not prepared to proceed because his doctors and the MRI films would not be available until later that week or sometime the following week.

He advised the judge that it would be "a waste of time" to start the trial under those circumstances.

Defense counsel then moved for dismissal on the grounds that plaintiffs were not prepared to proceed. Counsel for plaintiffs responded that he did not object to a dismissal, "subject to reservation of [his] right to move to vacate it after [he was] ready to proceed to trial." Defense counsel made it clear that he would not consent to an application to reinstate the complaint.

The judge entered an order of dismissal with prejudice. Counsel for plaintiffs objected to the "with prejudice" provision. The judge then offered to allow time for the de bene esse depositions of the medical experts, as well as obtaining the MRI reports. Counsel for plaintiffs refused, stating that his clients were not willing to bear the expense. The judge, who had also observed that none of the plaintiffs were present in court, refused to change the terms of the order.

On August 11, plaintiffs filed a motion for reconsideration and to vacate the dismissal. Counsel certified that the deadline for an application to adjourn the trial date under Rule 4:36-3(b) was "inadvert[ently] missed [by his] sole litigation paralegal," that the doctor was "not available to testify due to [a] family emergency," and that plaintiff Philoseme Garius was "unable to appear that day." The absence of the other plaintiffs was not even addressed. The judge denied the motion in a letter opinion dated August 31, 2010. She explained her reasons, in part, as follows:

Rule 4:36-3(b) states that adjournment requests should be made as soon as the need for same is known, but "in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week." Here, the plaintiffs admit that they did not make a timely request for a trial adjournment. The plaintiffs have not presented any new evidence as to why this court should reconsider the July 27, 2010 order. Additionally, plaintiffs have not provided ...


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