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


August 22, 2011


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

Per curiam.


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 sufficient legal or factual support for their assertion that dismissal should have been without prejudice rather than with prejudice.

This appeal followed.

In Kosmowski v. Atlantic City Medical Center, 175 N.J. 568, 574-75 (2003), the Supreme Court addressed the factors a trial court must consider in its discretionary decision as to whether a case should be adjourned due to the unavailability of a plaintiff's expert:

Clearly, the court must focus on the tension between, on the one hand, "the salutary principle that the sins of the advocate should not be visited on the blameless litigant," Aujero v. Cirelli, 110 N.J. 566, 573 (1988), and, on the other, "the court's strong interest that management of litigation, if it is to be effective, must lie ultimately with the trial court and not counsel trying the case." Rabboh v. Lamattina, 312 N.J. Super. 487, 492 (App. Div. 1998)[, certif. denied, 160 N.J. 88 (1999)]. . . . When an attorney is unable to try a case due to the first unavailability of an expert, dismissal of the complaint with prejudice "is drastic punishment and should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the court's authority." Allegro v. Afton Village Corp., 9 N.J. 156, 160-61 (1952). Although the request for an adjournment is addressed to the trial judge's discretion, the ultimate sanction of dismissal with prejudice should be imposed "only sparingly." Zaccardi v. Becker, 88 N.J. 245, 253 (1982). Because "dismissal with prejudice is the ultimate sanction [when an expert is unavailable for the first time], it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party." Ibid. (citations omitted). The same principles were reaffirmed in Abtrax Pharmaceuticals, Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512-17 (1995).

Here, it appears that the first adjournment request was made by defense counsel and that this was plaintiffs' first such request. However, counsel for plaintiffs failed to seek an adjournment within the time required by Rule 4:36-3(b) ("Requests for adjournment should be made as soon as the need 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.").

The trial judge offered to allow time to obtain the MRI records and for the medical experts to be deposed de bene esse, but plaintiffs were unwilling to bear that expense. The motion for reconsideration offered no satisfactory explanation of the absence of any of the plaintiffs on the day the case had been called for trial, nor was there a certification or even a writing from the doctor explaining the nature of his emergency and inability to appear for trial.

Under all of the circumstances, we cannot say that the trial judge abused her discretion in dismissing the case with prejudice when plaintiffs were not prepared to proceed and refused the opportunity to depose the doctors de bene esse. In addition, plaintiffs' counsel was not even prepared to offer the testimony of his clients. We decline to disturb the judge's exercise of discretion in ordering a dismissal with prejudice, because to do so would circumvent the purposes behind the "Best Practices" rule amendments. See Shulas v. Estabrook, 385 N.J. Super. 91, 102-03 (App. Div. 2006).


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