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Fouad Abouchokr v. Slavco Construction Co.

December 5, 2011


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0899-08.

Per curiam.


Argued September 27, 2011

Before Judges Messano and Yannotti.

Plaintiff Faroud Abouchokr appeals from the Law Division's order of August 27, 2010, which denied his motion to reinstate his complaint; denied leave to amend the complaint; and denied an extension of discovery. We have considered the arguments raised in light of the record and applicable legal standards. We reverse.

The procedural history is convoluted. Plaintiff was allegedly injured on February 27, 2006, while employed by defendant Agapi Foods Incorporated (Agapi). At the time, Agapi was renovating premises at 152 Getty Avenue, Clifton. Plaintiff retained Marvin S. Davidson, Esq., to represent him with respect his workers' compensation petition and his third-party negligence suit.

In a complaint filed February 26, 2008, plaintiff alleged that defendant Slavco Madzarov (Madzarov), and his corporation, Slavco Construction Company (Slavco, and collectively, the Slavco defendants), owned the property and were constructing a "freezer wall." Plaintiff further claimed that "Jerry," an employee of Slavco whose last name was unknown, negligently drove a forklift causing the wall to collapse on plaintiff and seriously injure him. Plaintiff further alleged that defendants Joseph Marcos and George Alafian, owners of Agapi, rented the premises from Slavco and Madzarov and were negligent in failing to maintain a safe workplace. In the third count of the complaint, citing uncertainty as to the actual ownership of 152 Getty Avenue, plaintiff alleged that fictitious XYZ Corporation, the owner of the premises, was negligent.

Only Marcos filed an answer to the complaint. On September 13, 2008, plaintiff's complaint was dismissed as to the remaining defendants for lack of prosecution pursuant to Rule 1:13-7(a). Arbitration was scheduled as to Marcos for May 8, 2009. However, neither plaintiff nor Davidson appeared, and, as a result, the action was dismissed without prejudice. The order provided that reinstatement of the complaint be conditioned upon the payment of a $250 sanction fee and a showing of good cause.

Plaintiff moved to reinstate the complaint to the active trial list. The motion was granted on July 2, 2009, contingent upon the payment of the $250 sanction fee. A new arbitration date was set for June 18, 2010. The complaint, however, was not reinstated until April 2010, when Davidson paid the sanction fee.

Through counsel, Agapi, Marcos and Alafian (the Agapi defendants) attempted to file an answer.*fn1 The answer was returned to defense counsel on April 27, 2010, with a form letter advising that a formal motion was required. On April 29, 2010, the Agapi defendants moved to permit the filing of an answer out of time; extend the discovery end date; and adjourn the arbitration.

The judge entered two orders.*fn2 Handwritten notes on the first order denying any discovery extension, dated May 19, 2010, provided that "[n]o exceptional circumstances [were] demonstrated [as to] why this matter was handled in such a tortured manner." The second order, dated May 28, 2010, denied the Agapi defendants' request to file an answer out of time. In handwritten notes on that order, the judge listed the events we have already described regarding dismissal of the complaint, its reinstatement and Davidson's failure to pay the sanction fee. The judge concluded: "This case has been woefully neglected and good cause has not been shown why this matter should be restored. Discovery ended over [one] year ago and no discovery has taken place."

On May 28, plaintiff's current counsel, Ronald M. Gutwirth, filed a substitution of attorney which Davidson executed as the "[w]ithdrawing [a]attorney." The substitution was filed on June 17, 2010. The next day Davidson, Gutwirth and counsel for the Agapi defendants appeared before the judge seeking an adjournment of the arbitration. The request was denied and the arbitration proceeded as to Marcos only, who was found not liable based upon, in part, the workers' compensation exclusivity bar. See N.J.S.A. 34:15-8.

On August 6, 2010, plaintiff moved: 1) to reinstate his complaint as to Slavco, Madzarov, Agapi, and Alafian; 2) to amend the complaint to include 164 Getty Ave LLC (the LLC) as a defendant; 3) for reconsideration of the May 19 and May 28 orders; and 4) to permit substitution of counsel.*fn3 He requested oral argument.

In support of the motion, Gutwirth certified that Davidson had advised him that "all defendants were served and had filed answers." However, Gutwirth's own review of the file indicated that it was unlikely that Slavco, Madzarov, or Agapi were ever ...

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