On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5726-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Harris, and Koblitz.
Plaintiff Ronald Sullivan was injured as he entered a Comet V railcar manufactured by defendant ALSTOM Transportation, Inc. (ALSTOM) and operated by defendant New Jersey Transit (NJT). He appeals from six orders of the Law Division, the combined effect of which was to dismiss all of his claims against those entities:
February 18, 2011 order denying Sullivan's motion to extend discovery for the sixth time.
April 1, 2011 order denying Sullivan's motion to suppress the answer of NJT.
April 1, 2011 order denying Sullivan's reconsideration motion to extend discovery and permit the inspection of the railcar. April 1, 2011 order granting Alstom's motion for summary judgment.
April 4, 2011 order denying Sullivan's motion for summary judgment as to NJT.
April 4, 2011 order granting NJT's motion for summary judgment.
After our review of the record, we conclude that the motion judge (1) did not abuse his discretion in ending discovery, (2) properly denied reconsideration, and (3) accurately granted summary judgment dismissing all of Sullivan's claims. Accordingly, we affirm.
We present Sullivan's best case in this recitation of facts. We do so because ALSTOM and NJT prevailed on their motions to dismiss Sullivan's complaint on summary judgment, and therefore we "'must view the facts in the light most favorable to the non-moving party' -- plaintiff." Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 565 (2011) (quoting Bauer v. Nesbitt, 198 N.J. 601, 604-05 n.1 (2009)); see also R. 4:46-2(c).
On July 28, 2006, as Sullivan was boarding railcar 6525, which was part of a ten-car NJT train at New York City's Penn Station, he partially fell between the platform and portal. An unidentified fellow-passenger "grab[bed] [Sullivan] under [his] arms by [his] body . . . and pull[ed] [him] up and [stood] [him] on [his] feet." Sullivan asserted that when he stepped upon the railcar's yellow threshold extension bar, it gave way under his weight causing his left leg to become temporarily wedged between the railcar and the concrete platform, and his right leg was bent back into a hurdler position along the railcar's door threshold. Consequently, Sullivan claims he suffered two herniated discs and now endures their painful sequelae.
After being hoisted up, Sullivan described his ordeal to an NJT conductor, identified as "Mr. F[urqan] Mohammed." Sullivan requested that Mohammed fill out an incident report of the accident and was assured that such a report would be completed and then made available to Sullivan at a later date.
At his deposition, Muhammad indicated that he did not remember the date of the accident. Nevertheless, he described the process of completing an NJT Form 1055, which identified any observed defects in the railcars, and testified that he "sure did" fill out such a form on the date in question. However, a Form 1055 for the date of the incident has never surfaced in this litigation.
Sullivan commenced this action in July 2008, naming NJT and ALSTOM as the sole defendants.*fn1 Discovery was undertaken and extended five times: once by consent of the parties, once by a case management order, and thrice by motions to extend discovery. The last extension, memorialized in a case management order entered on September 18, 2010, scheduled various discovery events, including ...