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Akash Ghulyani v. Morgan G. Dowd and Joseph L. Dowd

June 7, 2012

AKASH GHULYANI, PLAINTIFF-APPELLANT,
v.
MORGAN G. DOWD AND JOSEPH L. DOWD,
DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. DC-6435-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 6, 2012

Before Judges Kennedy and Guadagno.

Plaintiff appeals from an order entered on January 5, 2011, denying his motion to vacate a December 21, 2009 order dismissing his complaint without prejudice for failure to appear at trial. He also appeals from orders entered on February 8 and 25, 2011, denying his motion for reconsideration. For reasons expressed hereinafter, we affirm.

To put this matter in perspective, it is necessary to recount the somewhat unusual procedural history that preceded the orders on appeal. On February 29, 2008, plaintiff, acting pro se, filed a complaint in the Special Civil Part in Morris County against defendants Morgan and Joseph Dowd. The complaint alleged that plaintiff suffered various economic injuries as a consequence of an intersection accident on August 17, 2007, between his vehicle and a vehicle driven by Morgan Dowd and owned by Joseph Dowd. The complaint asserted a claim of negligence against Morgan Dowd and a claim based upon "respondeat superior" against Joseph Dowd.

Defendants thereafter engaged counsel and an answer was filed on their behalf. Following discovery, trial was scheduled for June 30, 2008. Defendants appeared at the trial call, but plaintiff did not appear, and an order was entered dismissing the complaint without prejudice. Plaintiff went to the courthouse later in the day and was told he would have to file a motion to reinstate his complaint.

Shortly thereafter, plaintiff filed a motion to vacate the dismissal in which he stated that his failure to appear at the trial call was "[d]ue to an urgent personal matter" constituting an "emergency situation." On July 21, 2008, the motion judge entered an order giving plaintiff ten days "to describe and substantiate, through documentary proof, the alleged emergency that precluded [plaintiff's] appearance for trial." The order also required plaintiff to "establish a meritorious claim."

In response, plaintiff submitted a certification in which he asserted that on the morning of trial his "dog was demonstrating change in his behavior" [sic] and he noticed a "bald spot" in the dog's coat. This prompted plaintiff to "research[] the internet" which revealed "several non life threatening reasons" for the dog's condition.

On August 20, 2008, the judge denied plaintiff's motion to reinstate the complaint, finding plaintiff's explanation "insufficient to establish excusable neglect" and noting that by plaintiff's "own admission the condition of the poodle (a bald spot) did not require immediate attention." Plaintiff did not challenge that order.

Rather, almost a year later, on June 2, 2009, plaintiff filed a second complaint against defendants for the same relief he sought in his 2008 complaint. Plaintiff alleged the same causes of action he alleged earlier. An answer was filed on behalf of defendants and, following discovery and the adjournment of two earlier trial dates, trial was scheduled for December 21, 2009. Again, plaintiff did not appear at the trial call and his complaint was dismissed without prejudice.

On December 10, 2010, plaintiff moved to vacate the dismissal entered almost a year earlier and contended that he had arrived at the courthouse after the trial call was concluded on December 21, 2009, due to severe weather over the weekend which resulted in train delays. The judge denied the motion on January 5, 2011, and explained, in part, that "[r]egardless of the weather conditions on December 21, 2009, plaintiff does not attempt to justify why he waited one year to reinstate his case[.]"

Plaintiff then moved before the trial court for "leave to appeal" on January 25, 2011, contending his claims against defendants involved "no material factual disputes" and that he was entitled to judgment "as a matter of law[.]" Plaintiff made no effort to explain his delay in filing the motion to vacate the dismissal. The court initially denied the motion on February 8, 2011, on the basis that the Law Division is without jurisdiction to consider appeals "of its own decisions." Thereafter, on February 25, 2011, apparently having chosen sua sponte to view the motion as one for reconsideration, the court again denied it on ...


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