On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0421-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012
Before Judges Espinosa and Kennedy.
Plaintiff filed a motion to file an amended complaint, adding a new defendant, after the expiration of the fourth extension of the discovery period and arbitration had been conducted. He appeals from orders that denied this motion and his motion for reconsideration. We affirm.
On January 27, 2009, plaintiff initiated this action, alleging that he was injured when he fell in a parking lot owned by defendant Wayne VF, LLC (Wayne VF). The complaint also alleged that unknown parties had been negligent in failing to correct a dangerous condition on the premises. The matter was assigned to Track II, which, pursuant to Rule 4:24-1(a), has a three-hundred-day discovery period.
Wayne VF filed its answer on March 25, 2009. After its motion for leave to file a third-party complaint was granted, Wayne VF filed a third-party complaint on September 17, 2009 against Industriaplex, Inc. and US Maintenance, Inc. f/k/a Tower Cleaning Services, Inc. d/b/a US Maintenance (US Maintenance), seeking contribution and indemnification based upon a service agreement. US Maintenance filed an answer in which it asserted it had subcontracted the snow/ice removal services to Peter Bryn General Contractor (Peter Bryn) and, consequently also filed a third-party complaint against Peter Bryn. Industriaplex also filed an answer in which it generally denied the allegations against it.
Pursuant to Rule 4:17-1(b)(2), Wayne VF was required to serve its "answers to the appropriate uniform interrogatories within 60 days after service by that defendant of the answer to the complaint." Accordingly, its answers were due sixty days after March 25, 2009. However, it did not serve its answers to Form C and C(2) interrogatories until September 26, 2009. The record does not reveal any motion practice by plaintiff to compel answers or seek sanctions pursuant to Rules 4:23-1 or 4:23-5 in the intervening four months.
On October 15, 2009, Wayne VF filed the first request to extend discovery, seeking an extension from the discovery end date (DED) of January 19, 2009 to March 20, 2010, pursuant to Rule 4:24-1(b).
After learning that its contractual relationship with US Maintenance and Industriaplex had terminated prior to plaintiff's injury, Wayne VF sought leave to file an amended third-party complaint against FM Facility Maintenance f/k/a IPT (IPT) on March 19, 2010, the day before the first extension of the DED expired. Wayne VF also requested a second sixty-day extension of the DED.
Wayne VF subsequently filed an amended third-party complaint on April 16, 2010, seeking contribution and indemnification from US Maintenance, Industriaplex and IPT. In May 2010, Wayne VF dismissed its claims against Industriaplex and US Maintenance, which, in turn, dismissed its claims against Peter Bryn.
At this point, the only remaining third-party defendant was IPT. Both IPT and Wayne VF filed motions in July 2010, seeking the third extension of discovery in the case. In addition, Wayne VF sought an order compelling plaintiff to produce documents to support his lost wages claims and IPT asked for case management.*fn1
IPT filed a fifth-party complaint, seeking contribution and indemnification against Level 1 Maintenance (Level 1) on August 31, 2010. Level 1 never filed an answer or responsive pleading.
Aside from the form interrogatories that are deemed to be automatically served with the complaint pursuant to Rule 4:17-1(b)(2), the first discovery demand by plaintiff in the record is a notice to take oral deposition of "any executive, direct[or], manager, employee, agent or servant, [and] a representative of" Wayne VF on August 16, 2010, that was served July 26, 2010. The property manager ultimately ...