NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 27, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5454-10.
Charles P. Ingenito argued the cause for appellant.
Jose D. Roman argued the cause for respondent (Powell & Roman, L.L.C., attorneys; Mr. Roman, of counsel and on the brief).
Before Judges Harris and Fasciale.
Plaintiff appeals from a December 7, 2012 order denying his motion for reconsideration of an October 15, 2012 order dismissing his complaint with prejudice for failure to appear at a non-binding personal injury arbitration (the arbitration). We affirm.
In March 2012, the court scheduled the arbitration for May 11, 2012. On April 17, 2012, the court entered an order extending discovery and rescheduling the arbitration to July 20, 2012. On April 20, 2012, defense counsel forwarded that order to plaintiff's counsel. On April 24, 2012, the court notified counsel of the new arbitration date.
Defense counsel then scheduled plaintiff's deposition for May 8, 2012. On May 14, 2012, plaintiff's counsel informed defense counsel that plaintiff was incarcerated. Pursuant to a June 15, 2012 order, defense counsel scheduled plaintiff's deposition to occur in prison on July 11, 2012. On July 10, 2012, plaintiff's counsel gave defense counsel permission to depose plaintiff in his absence. On the same date, defense counsel refused and requested an adjournment of the arbitration, contending that plaintiff's deposition remained pending.
On July 11, 2012, plaintiff's counsel informed the arbitration office that plaintiff's deposition was outstanding because defense counsel refused to appear at that proceeding. Plaintiff's counsel did not state that plaintiff was unavailable for the July 20, 2012 arbitration, and he did not join the adjournment request. The court did not adjourn the arbitration.
Plaintiff's counsel and plaintiff failed to appear at the arbitration on July 20, 2012. As a result, the court entered an order dismissing the complaint without prejudice, and conditioned reinstatement of the pleading upon the payment of a $250 fee. Plaintiff's counsel does not dispute receiving this order.
On or about September 24, 2012, defendant moved to dismiss the complaint with prejudice pursuant to Rule 4:37-2(a). Plaintiff's counsel did not oppose this motion. On October 15, 2012, the court granted defendant's motion to dismiss the complaint with prejudice and hand wrote on the order that "[p]laintiff has ignored this matter." On or about November 2, 2012, plaintiff moved for reconsideration of the October 15, 2012 order, maintaining that his office did not diary the arbitration and disputing the judge's conclusion that plaintiff's counsel ignored the matter. Again, he did not contend that plaintiff was unavailable for the arbitration. On December 7, 2012, the court denied plaintiff's reconsideration motion. This appeal followed.
On appeal, plaintiff's counsel argues that his office "was never notified of the arbitration." Plaintiff's counsel asserted in his brief that on "the day of the arbitration[, ] my office was not notified nor called by the [c]ourt to ...