DISCOVERY EXTENSION ONLY FOR DEFENDANTS FOUND TO BE AN INAPPROPRIATE SANCTION
Rodriguez de Collado v. Gardner Luciano, et al., No. A-3266-20 (App. Div. Dec. 9, 2022) (unpub.)
Plaintiff appealed from a Law Division order that extended discovery only for defendants, claiming the court’s decision violated N.J. Ct. R. 4:24(c) and was contrary to the interests of justice. Plaintiff also appealed from other orders granting summary judgment and denying the motion to vacate the May 2021 order at issue.
In 2019, plaintiff allegedly tripped and fell on a “broken sidewalk” in Paterson, claiming to suffer serious and permanent injuries. Defendants moved to extend the discovery end date; however, the court did not enter an order granting the request until two months later. Plaintiff failed to comply with defendants’ discovery requests, and defendant Luciano moved to dismiss the complaint with prejudice which was granted. Plaintiff filed an application to reinstate the dismissed complaint against Luciano and reopen and extend discovery.
After hearing oral arguments on the reinstatement application, the Law Division judge reinstated plaintiff’s complaint and reopened and extended discovery only for the defendants. In the trial court decision, the judge relied on Sprankle v. Adamar of New Jersey, Inc., 388 N.J. Super. 216 (Law Div. 2005) and reasoned plaintiff “sat on her hands” and had opportunities to meet discovery demands for over a year.
On appeal, plaintiff argued the order extending discovery only for defendants “was against the spirit and letter of the Rules” and punitive in nature. Plaintiff attributed the discovery delays as a result of the complex procedural history, various extensions, and COVID-19 related issues. The Appellate Division agreed in an unpublished decision that the lower court abused its discretion in refusing to extend discovery to all parties, holding the remedy was inappropriate under the circumstances.
The court noted that for sanctions for discovery violations, dismissal of a claim for failure to comply with discovery is the “last and least favorable option.” The court held a lesser sanction, “one that would not have led to the inevitable dismissal of plaintiff’s case” would be appropriate. The Appellate Division reversed all orders on review and remanded for further proceedings.
LEGAL MALPRACTICE CLAIM NOT VIABLE WITHOUT
ATTORNEY-CLIENT RELATIONSHIP
Novembre v. Brooklyn Nets et al., No. A-2336-20 (App. Div. Dec. 28, 2022) (unpub.)
Plaintiffs appealed from orders dismissing their complaint, awarding sanctions, and entering judgment in favor of defendants Paul Soderman, Esq. and Paul Soderman, LLC. In several underlying actions, plaintiffs alleged a student from Snyder High School fell on plaintiff and injured her while attending a Nets home game in 2005. In the first action, the jury verdict was a no cause based on plaintiff’s failure to prove proximate cause. In the second action, plaintiffs asserted defendants concealed information relevant to identifying the students who attended the game. The motion judge granted defendants’ motions for summary judgment in the second action.
In 2020, plaintiffs filed a third complaint alleging fraudulent concealment/spoilation of the evidence against the Nets and other defendants, and fraud and legal malpractice against the Soderman defendants. The motion judge dismissed the third action with prejudice and granted the Sodernman defendants’ motions for sanctions and counsel fees, concluding that the complaint was filed in bad faith and for an improper purpose.
In an unpublished decision, the Appellate Division disagreed with plaintiffs’ claim on appeal that the judge erred in granting defendants’ motions because plaintiffs’ claims were not barred by res judicata. The doctrine of res judicata provides that a cause of action between the parties “that has been finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those parties or their privies in a new proceeding.” As plaintiffs third action involves the same parties and repeated the exact same causes of action in the second action, the judge properly dismissed the third action as res judicata.
The Appellate Division also addressed the merits of plaintiffs’ claims. Plaintiffs were unable to demonstrate reasonable reliance to prove their fraud claims. Regarding the legal malpractice claim, the plaintiffs were required to show an existence of an attorney-client relationship creating a duty of care, breach of that duty, and proximate causation of damages. The Appellate Division affirmed the lower courts finding that because the Soderman defendants had no attorney-client with plaintiffs thus no claim for legal malpractice was viable.
The Appellate Division further stated even if plaintiff’s claims in the third action were not precluded by the doctrine of res judicata, the claims in the third action were not sustainable as a matter of law and properly dismissed with prejudice. The court also found the trial judge did not abuse his discretion in granting attorney’s fees. All orders were affirmed.
Rosario et al. v. The Hartford Fire Insurance Co., et al., No. A-1968-20 (App. Div. Jan. 4, 2023) (unpub.)
In an unpublished opinion, the Appellate Division addressed an insurance coverage dispute where plaintiffs sought the proceeds of the comprehensive general liability (CGL) policies issued by the defendant insurance carriers to a property developer. The Appellate Division affirmed the lower courts conclusion that the pollution exclusion contained in defendants’ CGL policies precluded coverage.
Plaintiffs purchased homes from a developer that were utilized by the previous owner and co-developer for commercial purposes that contaminated the property. The property was used as a gas station, car dealership, and autobody shop that discharged oil into floor drains and soil. After direction from the Department of Environmental Protection to remediate the site, co-developer instead leveled the property with contaminated soil. Defendant developer, aware of the property’s prior usage and contamination, built two single-family homes on the lot and failed to disclose the environmental issues to the realtors and plaintiffs.
At issue in the appeal were the CGL policies issued by the defendant insurance carriers to the defendant developer. The policies obligated the carriers to pay on the insured’s behalf the sums the insured becomes “legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies.” The policies contained pollution exclusions which provided that bodily image or property damage arising out of pollutants were not covered.
In the underlying action against defendant developer, plaintiffs alleged violations of the Consumer Fraud Act, the New Jersey Spill Compensation Act, and causes of action for misrepresentation, negligence, equitable fraud, and breach of contract. The trial court entered a judgment of nearly $2 million against the defendant developers. Plaintiffs were unable to collect the judgment and filed a complaint against the insurance carriers seeking to satisfy the judgment against the insured developers. In addressing the defendant carriers’ motions for summary judgment, the motion judge concluded defendants’ policies specifically excluded the type of claim present in this case.
Reviewing the issue de novo, the Appellate Division found the words of the insurance policy were not ambiguous, the defendants satisfied the burden of demonstrating the pollution exclusion in their policies applied, and any pollution exclusion exception plaintiff argued was without sufficient merit.
DUTY OF CARE SATISFIED THROUGH ADEQUATE SECURITY MEASURES
Goins v. Wilson et al., No. A-1186-21 (App. Div. Jan. 11, 2023) (unpub.)
Plaintiff was injured after an altercation with defendant that took place on an apartment complex parking deck in Irvington. Plaintiff brought suit claiming defendant operators of the complex were negligent in the maintenance of the property. The Law Division granted defendant’s motion for summary judgment and dismissed plaintiff’s complaint with prejudice.
The apartment complex has security features such as a gated entry with a security guard, separate parking lots for visitors and residents with swipe access, an eighteen-person security team that patrolled the complex and parking areas, and twenty-four-hour security every day of the year.
Plaintiff received a phone call from the security team that informed him the door of his car was found open. Three hours after the call, plaintiff went unaccompanied to his car where he found defendant Wilson sitting in plaintiff’s driver’s seat. A physical altercation ensued, allegedly resulting in plaintiff sustaining multiple injuries.
In granting defendant operators of the apartment complex’s motion for summary judgment, the judge recognized that landlords “have a responsibility to take reasonable steps to curtail the dangerous activities of other tenants of which they should be aware” and pose a hazard to others. Scully v. Fitzgerald, 179 N.J. 114 (2004). However, nothing in the record demonstrated that defendant had reason to know or discover of any dangerous condition in the parking area, and any previous incidents involving defendant Wilson were nuisance complaints. Because the incident was unforeseeable, the judge concluded defendant did not owe a duty to plaintiff.
The Appellate Division disagreed with the motion judge to the extent that defendant did not owe a duty to plaintiff. The motion judge relied on the lack of prior reports regarding Wilson’s conduct to show that the physical altercation was unforeseeable. The Appellate Division pointed out that the Court has rejected the need to demonstrate “prior or similar incidents” in charging a premises owner with a duty to exercise reasonable efforts to provide for tenant or customer safety, favoring instead the totality of the circumstances approach. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496 (1997). The defendant had a general duty to maintain a safe parking deck for its tenants against potential dangers posed by other tenants or third parties.
However, the Appellate Division held that the defendant did not breach its general duty to provide safe parking. Defendants had security measures in place and notified plaintiff about the condition of his vehicle. Plaintiff took it upon himself to go to his car unaccompanied and confront defendant Wilson. The Law Division decision is affirmed.
AOM EXCEPTION APPLICABLE WHEN DEFENDANT FAILS TO COMPLY
WITH DISCOVERY REQUESTS
Estate of Laura Christine Semprevivo et al. v. Lahham et al., No. A-0907-21 (App. Div. Jan. 20, 2023) (unpub.)
In an unpublished decision, the Appellate Division reversed an order dismissing plaintiff’s complaint with prejudice based on a failure to file an affidavit of merit pursuant to the Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29.
Laura Semprevivio committed suicide in September 2016. Two years later, Patricia Semprevivo, in her own right and as the estate administrator, filed a complaint against the decedent’s medical providers. Plaintiffs alleged defendants has carelessly and negligently prescribed opioids to the decedent and failed to maintain adequate safety protocol thereby causing her death. Plaintiffs’ counsel identified the nature of the case as personal injury and not professional malpractice.
In August 2021, the court granted defendant’s request to reclassify the matter as a professional-negligence case, requiring plaintiffs to file an Affidavit Of Merit. Plaintiffs’ counsel filed a certification citing N.J.S.A. 2A:53A-28, which provides, in part, that an Affidavit Of Merit is not required if the plaintiff provides a sworn statement setting forth that defendant has failed to provide plaintiff with medical records or other records having a substantial bearing on the preparation of the affidavit. Plaintiffs’ counsel certified defendant had not provided plaintiffs with any records or responses to plaintiffs’ discovery requests and plaintiffs doctor was unable to prepare an AOM due to insufficient records.
The motion judge dismissed the case with prejudice based on plaintiffs’ failure to submit an Affidavit Of Merit. Plaintiffs appealed, contending the judge erred in denying their relief of the AOM requirement based on defendant’s failure to produce the requested discovery.
The Appellate Division found that for a plaintiff to be entitled to the statutory exemption under N.J.S.A. 2A:53A-28, the legislature required only a sworn statement that the defendant failed to respond within forty-five days of a written request for medical records or other information “having a substantial bearing on the preparation of the affidavit.” Plaintiff satisfied that requirement in this case. The lower court denied plaintiffs the exemption based on an improper reading of the statute.
The Appellate Division concluded the trial judge erred in rejecting the sworn statement plaintiffs submitted and in dismissing the complaint with prejudice. On remand, the Appellate Division directed the matter be assigned to a different judge who must enter an order exempting plaintiffs from the affidavit of merit requirement.
