LARRY BOUIE v. VK REALTY ASSOCIATES (2013)

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.¹  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, 2012.²  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.³  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 advise that the arbitration was [proceeding].”

We conclude that plaintiff's counsel received proper notice of the arbitration.   In April 2012, both defense counsel and the court notified plaintiff's counsel of the July 20, 2012 arbitration date.   Plaintiff's counsel then received defense counsel's July 10, 2012 letter seeking an adjournment of the arbitration.   Plaintiff's counsel responded the next day by writing the arbitration office and, as a result, the arbitration was not adjourned.   Thus, the court did not err by dismissing the complaint without prejudice when plaintiff and his counsel failed to appear.   See Rule 4:21A–4(f) (stating that “[i]f the party claiming damages does not appear [at the arbitration, then] that party's pleading shall be dismissed”).

We discern that the judge concluded plaintiff ignored the dismissal without prejudice because defendant's motion to dismiss the complaint with prejudice was unopposed.   Plaintiff's counsel contended on reconsideration that he did not ignore this matter because he later moved to reinstate the complaint.   The fact remains, however, that reinstatement of the complaint was conditioned on establishing good cause, R. 4:21A–4(f), and payment of the restoration fee.   Here, plaintiff did neither.   Therefore, the judge did not err by dismissing the complaint with prejudice and denying reconsideration.

Affirmed.

FOOTNOTES

FN1. The record does not reflect on what date plaintiff was released from prison..  FN1. The record does not reflect on what date plaintiff was released from prison.

FN2. Defense counsel certified that on the day of the arbitration proceeding (1) a “court employee[,] who was handling the arbitration calendar[,] called [plaintiff's counsel's office]” and stated that the court would dismiss the complaint if plaintiff's counsel failed to appear at the arbitration;  and (2) the court employee then informed defense counsel that “[plaintiff's counsel] was out on another matter and ․ could not make it to [the arbitration].”   Plaintiff's counsel did not file an opposing certification, but disputes that his office received a call from the employee..  FN2. Defense counsel certified that on the day of the arbitration proceeding (1) a “court employee[,] who was handling the arbitration calendar[,] called [plaintiff's counsel's office]” and stated that the court would dismiss the complaint if plaintiff's counsel failed to appear at the arbitration;  and (2) the court employee then informed defense counsel that “[plaintiff's counsel] was out on another matter and ․ could not make it to [the arbitration].”   Plaintiff's counsel did not file an opposing certification, but disputes that his office received a call from the employee.

FN3. Instead, on September 27, 2012, he moved to reinstate the complaint contending solely that his office had made a clerical error by failing to diary the arbitration.   Plaintiff's certification in support of his motion to reinstate the complaint omits reference to payment of the $250 sanction.   Moreover, plaintiff's counsel did not argue that his client was unavailable for the arbitration.   Although the parties did not provide an order adjudicating plaintiff's motion to restore the complaint, defense counsel represents that the court denied that motion on October 26, 2012..  FN3. Instead, on September 27, 2012, he moved to reinstate the complaint contending solely that his office had made a clerical error by failing to diary the arbitration.   Plaintiff's certification in support of his motion to reinstate the complaint omits reference to payment of the $250 sanction.   Moreover, plaintiff's counsel did not argue that his client was unavailable for the arbitration.   Although the parties did not provide an order adjudicating plaintiff's motion to restore the complaint, defense counsel represents that the court denied that motion on October 26, 2012.

PER CURIAM