CARLO J. COPPA, SR. VS. VIVIAN DEMAS, ESQ. (L-4085-14, PASSAIC COUNTY AND STATEWIDE) ( 2019 )


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  •                                  NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2470-17T1
    CARLO J. COPPA, SR.,
    Plaintiff-Appellant,
    v.
    VIVIAN DEMAS, ESQ.,
    Defendant-Respondent.
    ____________________________
    Submitted February 27, 2019 – Decided August 23, 2019
    Before Judges Nugent and Mawla.
    On appeal from the Superior Court of New Jersey, Law
    Division, Passaic County, Docket No. L-4085-14.
    Carlo J. Coppa, Sr., appellant pro se.
    Marshall Dennehey Warner Coleman & Goggin,
    attorneys for respondent (Howard B. Mankoff and
    Walter F. Kawalec, on the brief).
    PER CURIAM
    Plaintiff, Carlo J. Coppa, Sr., a former attorney and former client of
    defendant Vivian Demas, Esq., appeals the summary judgment dismissal of his
    legal malpractice complaint.     The trial court dismissed his complaint on
    summary judgment because he did not have an expert report. The court denied
    his motion to extend the deadline for expert reports and to extend the time to
    complete discovery. Thereafter, the court denied his motion for reconsideration.
    Plaintiff appeals. To succeed, he must show the court abused its discretion when
    it denied his motions to extend discovery and for reconsideration. He has not
    made the required showing. Hence we affirm.
    This action's procedural history is not complicated. Plaintiff filed a legal
    malpractice complaint in which he alleged he had retained defendant to pursue
    a medical malpractice claim and she mishandled it.           He filed the legal
    malpractice complaint on November 6, 2014. After the complaint was dismissed
    and reinstated for reasons not relevant to this appeal, the trial court dismissed
    the complaint without prejudice on February 3, 2017, due to plaintiff's failure to
    serve discovery responses. The court reinstated the complaint when plaintiff
    served them.
    In plaintiff's discovery responses, he said he would provide expert reports.
    When he did not provide them, defendant filed a motion to compel the reports.
    The trial court granted the motion and issued a September 8, 2017 order that
    required plaintiff to serve expert reports within twenty days. Plaintiff missed
    A-2470-17T1
    2
    the deadline. Defense counsel granted plaintiff a short extension to serve expert
    reports. Plaintiff did not serve expert reports, so defendant filed a mo tion for
    summary judgment on October 5, 2017. Defendant filed a cross-motion to
    extend his deadline for serving an expert report and to extend the discovery end
    date forty-five days. On November 3, 2017, the court filed two orders that
    granted defendant's motion and denied plaintiff's cross-motion.
    In granting defendant's summary judgment motion, the court noted there
    were no genuine issues of material fact in dispute.       The court also noted
    plaintiff's cause of action was one for professional negligence and he needed an
    expert to prove his case. Because plaintiff had served no expert report, and
    because the time for serving expert reports had expired, the court granted the
    motion.
    In his cross-motion to extend the deadlines for serving experts and
    discovery, plaintiff filed a certification and averred he had missed the deadline
    for serving expert reports "[d]ue to various issues[.]" He did not elaborate. He
    further averred he had named an expert, and the expert would serve his report
    the week of October 30, 2017. In a November 2, 2017 letter the expert sent to
    plaintiff, the expert said he planned to have the report "ready sometime next
    week."
    A-2470-17T1
    3
    Denying the cross-motion, the court explained in a notation on the
    November 3, 2017 order:
    The application is denied. The movant has continually
    failed to meet his discovery obligation. In his proposed
    form of order, he sets forth an overdue date that
    contravenes a prior court order and in subsequent
    correspondence makes it clear he is violating his own
    order because he intends to serve the report the week of
    11/6/17. At some point orders have to mean something
    and dates are not merely suggestions but actual
    deadlines.
    Plaintiff subsequently served an expert report and filed a motion under
    Rule 4:50-1(f) to vacate the November 3, 2017 orders. On January 9, 2018, the
    court denied the motion. In a handwritten note on the memorializing order, the
    court wrote: "Application is denied. Movant has essentially reargued the same
    set of facts this court took into account in denying the original motion. That is
    not the standard on a motion for reconsideration. Movant has failed to show
    original denial was based on palpably incorrect reasoning."         This appeal
    followed.
    On appeal, plaintiff argues the trial court erred by not vacating the
    November 3, 2017 orders under Rule 4:50-1(f). He notes his expert's schedule
    was beyond his control and emphasizes that cases should be tried on their merits.
    Defendant responds that the trial court's denial of the motion to va cate the
    A-2470-17T1
    4
    November orders was not reversible error. She asserts there were no truly
    exceptional circumstances present to justify the relief plaintiff sought, and no
    injustice resulted from the denial of plaintiff's motion for relief from the
    November orders.
    Our scope of review of the issues plaintiff raises is narrow. We generally
    review trial court decisions about whether to extend discovery deadlines, and
    what sanctions to impose for violation of discovery orders, for abuse of
    discretion. Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 
    139 N.J. 499
    , 517 (1995);
    Quail v. Shop-Rite Supermarkets, Inc., 
    455 N.J. Super. 118
    , 133 (App. Div.
    2018); Leitner v. Toms River Reg'l Schs., 
    392 N.J. Super. 80
    , 87 (App. Div.
    2007). "This deferential approach 'cautions appellate courts not to interfere
    unless an injustice appears to have been done.'" Quail, 455 N.J. Super. at 133
    (quoting Abtrax, 
    139 N.J. at 517
    ).
    We find no abuse of discretion by the trial court in this case. Plaintiff had
    not provided an expert report with interrogatory answers.            The answers
    themselves had been a long time coming, plaintiff's complaint having been
    dismissed for failure to timely serve them. Defendant had to move to compel a
    deadline for plaintiff to serve expert reports so that defendant would have time
    to evaluate the reports and retain her own expert, if necessary, before the
    A-2470-17T1
    5
    discovery end date. In view of plaintiff's repeated disregard of the deadlines
    and the discovery rules, as well as the trial court's discovery order, we find no
    abuse of discretion on the part of the trial court either in declining to delay the
    summary judgment motion or in refusing to further extend the court-ordered
    deadline for plaintiff to submit expert reports.
    Plaintiff also argues the court erred by denying his motion for relief from
    judgment pursuant to Rule 4:50-1(f). The appellate record is not entirely clear
    whether plaintiff filed a motion for reconsideration under Rule 4:49-2 or a
    motion for relief from judgment under Rule 4:50-1(f). Regardless, the result is
    the same.
    Our scope of review of a trial court's denial of a motion for reconsideration
    is governed by an abuse of discretion standard. Davis v. Devereux Found., 
    414 N.J. Super. 1
    , 17 (App. Div. 2010) (citing Marinelli v. Mitts & Merrill, 303 N.J.
    Super 61, 77 (App. Div. 1997)). Reconsideration is reserved for "cases which
    fall into that narrow corridor" where the prior decision was "based upon a
    palpably incorrect or irrational basis," or the court failed to consider or
    appreciate "probative, competent evidence," or where a "litigant wishes to bring
    new or additional information to the [c]ourt's attention which it could not have
    A-2470-17T1
    6
    provided on the first application." D'Atria v. D'Atria, 
    242 N.J. Super. 392
    , 401
    (Ch. Div. 1990).
    Similarly, a trial court's denial of relief from a judgment under Rule 4:50-
    1(f) "will be left undisturbed unless it represents a clear abuse of discretion." In
    re Guardianship J.N.H., 
    172 N.J. 440
    , 473 (2002) (quoting Hous. Auth. v. Little,
    
    135 N.J. 274
    , 283 (1994)). Generally, relief under subsection (f) of Rule 4:50-
    1 is available only when "truly exceptional circumstances are present." 
    Ibid.
    (quoting Hous. Auth., 
    135 N.J. at 286
    ).
    Plaintiff sought relief from the trial court's grant of summary judgment to
    defendant and the court's denial of plaintiff's application to extend deadlines for
    serving expert reports and completing discovery. The court did not abuse its
    discretion in denying reconsideration under Rule 4:49-2, because plaintiff did
    not demonstrate the court based its decision upon a palpably incorrect or
    irrational basis or failed to consider or appreciate probative, competent
    evidence. The court did not abuse its discretion in denying reconsideration
    under Rule 4:50-1(f), because plaintiff did not establish truly exceptional
    circumstances. Rather, the case presented a not uncommon instance of a litigant
    missing multiple discovery deadlines. The trial court acted well within its
    discretion in denying plaintiff's motion for relief from the summary judgment.
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    7
    Affirmed.
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    8