ALTON NICHOLS VS. DUKE LINDEN, LLC VS. CARUSO LANDSCAPING (L-0971-18, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3903-19

ALTON NICHOLS,

Plaintiff-Respondent,

v.

DUKE LINDEN, LLC, DUKE

REALTY LIMITED

PARTNERSHIP, DUKE

REALTY CORPORATION,

BRIGHTVIEW LANDSCAPES,

LLC, and CARUSO

LANDSCAPING,

Defendants-Appellants,

and

WAYFAIR, LLC, and WAYFAIR,

INC.,

Defendants,

and

BRIGHTVIEW LANDSCAPING,

LLC,

Defendant/Third-Party

Plaintiff,

v.

CARUSO LANDSCAPING

and INTERNATIONAL

INSURANCE COMPANY

OF HANNOVER,

Third-Party Defendants.

Argued November 5, 2020 - Decided July 15, 2021

Before Judges Ostrer and Accurso.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Union County,

Docket No. L-0971-18.

Harry D. McEnroe argued the cause for appellants

(Tompkins, McGuire, Wachenfeld & Barry, LLP,

attorneys for BrightView Landscapes, LLC; Haworth

Barber & Gertsman, LLC, attorneys for Duke Linden,

LLC, Duke Realty Limited Partnership, and Duke

Realty Corporation; Gage Fiore, LLC, attorneys for

Caruso Landscaping, LLC; Harry D. McEnroe, Richard

Barber, and Stephen G. Purcell, of counsel and on the

joint briefs).

Gregg S. Sodini argued the cause for respondent

(Cutolo Barros, LLC, and Robert K. Marchese,

attorneys; Gregg S. Sodini and Robert K. Marchese, on

the brief).

PER CURIAM

A-3903-19

2

In this personal injury action, defendants Duke Linden, LLC, Duke Realty

Limited Partnership, Duke Realty Corporation, BrightView Landscapes, LLC,

and Caruso Landscaping, LLC appeal, on leave granted, from an order denying

their motions for summary judgment without prejudice, sua sponte extending

discovery to permit plaintiff Alton Nichols to submit an "updated report" from

his medical expert, and adjourning the trial date, all pursuant to Rule 1:1-2, the

court rule permitting relaxation of the rules in the interest of justice. Because

there is no basis for application of Rule 1:1-2 here, we vacate the order and the

one denying defendants' motions for reconsideration and remand for the court

to decide the summary judgment motions on the record as it stood when they

were presented.

The essential facts are easily summarized. 1 Plaintiff slipped on snow and

ice while making a delivery to Wayfair's leased premises in Linden. The Duke

entities own the property. They contracted with BrightView to clear snow and

ice. BrightView subcontracted the work to Caruso. In his answers to

defendants' form interrogatories, plaintiff claimed the accident aggravated a pre-

existing condition to his left knee and lower back. He revealed he suffered from

1

Given our disposition, we have kept the facts to a minimum and have avoided

commenting on the proofs.

A-3903-19

3

bowed legs "bi-laterally" in childhood for which he was fitted with braces; had

a left knee arthroscopy performed in 2000; that an X-ray in 2010 showed

narrowing of the left medial joint compartment with central articular osteophyte

formation, as well as a slight lateral deviation above the patella and osteophytes

on the surface of the patella; and had a left knee medial meniscectomy in 2012.

Discovery was extended multiple times, with plaintiff's counsel certifying

to the court in connection with one of those extensions that "[p]laintiff has a

long medical history and has provided literally thousands of pages of records

from numerous healthcare providers and prior counsel for plaintiff in previous

litigations," and that he was still being treated for injuries suffered in the

accident. After discovery was finally closed, and arbitration and trial dates set,

defendants moved to dismiss plaintiff's damages claim and for summary

judgment.

Defendants contended the undisputed material facts demonstrated

plaintiff had undergone extensive prior treatment to his lower back and had

suffered from pre-existing issues in his left knee for at least twenty years. They

argued plaintiff's treating doctor failed to provide a sufficient comparative

analysis isolating the doctor's diagnosis of the injuries plaintiff suffered in this

accident from his prior injuries and conditions, making the doctor's conclusion

A-3903-19

4

that the accident precipitated plaintiff's total knee replacement no better than a

net opinion.

In response to the motions, plaintiff withdrew his claim that his back

injury was either caused or aggravated by this accident. As to plaintiff's knee,

however, counsel contended the doctor's reports referenced "relevant pre-

accident treatment and post-accident treatment," and "[a]ny further comparative

analysis is not required as to the left knee, as there was a total knee replacement"

post-accident.

In his oral decision on the motion, the judge found plaintiff's treating

doctor needed to provide a comparative analysis in accordance with Davidson

v. Slater, 189 N.J. 166, 186 (2007) (holding a plaintiff must "produce

comparative-analysis evidence to establish a prima facie aggravation of pre-

existing injuries cause of action"). The judge further found, "[h]owever," that

he was obligated to "provide a just determination in this case as in all cases,"

and that to grant summary judgment to defendants "would be to visit any ills of

the attorney upon the client" which he declared he was "not going to do."

Relying on Rule 1:1-2, the judge denied the motions without prejudice,

permitting plaintiff thirty days, later extended to ninety, "to provide an updated

report from [plaintiff's doctor] that includes an appropriate comparative

A-3903-19

5

analysis." The judge also provided time for defendants to submit responsive

supplemental reports and depose plaintiff's doctor should they wish, extended

discovery to accommodate those rulings and adjourned the scheduled arbitration

and trial dates.

Defendants moved for reconsideration, arguing the court didn't identify

the court rule it "relaxed," and its reliance on Rule 1:1-2 to rescue plaintiff from

his failure to adduce sufficient proofs to withstand summary judgment was

unprecedented and manifestly unjust to defendants. Defendants also argued that

plaintiff didn't seek a discovery extension, and even if he had, the court would

have been bound to deny it as arbitration and trial dates had been set and there

were no exceptional circumstances to justify extending discovery under Rule

4:24-1(c). The judge denied defendants' motions, declaring them "essentially

[a] re-argument of what was argued during the initial motions." 2

2

That is incorrect, as defendants' argument on reconsideration focused on their

view of the court's inappropriate resort to Rule 1:1-2(a) to deny their motions

for summary judgment, an issue neither briefed nor argued on the prior motion.

See Lawson v. Dewar, __ N.J. Super. __ (App. Div. May 27, 2021) (slip op. at

8) (noting "some reconsideration motions — those that argue in good faith a

prior mistake, a change in circumstances, or the court's misappreciation of what

was previously argued — present the court with an opportunity to either

reinforce and better explain why the prior order was appropriate or correct a

prior erroneous order").

A-3903-19

6

Defendants appeal, arguing the court's reliance on Rule 1:1-2 to deny their

summary judgment motions lacked any legal basis and ignored the prejudice to

them. Plaintiff, while maintaining the two reports of his treating doctor "clearly

allocate the cause of the need for his knee replacement . . . to the underlying

incident such that no supplemental report should have been required," 3 contends

the issue is simply whether a trial court has the authority to adjourn a trial date

and reopen discovery for the limited purpose of allowing a plaintiff to provide

a supplemental expert report "so a case can be disposed of on the merits instead

of on procedural grounds."

Our Supreme Court has instructed the purpose of the Court Rules is to

promote "reasonable uniformity in the expeditious and even administration of

justice." Ragusa v. Lau, 119 N.J. 276, 283 (1990) (quoting Handelman v.

Handelman, 17 N.J. 1, 10 (1954)). The first sentence of paragraph (a) of Rule

1:1-2, which Pressler and Verniero notes constituted the entirety of its original

text, provides the Rules are to be "construed to secure a just determination,

3

Defendants agree with plaintiff's statement that although the judge did "not

explicitly state that the reports of plaintiff's primary treating physician . . . we re

inadequate, the implication from the ruling . . . requiring submission of [a]

supplemental report is that the [two] reports [submitted] . . . did not provide the

requisite 'comparative analysis' report." We agree it would be difficult to read

the judge's ruling any other way.

A-3903-19

7

simplicity in procedure, fairness in administration and the elimination of

unjustifiable expense and delay." Pressler & Verniero, Current N.J. Court

Rules, cmt. 1 on R. 1:1-2 (2021). The trial court relied on the second sentence,

the "relaxation" provision: "Unless otherwise stated, any rule may be relaxed

or dispensed with by the court in which the action is pending if adherence t o it

would result in an injustice." R. 1:1-2(a).

The Court has endorsed Judge Pressler's view that the "relaxation

provision [of Rule 1:1-2] should be sparingly resorted to, particularly when a

reasonable interpretation of the complex of directly applicable rules meets the

problem at hand." Romagnola v. Gillespie, Inc., 194 N.J. 596, 604 (2008)

(quoting Pressler, Current N.J. Court Rules, cmt. 2 on Rule 1:1-2 (2007)). Here,

of course, there is a directly applicable rule. Rule 4:24-1(c) controls the

extension of discovery in the face of looming arbitration and trial dates. As the

Court has noted, "[t]he mandate of R. 4:24-1(c) could not be clearer: [a]bsent

exceptional circumstances, no extension of the discovery period may be

permitted after an arbitration or trial date is fixed." Szalontai v. Yazbo's Sports

Cafe, 183 N.J. 386, 396 (2005).

The court did not advert to Rule 4:24-1(c), or its requirement that only

exceptional circumstances will justify an extension of discovery after the

A-3903-19

8

establishment of arbitration or trial dates, and it appears plain that there were no

exceptional circumstances here. Plaintiff served his treating doctor's

supplemental report at the end of October 2019, and defendants promptly moved

for summary judgment two months later at the close of discovery to permit the

motion to be heard in accordance with Rule 4:46-1.

Further, there is no question but that this was always an aggravation case.

Plaintiff made that clear in his initial answers to form interrogatories. The law

has been well settled for at least a decade that a plaintiff pleading a cause of

action for aggravation of a pre-existing injury must produce as part of his prima

facie case comparative medical evidence to demonstrate "that the accident was

the proximate cause of the injury aggravation or new permanent injury to the

previously injured body part." Davidson, 189 N.J. at 185. The Court warned in

Davidson that "[s]uch evidence provides essential support for the pled theory of

a plaintiff's cause of action and a plaintiff's failure to produce such evidence can

result in a directed verdict for defendant." Id. at 186. Plaintiff's counsel was

well aware of the law, maintaining in the trial court, as he does on appeal, that

his doctor's reports satisfied his burden of allocating the need for defendant's

knee replacement to this accident.

A-3903-19

9

Both plaintiff and the trial judge refer to the decision here as simply a sua

sponte procedural extension of discovery to permit the case to be decided on the

merits. We cannot agree. This case was poised to be decided on the merits via

a fully briefed and argued motion for summary judgment. As the Supreme Court

has explained, Rule 1:1-2's "'catch-all' nature is not intended to serve as a cure-

all." Romagnola, 194 N.J. at 606. Although it may in appropriate circumstances

be applied to spare a client whose lawyer has made a procedural misstep in

prosecuting the client's case, see, e.g., Tucci v. Tropicana Casino & Resort, Inc.,

364 N.J. Super. 48, 51-52 (App. Div. 2003), it will not serve to relieve a plaintiff

of establishing an element of his prima facie case necessary to stave off summary

judgment dismissing his complaint. Serving the goal of a "just determination"

should not thwart the imperative of applying the Rules evenly to ensure "fairness

in administration and the elimination of unjustifiable expense and delay." R.

1:1-2.

Misapplying Rule 1:1-2 to relieve one side of an established and

anticipated burden on the merits risks the very serious consequence of calling

the court's impartiality into question. Thus, the guidance that "[f]ew cases

should qualify for such special relief," and the rule only "sparingly resorted to,"

where, as here, "a reasonable interpretation of the complex of directly applicable

A-3903-19

10

rules meets the problem at hand." Romagnola, 194 N.J. at 604, 607 (quoting

Pressler & Verniero, cmt. 2 on R. 1:1-2).

Because we are satisfied the trial court misapplied its discretion in

resorting to Rule 1:1-2(a) in this instance, we vacate the orders denying

defendants' motions for summary judgment and reconsideration and remand for

the judge to decide the summary judgment motions on the record as it stood on

the return date.

Reversed and remanded. We do not retain jurisdiction.

A-3903-19

11