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Farrell v. TCI of Northern New Jersey6/20/2005
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
APPROVED FOR PUBLICATION
Argued May 18, 2005
Before Judges Axelrad, Holston, Jr. and King.
Plaintiffs, Harry F. Farrell (Farrell) and Doris V. Farrell, appeal the Law Division's March 8, 2004 order denying their motion to restore their case to the trial calendar. We are convinced that the court mistakenly exercised its discretion in denying the motion. We reverse and remand the case to the trial court.
The complaint and jury demand in this personal injury negligence action was filed on May 14, 1997. Plaintiff claims that he incurred personal injuries on April 22, 1997, proximately caused by defendant, James Rivera (Rivera), who was driving a 1995 GMC Van owned by and with the permission of defendant, TCI of Northern New Jersey Tele-Communications, Inc. (TCI). Plaintiff alleges that he sustained serious personal injuries when, after having been stopped at a red light, he proceeded slowly into an intersection on his motorcycle after the traffic light had turned green for his direction and was hit by TCI's speeding cable truck being driven by Rivera. Plaintiff claims Rivera ignored the red light in his direction.
The parties engaged in extensive discovery of the two plaintiffs, Larry Homsany (Homsany), who was a motorist waiting directly in line at the red light behind plaintiff, the traffic reconstruction experts, economic experts, employability experts and several medical experts. Discovery continued into 2000.
Unknown to any party was the fact that on January 6, 1999, a court-generated order dismissing the complaint and suppressing defenses was entered by the court, pursuant to Rule 4:21A-4(f), for the parties' failure to appear for mandatory arbitration on that date. However, the court failed to issue any notice of the arbitration and failed to provide notice of the dismissal order to any of the parties.
Thereafter, the court entered three discovery orders, all of which were served on the parties, thereby indicating that the case was still active. The last order was entered on July 8, 1999.
According to the certifications made to the court by plaintiff and plaintiffs' counsel, plaintiff fell and injured his left elbow in February 2000 as a result of the limp that he had developed after six surgical procedures he incurred for injuries to his left foot sustained in the accident. Because plaintiffs' counsel felt there might be medical malpractice in the treatment of plaintiff's elbow, counsel sent plaintiff's medical records to an orthopedist for review, anticipating the need to amend the complaint if medical malpractice were determined by the orthopedic consultant. However, the absence of malpractice was confirmed by the orthopedist's medical opinion dated March 22, 2001.
On April 26, 2001, defendants' counsel's office contacted the court to determine the status of the case since no correspondence, discovery or communication on the file was exchanged since May 24, 2000 and no communication regarding arbitration or trial had been received from the court. The court advised that the matter was dismissed on January 6, 1999. In October 2001, defendants' counsel requested a copy of the dismissal order from the court. In November 2001, defendants' counsel received a copy of the order of dismissal but failed to serve it upon plaintiff despite the "NOTE" contained in the order expressly directing that the attorney receiving the order shall serve it on all interested parties within seven days. Defense counsel did not inform plaintiffs' counsel that he had been informed by the clerk that the case was dismissed nor did he c
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