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Szalontai v. Yazbo's Sports Cafe5/26/2005
parties engaged in limited discovery, significantly only after the original discovery period had expired. Other than form interrogatories and six supplemental interrogatories with concomitant requests for production of documents propounded on January 7, 2001, no other discovery -- -no fact depositions, no site inspections, no expert reports or depositions -- - was propounded. Significantly, although plaintiff's second supplemental interrogatory asked " as any work done at any time on any underground tanks located below the property on which defendant's premises are located," plaintiff never sought to link causally the existence of any underground tank, and any work associated with the tank, to the spot where plaintiff was injured.
On April 23, 2002, twelve days after the extended discovery period expired, the case was arbitrated pursuant to the mandatory arbitration provisions of Rule 4:21A-1(a)(2). At the arbitration, plaintiff relied on the doctrine of res ipsa loquitur to establish liability against all defendants. In defense, Simko, the prior owner, testified that he did not recall making any repairs to the parking lot during the time he owned the property. Bello, one of the current owners, testified that there had been no construction, repaving or other work in the parking lot from the time he purchased the property from Simko until plaintiff's injuries, and that none of the many patrons and delivery and service personnel who used the parking lot ever complained about its condition. Bello confirmed that he would, from time to time when outside, check on the condition of the parking lot and never saw the need for repairs. Anco also put forth proofs at the arbitration, essentially to the effect that its decommissioning and filling work for the underground storage tank on Yazbo's Sports Café's property was nowhere near the spot where plaintiff fell.
At the conclusion of the arbitration, the arbitrator entered an award in favor of defendants and against plaintiff. Pursuant to Rule 4:21A-6(b)(1), plaintiff rejected the arbitration award and demanded a trial de novo. However, realizing his failure of proof, plaintiff finally secured the services of an expert civil engineer and, on May 16, 2002, forwarded a civil engineering expert report to defendants. Because the discovery period had expired over a month before, on May 20, 2002, plaintiff also sought leave of court to extend the discovery period for yet an additional sixty-day period. According to the certification of plaintiff's counsel,
laintiff believed that this was a res ipsa loquitur case. However, the matter proceeded to arbitration less than a month ago. At that time and for the first time, defendants indicated that the tank decommissioning work might not have been done under the spot where plaintiff sustained his injury. Also the arbitrator did not deem this a res ipsa loquitur case which plaintiffs believe to be an erroneous determination.
On the basis that the information disclosed by defendants in the arbitration, information that clearly would have been disclosed had any depositions been taken in this case, was somehow newly discovered and that defendants' failure to affirmatively defend the lawsuit by asserting that the underground storage tank was not located where plaintiff was injured, plaintiff claimed he was "entitled to obtain an expert and serve a report based on this new discovery." More striking is plaintiff's assertion that, supposedly based on this claimed newly-discovered evidence, "several individuals, including the plaintiff, need to be deposed." On the same day plaintiff filed this motion, the trial court listed the case for trial on July 22, 2002.
Not surprisingly, defendant
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