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Szalontai v. Yazbo's Sports Cafe5/26/2005
s opposed plaintiff's motion for an extension of the discovery deadline so as to allow the new expert report and separately cross-moved to bar proof of that report at trial. Both plaintiff's motion and defendants' cross-motions were returnable on June 7, 2002. The trial court denied plaintiff's motion to extend the discovery deadline, reasoning that, because the arbitration in this case had already been held, the standard plaintiff was required to meet under Rule 4:24-1(c) was a showing of exceptional circumstances, a showing plaintiff did not make. More generally, the trial court explained that "allowing discovery to reopen at this point . . . would be using the arbitration procedure as almost a screening event to figure out where the weaknesses are" and, hence, cannot be countenanced. Consistent with that ruling, the trial court also ordered that the testimony of the late-tendered expert was barred at trial.
Trial did not start on its first scheduled July 22, 2002 date. Instead, on October 22, 2002, plaintiff moved for an Order (1) reconsidering the denial of plaintiff's request to extend the discovery deadline, (2) reconsidering the bar against plaintiff's civil engineering expert witness at trial, (3) extending yet again the discovery period to allow an amendment to plaintiff's earlier answers to interrogatories so as to include a new expert report from a new physician, (4) seeking an in limine finding that res ipsa loquitur governed this case, and (5) " arring any testimony and/or evidence at the time of trial on behalf of efendants concerning the underlying reason for the existence of the hole in which laintiff fell."
Defendants substantively responded to plaintiff's motion; Anco also cross-moved for summary judgment based on a failure of proof causally linking Anco decommissioning and filling work on an underground storage tank not located where plaintiff was injured to plaintiff's injuries. On November 18, 2002, the trial court denied plaintiff's request for reconsideration of the earlier order denying an extension of the discovery deadline and barring plaintiff's civil engineering expert from the trial. The trial court also denied, albeit without prejudice, plaintiff's in limine request for a finding that res ipsa loquitur governed this case. The trial court granted plaintiff's motion for leave to amend his answers to interrogatories so as to allow a new physician's report, but also allowed defendants the right to submit responsive medical reports. Finally, the court granted Anco's cross-motion for summary judgment and dismissed all claims against it, explaining that " here is nothing here for a rational factfinder to hold that Anco was negligent, or that [it was] responsible in any way for the happening of this accident." As a result, only plaintiff's claims against the property owner/operator defendants (Yazbo's Sports Café and one of its owners (Haberle), and Yazbo's Sports Café's predecessor Simko's Pub and its prior owner (Simko)) remained for trial.
At trial, based on the grant of summary judgment in favor of Anco, the property owner/operator defendants moved to preclude any evidence of a causal link between the underground storage tank and plaintiff's injuries. The trial court agreed and barred any such proofs. At the close of plaintiff's case on November 20, 2002, the property owner/operator defendants moved for an involuntary dismissal under Rule 4:37-2(b), claiming that plaintiff's liability proofs consisted solely of two facts - -that plaintiff was walking through the parking lot at Yazbo's Sports Café and that a hole suddenly opened below plaintiff's right foot - - and that these two facts were insufficient. On finding that the two facts do not "bespeak negligence
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