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Original Wordprocessor Version This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5574-04T55574-04T5 KENIA ALVES, Plaintiff-Appellant, v. PAUL H. ROSENBERG, M.D., Defendant-Respondent. _______________________________

Submitted March 20, 2006 - Decided April 19, 2006 Before Judges Lintner and Gilroy. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0705-04. Bendit Weinstock, attorneys for appellant (William L. Gold, on the brief). Amdur, Maggs & McGann, attorneys for respondent (Richard A. Amdur, of counsel and on the brief). PER CURIAM This is a medical malpractice action. Plaintiff, Kenia Alves, a Brazilian citizen, filed a complaint on October 2, 2003, alleging negligence against defendant, Paul H. Rosenberg, M.D., after plaintiff received third-degree burns during a hair removal procedure performed by defendant. Plaintiff appeals from the order of the Law Division entered on April 15, 2005, denying a request for reconsideration of the court's order of March 18, 2005, that denied her application for a stay of proceedings, and from the order of May 13, 2005, granting summary judgment to defendant. We reverse and remand. The matter was assigned to Track III, Rule 4:5A-1, and allotted 450 days discovery, Rule 4:24-1. Plaintiff answered

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initial interrogatories, and counsel agreed to the scheduling of both parties' depositions, with plaintiff's deposition to proceed first. Defendant served notice, on January 30, 2004, to take plaintiff's deposition on March 30, 2004. Plaintiff's counsel advised defendant by letter dated February 6, 2004, that plaintiff was out of the country, intending to return in late July, and requested that plaintiff's deposition be adjourned accordingly. Defendant agreed, rescheduling the deposition for September 8, 2004. By letter dated July 26, 2004, plaintiff's counsel advised defendant that plaintiff was in Brazil, and was "not . . . able to come back to this country until January because of some visa complications. With your consent, I would like to write to the Court to have the matter stayed until she returns so that we do not run into a problem with the discovery end date." With consent of defendant, plaintiff's counsel wrote to the court advising of plaintiff's visa complications, and requested that the matter be stayed "pending her return, at which point we will complete discovery, exchange expert reports and be ready for trial." The request was denied by the Team Leader. With the discovery end date of April 6, 2005, approaching, and defendant having filed a motion for summary judgment for failure of plaintiff to produce an expert report, plaintiff filed a motion for a stay of proceedings, pending her return to the United States. When filing the motion, plaintiff's counsel's cover letter advised the court that "[p]laintiff is a Brazilian citizen currently living in Brazil who recently married an American citizen. Visa restrictions preclude her return to the United States until May, at the earliest. Based upon that, we hereby request a stay . . . pending plaintiff's return." Although plaintiff's motion was not opposed, it was denied on the papers by order of March 18, 2005, without "a statement of reasons" attached, Rule 1:6-2(f). In the interim, at request of plaintiff, defendant withdrew his motion for summary judgment pending plaintiff's return to the United States. However, after service of a copy of the March 18, 2005, order denying the stay of proceedings, defendant re-filed his motion for summary judgment. Plaintiff moved for reconsideration of the order of March 18, 2005, with her notice advising that it would be returnable on April 29, 2005. Notwithstanding the notice return date, the judge considered plaintiff's motion on the papers, and denied the motion by order of April 15, 2005, determining "no change in circumstances." At request of plaintiff, the judge re-listed the motion for reconsideration for May 13, 2005, the same return date as defendant's motion for summary judgment. On May 13, 2005, the parties appeared on the motion for reconsideration. At time of argument, plaintiff's counsel stated: Judge, as I [have] indicated in my papers, my client is a Brazilian citizen. She married an American which, for reasons that are obscure to me, that complicated her immigration status[,] and she [has] been unable to get a visa and she [is] stuck in Brazil.

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Accordingly, we [have] been unable to produce her for a deposition. Defendant, legitimately, has not produced his client for a deposition. I [have] been unable[,] therefore[,] to get an expert report. There [is] -- immediately after Your Honor hears this, defendant has properly filed a motion for summary judgment because I do [not] have an expert report. So it [is] an incredible catch twenty[-]two that my client, through no fault of her own, can [not] be produced for a deposition and then we can [not] do the deposition of the defendant and then we can [not] get an expert report. After suggesting that plaintiff could have been deposed by way of video conferencing and that there was no legitimate reason for not proceeding with defendant's deposition in the interim, the judge advised counsel that if he were still sitting in Civil, under those circumstances, he would have ordered a date certain for the deposition of defendant. The judge denied the motion stating: [T]here is no basis in our rules to place something into suspension just because there [is] an unusual circumstance. There is for military, there is for bankruptcy. And during these proceedings[,] a deposition by video link could have been taken[,] and the deposition of the defendant could have been ordered. So it does [not] necessarily have to stop discovery[,] and therefore[,] I am considering this motion -- reconsidering the motion the same way, I [am] denying it. With the motion for reconsideration of the stay denied, a second Law Division judge granted defendant's motion for summary judgment "based on plaintiff's failure to submit any expert report/testimony which demonstrates that defendant deviated from accepted standards of medical practice." A confirmatory order was entered the same date, and this appeal followed. Plaintiff's motion for a stay of proceedings was filed on March 1, 2005, a month prior to the discovery end date, April 6, 2005. Counsel's cover letter advised that plaintiff was seeking a stay of proceedings pending her return to the United States which was anticipated in "May, at the earliest." The stay was requested to allow the parties to complete depositions and for plaintiff to serve her liability expert report. In lieu of requesting a stay, plaintiff should have sought an extension of the court-sanctioned discovery period by consent for a period of sixty days to June 5, 2005, Rule 4:24-1(c). The sixty-day extension of court-sanctioned discovery is automatic with the consent of the adversary and permits the parties to avoid motion practice. If defendant refused consent, or if a longer or an additional extension of the discovery period was required, plaintiff could have filed a motion seeking an extension of the discovery period for good cause, provided the motion had been filed and made returnable prior to the expiration of the prior discovery period. Ibid. We are satisfied that a non-voluntary absence from the jurisdiction, due to visa complications following plaintiff's marriage to an American citizen, constitutes good cause for a reasonable extension of the discovery period. Ibid. Unfortunately, plaintiff's motion was not so phrased. At time of argument on plaintiff's motion for reconsideration, the motion judge recognized that if either of the
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parties had requested a case management conference, the discovery issues could have been addressed by the court granting an extension of the discovery period, directing that plaintiff submit to a deposition by video conference, Haynes v. Ethicon, 315 N.J. Super. 338 (Law Div. 1998), or directing that defendant's deposition proceed prior to plaintiff's, Rule 4:10-4. Although the motion judge recognized that the court had the inherent authority to direct the proceedings if it had been case managed, he mistakenly believed that he was without authority to act because "there is no basis in our rules to place something into suspension just because there [is] an unusual circumstance. There is for military, there is for bankruptcy." While there are only a few exceptional reasons for the removal of a civil matter from the active trial list where the case will no longer age statistically, e.g., placing a matter on the military list, Rule 1:13-6, a trial judge may always stay a proceeding as part of case management, Rule 4:5B-2. The difference, however, is if a matter is stayed solely for case management purposes, it will not be placed on the inactive list, and will continue to age statistically. We are satisfied that if plaintiff's counsel had either obtained an automatic sixty-day extension of the discovery period or moved for an extension of discovery period beyond sixty days by formal motion, Rule 4:24-1(c), the issue would have been resolved. The Draconian sanction of dismissal of the complaint should not have been imposed for failure to move for the proper relief. "[C]ourts should be reluctant to penalize a blameless client for the mistakes of the attorney." Familia v. Univ. Hosp. of Univ. of Med. & Dentistry of N.J., 350 N.J. Super. 563, 568 (App. Div. 2002). Here, the denial of plaintiff's motion for a stay resulted in the grant of the motion for summary judgment dismissing her complaint. Accordingly, we reverse both orders denying the stay of proceedings and granting summary judgment. We remand to the trial court to conduct a case management conference pursuant to Rule 4:5B-2, and enter a case management order determining the order of proceedings for any outstanding discovery, and fix a new discovery end date in the matter. Reversed and remanded for further proceedings in accordance with this opinion.

(continued) (continued) 8 A-5574-04T5 April 19, 2006

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