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(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE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-4416-09T4
TOM L. MOLNAR, EXECUTOR
FOR THE ESTATE OF ALEX S.
MOLNAR,
Plaintiff-Appellant,
v.
LLMD ASSOCIATES, LLC
d/b/a WATER'S EDGE HEALTH CARE &
REHABILITATION CENTER, WATER'S
EDGE, INC.,
Defendants-Respondents.
April 8, 2011
Argued March 2, 2011 - Decided
Before Judges Sapp-Peterson and Simonelli.
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On appeal from the Superior Court of New Jersey, Law Division, Mercer County,
Docket No. L-1432-07.
Joseph B. Silverstein argued the cause for appellant (Green, Silverstein & Groff,
L.L.C., attorneys; Mr. Silverstein and Meaghan P. Londergan, on the brief).
Walter F. Kawalec, III, argued the cause for respondents (Marshall, Dennehey,
Warner, Coleman & Goggin, attorneys; Philip J. Anderson and Mr. Kawalec, on
the brief).
PER CURIAM
In this malpractice action, plaintiff Tom Molnar appeals from three Law Division orders: (1) the February 18,
2010 order granting summary judgment to defendant LLMD Associates, LLC d/b/a Water's Edge Health
Care & Rehabilitation Center (Water's Edge) and dismissing the complaint with prejudice; (2) the February
24, 2010 order denying his motion to extend discovery; and (3) the April 23, 2010 order denying his motion
for reconsideration of the February 18 and 24, 2010 orders. We affirm.
Plaintiff, through counsel, filed a complaint on June 8, 2007, alleging that negligent treatment of his father
at Waters Edge from June to September 2005 ultimately resulted in the man's untimely death. Defendant
filed an answer on August 10, 2007. The matter was assigned to Track III, which has a 450-day discovery
period. During the next two years, counsel continued representing plaintiff and the parties exchanged
written discovery and conducted depositions. On plaintiff's motion,1 the court entered an order on April 3,
2009, extending discovery to August 7, 2009.
On April 14, 2009, plaintiff's counsel filed a motion to be relieved. On May 1, 2009, the court entered an
order granting the motion and ordering plaintiff to notify the court of his new counsel no later than May 31,
2009. Plaintiff did not comply with the May 31, 2009 order, nor did he pursue further discovery or serve an
expert report.
After the expiration of the August 7, 2009 discovery end date, defendants filed a summary judgment motion
based on plaintiff's failure to serve an expert report. In response, plaintiff filed a pro se motion to extend
discovery seeking additional time because of his alleged difficulty retaining new counsel. In order to
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accommodate plaintiff, Judge Hurd entered two orders: one on September 3, 2009, extending discovery to
January 4, 2010, and the second on September 10, 2009, denying defendants' summary judgment motion
without prejudice.
Plaintiff did not pursue discovery or serve an expert report during the second extension period. After
expiration of the second discovery end date, defendants filed a summary judgment motion based on
plaintiff's failure to serve an expert report. The motion was returnable before Judge Hurd on February 5,
2010. Plaintiff did not oppose the motion; instead, he filed another pro se motion to extend discovery,
returnable before Judge Innes on February 5, 2010.
Judge Innes notified the parties that he would carry plaintiff's motion to, and conduct a case management
conference on, February 8, 2010. Judge Hurd subsequently adjourned defendants' summary judgment
motion pending disposition of the motion to extend discovery.
Plaintiff failed to appear at the case management conference. As a result, Judge Innes denied plaintiff's
motion to extend discovery concluding he had "ample and adequate notice" of the conference but failed to
appear, and "[t]his case has been the subject of other problems with regard to compliance by the plaintiff."
On February 24, 2010, the judge entered an order memorializing his decision.
In the meantime, Judge Hurd entered an order on February 18, 2010, granting defendant's unopposed
summary judgment motion and dismissing the complaint with prejudice. The judge concluded, in part, that
plaintiff failed to provide expert evidence setting forth the appropriate standard of care or deviation, and
there was "no indication . . . that plaintiff intends to present the testimony of an expert at anytime soon."
Plaintiff filed a pro se motion for reconsideration of the denial of his motion to extend discovery. Judge Hurd
entered an order on March 8, 2010,2 denying the motion and concluding that
other than plaintiff's recounting of the number of firms who have declined to
represent him in this matter, there is little more in plaintiff's papers, other than
repeated assertions that plaintiff has been a victim of defense counsel's continual
and intentional deception.
Judge Innes, no doubt, took into account all that was contained in both parties'
papers prior to deciding the motion. Assuming that this is the information that
plaintiff intended to present on the papers, it would have been substantially the
same as what was already submitted with the papers.
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Therefore, Judge Innes' decision did, likely, take into account most of the
information again presented here by defendant. As such, plaintiff fails to assert
any additional facts or evidence that would constitute grounds for the [c]ourt to
reconsider its denial of a motion for extending discovery. And, there's no
indication that the decision of Judge Innes was palpably incorrect. So, I will deny
the motion.
Plaintiff then filed a second pro se motion for reconsideration of the denial of his motion to extend
discovery, and also sought reconsideration of the grant of summary judgment. Prior to the disposition of
the motions, plaintiff retained new counsel, who entered an appearance on April 1, 2010. Counsel did not
argue that the court's prior decisions were palpably unreasonable or irrationally based, and he presented
nothing new for the court's consideration. Rather, counsel argued that the basis on which the court granted
summary judgment--the lack of an expert report--"is largely procedural, not substantive, and was due in
large part to plaintiff's lack of legal knowledge as a pro se litigant." Counsel also argued there was good
cause to extend discovery, and plaintiff should be permitted an additional ninety days to complete
discovery.
Applying the reconsideration standard, Judge Hurd entered an order on April 23, 2010, denying the motion
to reconsider the grant of summary judgment concluding the matter originated over two-and-one-half
years ago, and the basis on which summary judgment was granted "remains unchanged in that plaintiff did
not provide expert evidence to establish the breach of care." The judge also denied plaintiff's motion to
reconsider the denial of the motion to extend discovery concluding that
the [c]ourt indulged plaintiff's request for extensions in discovery three times,
specifically to allow him to seek new counsel. Plaintiff's current moving papers
seem to completely ignore the fact that plaintiff's failure to secure new counsel
was . . . a failure to comply with not one, but two prior orders by the [c]ourt. On
the return date of this motion, in fact, one year's time total will have elapsed
since the [c]ourt entered its first order, both directing plaintiff to find new
counsel and extending him additional time to do so. In all that time plaintiff
made no effort at all to pursue discovery from the defendant, no matter that he
was proceeding pro se and attempting to secure new counsel.
The fact remains that plaintiff has failed to assert any additional facts or
evidence that could not have been, and indeed were not already presented in
support of [his] earlier motions. The arguments in plaintiff's new [motion] papers
still rely on facts regarding plaintiff's lack of legal [know-how] and unsuccessful
attempts to secure new counsel.
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This appeal followed.
On appeal, plaintiff contends that Judges Innes and Hurd abused their discretion by denying his motion to
extend discovery and granting summary judgment, and Judge Hurd abused his discretion in denying
reconsideration. We disagree.
This court "generally defer[s] to a trial court's disposition of discovery matters unless the court has abused
its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC
P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005).
Plaintiff's motion to extend discovery beyond the second extension is governed by Rule 4:24-1(c). Because
no arbitration or trial date had been set, the standard is good cause, not exceptional circumstances. Tynes
v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 168 (App. Div.) certif. denied, 200 N.J. 502 (2009).
Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80 (App. Div. 2007) sets forth the factors that guide the
trial court's exercise of discretion in determining good cause:
[F]or an extension of discovery in the absence of a fixed arbitration or trial date,
there are a number of factors which a trial court should consider. The include,
but are not limited to, the following:
(1) the movant's reasons for the requested extension of discovery;
(2) the movant's diligence in earlier pursuing discovery;
(3) the type and nature of the case, including any unique factual issues which
may give rise to discovery problems;
(4) any prejudice which would inure to the individual movant if an extension is
denied;
(5) whether granting the application would be consistent with the goals and aims
of "Best Practices";
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(6) the age of the case and whether an arbitration date or trial date has been
established;
(7) the type and extent of discovery that remains to be completed;
(8) any prejudice which may inure to the non-moving party if an extension is
granted; and
(9) what motion have been heard and decided by the court to date.
[Id. at 87-77; see also Tynes, supra, 408 N.J. Super. at 169-70.]
Considering these factors, we cannot conclude that the denial of a third extension was an abuse of
discretion. The reason for the requested extension--plaintiff's difficulty obtaining new counsel--did not
absolve him of the duty to comply with the Rules of Court, the discovery end dates established by court
orders, and to pursue discovery and serve an expert report. See In re Estate of Schifftner, 385 N.J. Super.
37, 44 (App. Div.), certif. denied, 188 N.J. 356 (2006); Venner v. Allstate, 306 N.J. Super. 106, 110 (App.
Div. 1997
There also was a lack of diligence by plaintiff. Plaintiff pursued no discovery whatsoever during the two
extensions, and did not retain an expert or serve an expert report despite possessing an affidavit of merit.
In fact, as of the date of oral argument of this appeal, plaintiff still had not retained an expert. Also, in
violation of Rule 4:24-1(c), the motion before Judge Innes to extend discovery a third time was returnable
after the expiration of the discovery period and, more importantly, after defendant had already moved for
summary judgment a second time.
Plaintiff does not claim there are unique factual issues which may give rise to discovery problems, and there
is no dispute that the granting of a third extension is inconsistent with the goals and aims of Best Practices
to "restore the public's faith in expeditious and efficient litigation and to control dilatory litigation tactics by
providing the trial courts with tools to manage litigation." Leitner, supra, 392 N.J. Super. at 91.
Further, this case is very old. The incident forming the basis of plaintiff's malpractice claim occurred nearly
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five years before Judge Hurd denied reconsideration, and the case was nearly three years old at that time.
This extraordinary lapse of time is prejudicial to defendant, as memories fade over time and a number of
defendant's employees have left Waters Edge.
As for the discovery that remains to be completed, plaintiff has yet to retain an expert or serve an expert
report; defendant has not been afforded the opportunity to serve an expert report; and depositions of
defendant's employees who possess knowledge of the incident and the experts must occur. Clearly, more
than ninety days is necessary to complete this discovery.
Finally, the court twice extended discovery in order to afford plaintiff more time to retain new counsel and
complete discovery. In total, the court gave plaintiff over 850 days to complete discovery.
As for of summary judgment, we conclude it was properly granted. It is well-established that dismissal is
proper where, as here, the plaintiff failed to produce expert evidence establishing a duty of care, a breach
of that duty, and resulting damages. Gardner v. Pawliw, 150 N.J. 359, 375 (1997);
Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961); Rosenberg v. Tavorath, 352 N.J. Super. 385, 399 (App.
Div. 2002).
Affirmed.
1 Plaintiff did not include this motion in his appendix, and thus, we do not know why he sought an
extension.
2 Plaintiff does not appeal from this order.
This archive is a service of Rutgers School of Law - Camden.
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