SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3903-19
Plaintiff-Respondent,
v.
DUKE LINDEN, LLC, DUKE
REALTY LIMITED
PARTNERSHIP, DUKE
REALTY CORPORATION,
BRIGHTVIEW LANDSCAPES,
LLC, and CARUSO
LANDSCAPING,
Defendants-Appellants,
and
WAYFAIR, LLC, and WAYFAIR, INC.,
Defendants,
and
BRIGHTVIEW LANDSCAPING,
LLC,
Defendant/Third-Party
Plaintiff,
v.
CARUSO LANDSCAPING and
INTERNATIONAL INSURANCE COMPANY
OF HANNOVER,
Third-Party Defendants.
______________________________________
Argued November 5, 2020 – Decided July 15, 2021
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark
Plaintiff slipped on snow and ice while delivering items to Wayfair’s leased premises in Linden. The Duke entities own the property that Wayfair leases. Duke contracted with Brightview to clear snow and ice and Brightview subcontracted the work to Caruso. Plaintiff claimed the accident aggravated pre-existing condition to his left knee and lower back. Plaintiff revealed he suffered from bowed legs in childhood and how doctors performed arthroscopy surgery in 2000. Also, there is an x-ray in 2010 which showed narrowing of the left medial joint compartment with central articular osteophyte formation. There was a slight lateral deviation above the patella and finally had a left knee medial meniscectomy in 2012. In this case, discovery was extended multiple times for plaintiff to certify to the court his injuries were worsened by the slip and fall even though he was still receiving treatment for his prior existing injuries. Defendants argued the plaintiffs treating doctor failed to provide sufficient evidence to prove his injuries were worse than that by the slip and fall. After defendant filed a few motions, plaintiff withdrew his claim about his back being worsened by this incident however his claim for his left knee were still being pursued. Plaintiff argued no comparative analysis is required for the left knee since there is a total knee replacement which is enough evidence to prove the fall worsened his preexisting injury.
In oral argument the judge found plaintiff’s treating doctor needed to provide a comparative analysis. Relying on Rule 1:1-2 the judge denied the motions without prejudice permitting plaintiff 30 days to provide an updated report that included appropriate comparative analysis. The judge also provided time for defendants to submit responsive supplemental reports and depose plaintiff’s doctor should they wish. Defendant moved for reconsideration arguing the court did not identify the court rule and its reliance on Rule 1:1-2 to rescue plaintiff from his failure to reduce sufficient proof to stand summary judgment. Defendants also argued plaintiff did not seek a discovery extension and even if they had the court should have rejected it because arbitration dates have been set and there were no exceptional circumstances to justify extending discovery. The judge denied these motions. Stating them essentially repetitive to prior arguments they made.
Defendants appeal the judge’s rejection of the motions containing the courts reliance on Rule 1:1-2. Defendant argued the denial of summary judgment motion lacked any legal basis and ignored the prejudice to them. The defendant contended the issue in this case is whether a trial court has the authority to reopen discovery for the limited purpose of allowing planet to provide a supplemental expert report. The appellate court states that misapplying Rule 1:1-2 to relieve one side of an established and anticipated burden on the merits risk the very serious consequence of calling the courts impartiality into question. This rule is used when an attorney makes a mistake for a client but cannot be used to make a prima facie case. This rule is used in a few cases which are only for special relief. The appellate court vacated the orders denying defendants motion for summary judgment and reconsideration and remanded for the judge to decide the summary judgment motions on the record as it stood on the return date. The decision is reversed and remanded.