                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5342-16T1

GUERLANDE JEAN,

          Plaintiff-Appellant,

v.

SAINT BARNABAS MEDICAL
CENTER, a/k/a SAINT
BARNABAS HEALTH, PARASH
PARAGI, M.D., RONALD
CHAMBERLAIN, M.D., and
SYED AMMER SHAH, M.D.,

     Defendants-Respondents.
________________________________

                    Submitted August 30, 2018 – Decided September 21, 2018

                    Before Judges Rothstadt and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-6446-15.

                    Law Offices of James C. Dezao, PA, attorneys for
                    appellant (James C. DeZao, on the briefs).

                    Vasios, Kelly & Strollo, PA, attorneys for respondents
                    (Lauren M. Strollo, of counsel; David W. Badie, on the
                    brief).
PER CURIAM

      In this medical malpractice action, plaintiff Guerlande Jean appeals from

the Law Division's June 23, 2017 order denying her Rule 4:50-1 motion to

vacate a May 12, 2017 order granting summary judgment to defendants Saint

Barnabas Medical Center, also known as Saint Barnabas Health, Parash Paragi,

M.D., Ronald Chamberlain, M.D., and Syed Ammer Shah, M.D., and dismissing

plaintiff's complaint with prejudice. The motion judge denied plaintiff's motion

after concluding that plaintiff's explanation for her failure to diligently pursue

the discovery that should have been produced in opposition to defendants'

motion, did not satisfy plaintiff's obligation to establish exceptional

circumstances necessary to vacating the judgment. We affirm.

      We need not set forth the details of plaintiff's negligence claims as the

issue before us relates to the conduct of the litigation, rather than her allegations

of negligence. Suffice it to say, plaintiff alleged that after being admitted to

Saint Barnabas and undergoing surgery related to her gall bladder, defendants'

negligence caused her to suffer various serious injuries for which she sought

damages by filing her complaint on September 14, 2015. In January 2016,

defendants filed a joint answer. Discovery demands were served by both parties,

but by the time defendants filed their motion for summary judgment in April


                                                                             A-5342-16T1
                                         2
2017, plaintiff never responded to any discovery demands. Significantly, by

that time, plaintiff had not served any experts' reports.

      It was on that basis that defendants moved for summary judgment, arguing

"[p]laintiff has failed to serve expert reports to establish liability and proximate

cause as is required under the relevant statutory and case law." Defendants filed

their motion for summary judgment on April 11, 2017, just after the April 9,

2017 discovery end date. According to a trial notice attached to defendants'

counsel's supporting certification, the court had sent notices to all counsel on

April 10, 2017 fixing June 19, 2017 as the trial date.

      In opposition to defendants' motion, on May 2, 2017, plaintiff filed her

attorney's certification and a "memorandum in opposition to defendants'

motion . . . and in support of cross motion to reopen and extend" discovery or

"for a case management conference." However, plaintiff did not file a cross-

motion seeking any relief.

      In his certification, counsel stated that plaintiff served answers to

interrogatories and expert reports on April 27, 2017. He acknowledged that

discovery expired on April 9, 2017, and explained that "[d]ue to circumstances

beyond [p]laintiff's control," counsel "inadvertently" did not "move to extend

[discovery] even though signature pieces of discovery remained outstanding."


                                                                            A-5342-16T1
                                         3
Although counsel provided no further explanation for the delay in responding to

discovery demands, he added that "[t]here was no intention to mislead or

prejudice the [d]efendants in the failure to serve an expert report until April 27,

2017." Counsel also noted that defendants never sought to impose sanctions or

seek the dismissal of plaintiff's complaint during the discovery period.

According to counsel, no trial date had been set and no prejudice had resulted to

defendants in the delay in providing discovery.

      On May 12, 2017, Judge Thomas R. Vena considered the parties' oral

arguments before deciding to grant defendants' motion. In his oral decision

placed on the record on that date, Judge Vena reviewed the history of the case

and observed that the 450 days established for discovery under the court's rules

went by and a trial date established without any answers to interrogatories,

depositions or expert reports being provided by plaintiff. He also noted that

plaintiff did not file a cross motion seeking any relief, including the extension

of the discovery date. He turned to plaintiff's explanation for discovery not

being served and concluded that plaintiff did not provide any "circumstances . . .

as to why no discovery was conducted" and that "counsel's office . . . not

warn[ing] him about the discovery end date" "[h]ardly constitute[ed] [good]

cause." Judge Vena explained that even assuming plaintiff's opposition to


                                                                           A-5342-16T1
                                        4
defendants' motion "constitutes a motion to extend discovery," counsel's

explanation not only did not establish the exceptional circumstances required to

extend discovery when, as here, a trial date had been fixed, but did not satisfy

the "good cause" needed to be shown when there was no impending trial date.

Citing to Vitti v Brown, 359 N.J. Super. 40 (Law Div. 2003) and Rivers v. LSC

Partnership, 378 N.J. Super. 68 (App. Div. 2005), the judge pointed out there

was no proof of counsel's diligent pursuit of discovery or any explanation as to

why an extension was not sought during the discovery period. 1

      Judge Vena concluded by rejecting counsel's explanation at oral argument

for not providing discovery sooner. The judge stated

                   Why discovery was not completed we're told it
            was a strategic determination. Counsel clearly was not
            diligent . . . in pursuing discovery. While additional
            discovery is, in fact, essential, because at the time of
            the discovery end date no discovery was conducted.
            Well, of course, it's essential in the event that the . . .
            matter is going to proceed to trial. In fact, discovery,
            contrary to what attorney for the plaintiff tells us, is
            hardly a short period of additional discovery. There's
            already been 450 days of discovery by the time of the
            discovery end date, and that's why such an extensive
            discovery opportunity was provided. Presumably if . . .
            the discovery end date was to be extended under the
            facts of this case, it would have to be extended virtually

1
   During oral argument, plaintiff's counsel stated "it was a strategic point on
[his] part" to withhold discovery until he had received "[defendants'] answers to
interrogatories." (T11)
                                                                          A-5342-16T1
                                        5
            another 450 days in order to accomplish what would
            have to be accomplished in a Track III professional
            malpractice case.
                   The explanation of why the extension was not
            requested within time is -- is simply -- whatever
            explanation there was is simply not acceptable.
            Clearly, the circumstances were not beyond the control
            of the attorney and litigant, and there has been
            absolutely no showing that counsel made effective use
            of the time provided under -- in light of the fact that an
            extensive period of time was provided. For all of those
            reasons and authorities cited, the plaintiff's complaint
            is dismissed with prejudice.

      Judge Vena entered an order on May 12, 2017 granting defendants' motion

for summary judgment and dismissing plaintiff's complaint with prejudice.

Plaintiff did not file an appeal from that order.

      On June 1, 2017, plaintiff filed a motion under Rule 4:50 for "relief from

judgment or order," seeking to reinstate her complaint. In support, plaintiff filed

the certification of a different attorney than the one that had filed opposition to

defendants' earlier motion, but from the same firm. In this certification, counsel

stated that "[t]he nature and circumstances underlying this [m]otion are detailed,

and sensitive, and [he] respectfully request[ed] that the [c]ourt permit [him] to

explain them fully in camera." He then explained that it was his associate who

was responsible for handling this matter and that he was unaware that the

discovery end date "had lapsed and key discovery not undertaken." Counsel


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                                         6
renewed his request to provide information "to the [c]ourt in camera," stated he

would now be taking over the file, and based on his review of the transcript from

the summary judgment motion oral argument, his associate "did not state that

the [p]laintiff was dilatory or neglectful in this matter" and he had "no

information in [his] possession suggest[ing] that she was such." According to

counsel, "[b]ased upon the circumstances presented in this [m]otion, the

[p]laintiff contends that she has established exceptional circumstances to justify

reopening and extension of the [discovery end date]."

      On June 23, 2017, Judge Vena issued an order denying plaintiff's motion,

accompanied by a written statement of reasons. In his statement, the judge cited

to Hartsfield v. Fantini, 149 N.J. 611 (1997) and Zadigan v. Cole, 369 N.J.

Super. 123, 132 (Law Div. 2004), relied upon plaintiff's attorney's "carelessness

throughout the entirety of the discovery period," and concluded that plaintiff

failed to meet the exceptional circumstances standard for relief under Rule 4:50-

1(f) because "an attorney's 'carelessness' or failure to act diligently does not give

rise to exceptional circumstances." This appeal followed.

      In her notice of appeal, plaintiff designated only the June 23, 2017 order

as the subject of her appeal. Her accompanying appellate case information

statement identified the order more specifically as the order denying her "Motion


                                                                             A-5342-16T1
                                         7
for Relief from the Court's May 12, 2017 Order dismissing the [p]laintiff's action

against all [d]efendants for failure to provide an expert witness report and

written discovery."

      On appeal, plaintiff argues that the award of summary judgment was

improper because plaintiff served expert reports shortly after the discovery end

date, before the motion was heard. She also contends that defendants never

pursued the discovery by filing any motions during the discovery period, the

motion was premature, and moot in light of plaintiff filing a cross-motion to

reopen discovery. Plaintiff also avers that the court did not properly consider

plaintiff's opposition and, in any event, the ultimate sanction of dismissal was

unwarranted. Finally, she challenges the denial of her Rule 4:50 motion. We

find no merit to these contentions.

      At the outset, we observe that plaintiff's notice of appeal is limited to the

order denying her motion to vacate under Rule 4:50-1. Plaintiff's appeal is

therefore procedurally barred insofar as it relates to any claimed defect in the

May 12, 2017 summary judgment order. See R. 2:5-1(f)(3)(A); Pressler &

Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2018) (citing

Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b.,

138 N.J. 41 (1994) and W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J.


                                                                           A-5342-16T1
                                        8
Super. 455, 458-59 (App. Div. 2008)). Plaintiff's brief challenges the reasons

for the summary judgment order's entry by the court, and her appellate case

information statement mentions the order. However, plaintiff's appellate case

information statement does not explicitly state that she is appealing from that

order, and she never filed an appeal from Judge Vena's granting summary

judgment. Therefore, the summary judgment order is not subject to our review. 2

      We begin our review of Judge Vena's denial of plaintiff's Rule 4:50-1

motion by acknowledging the "substantial deference" we must give to a trial

court's decision on a Rule 4:50-1 motion, which "should not be reversed unless

it results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Guillaume,

209 N.J. 449, 467 (2012). An abuse of discretion may be found when a decision

lacks a "rational explanation," represents an inexplicable "depart[ure] from

established policies," or rests "on an impermissible basis."      Id. at 467-68

(quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). Our task is

not "to decide whether the trial court took the wisest course, or even the better

course, since to do so would merely be to substitute our judgment for that of the

lower court. The question is only whether the trial judge pursued a manifestly


2
   Although the summary judgment order is not under review, our consideration
of the denial of the Rule 4:50-1 motion addresses essentially the same issues
plaintiff raises in her challenge to the summary judgment order.
                                                                         A-5342-16T1
                                       9
unjust course." Gittleman v. Cent. Jersey Bank & Tr. Co., 103 N.J. Super. 175,

179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968).

      Rule 4:50-1 provides various grounds for a court to relieve a party from a

judgment. Under subsection (f), the judgment should be set aside for "any other

reason justifying relief from the operation of the judgment or order." R. 4:50-

1(f). "[R]elief under Rule 4:50-1(f) is available only when 'truly exceptional

circumstances are present'" such that "were it not applied, a grave injustice

would occur."     Guillaume, 209 N.J. at 468, 484 (quoting Hous. Auth. of

Morristown v. Little, 135 N.J. 274, 286, 289 (App. Div. 1994)). "The movant

must demonstrate the circumstances are exceptional and enforcement of the

judgment or order would be unjust, oppressive or inequitable." Johnson v.

Johnson, 320 N.J. Super. 371, 378 (App. Div. 1999) (citation omitted).

      In determining whether a party should be relieved from a judgment or

order, courts must balance "the strong interests in the finality of lit igation and

judicial economy with the equitable notion that justice should be done in every

case." Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 193 (App.

Div. 1985). Our courts have long adhered to the view that subsection (f)'s

boundaries "are as expansive as the need to achieve equity and justice." Ridge




                                                                           A-5342-16T1
                                       10
at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 98 (App. Div. 2014) (quoting

Court Invest. Co. v. Perillo, 48 N.J. 334, 341 (1966)).

      Where a procedural violation is involved, additional considerations are

implicated, namely, "[t]he defendant's right to have the plaintiff comply with

procedural rules[, which] conflicts with the plaintiff's right to an adjudication of

the controversy on the merits." Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499,

513 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 252 (1982)). In all cases,

however, "justice is the polestar and our procedures must ever be moulded and

applied with that in mind." Jansson, 198 N.J. Super. at 195 (quoting N.J.

Highway Auth. v. Renner, 18 N.J. 485, 495 (1955)).

      An attorney's error, misconduct or incompetence may constitute

exceptional circumstances warranting relief under Rule 4:50-1(f). Jansson, 198

N.J. Super. at 196. "[A] litigant may, in appropriate circumstances, be relieved

of the consequences of his attorney's negligence in the conduct of a case." Ridge

at Back Brook, LLC, 437 N.J. Super. at 98 (vacating a summary judgment order

and remanding the matter for the trial court to reconsider a motion to vacate

dismissal based upon litigant's failure to understand discovery rules prior to

entry of judgment).




                                                                            A-5342-16T1
                                        11
      In Jansson, the plaintiffs provided their interrogatory answers to their

attorney, who then failed to submit them to the defendants by the applicable

deadline, resulting in the dismissal of the complaint. Jansson, 198 N.J. Super.

at 192-93. The attorney then "repeatedly misrepresented that the trial was

imminent when the plaintiffs inquired as to the status of the case." Id. at 193.

The matter remained dormant until the plaintiffs dismissed their attorney and

retained new counsel who promptly moved to reinstate the complaint, albeit

three years after the dismissal order was entered. Ibid. In reversing the trial

court's order denying the reinstatement, we enunciated four factors that courts

should consider in determining whether the rules should be relaxed: "(1) the

extent of the delay [between dismissal and the motion to reinstate], (2) the

underlying reason or cause, (3) the fault or blamelessness of the litigant, and (4)

the prejudice that would accrue to the other party." Id. at 195; see also Parker

v. Marcus, 281 N.J. Super. 589 (App. Div. 1995) (reversing the trial court's

ruling and vacating dismissal of a lawsuit due to an attorney's failure to appear

at an arbitration hearing and tell the plaintiff about the dismissal).

      Applying these guiding principles, we affirm the denial of her motion to

vacate, substantially for the reason expressed by Judge Vena in his written

decision. We only add that the record is devoid of any evidence of the actual


                                                                           A-5342-16T1
                                        12
cause for the delay in producing the expert reports needed to oppose the

summary judgment motion or proof that plaintiff had nothing to do with her

counsel's failure to produce any discovery during the 450 day discovery period.

      Affirmed.




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                                     13
