SEAMUS R. HALLORAN VS. BENJAMIN A. STANZIALE, JR., ESQ., Â(L-0271-14, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4189-15T2
SEAMUS R. HALLORAN,
Plaintiff-Appellant,
v.
BENJAMIN A. STANZIALE, JR., ESQ.;
STANZIALE & STANZIALE;
MICHAEL DEMARCO; and
DEMARCO & DEMARCO,
Defendants-Respondents.
______________________________________
Argued October 17, 2017 – Decided November 14, 2017
Before Judges Yannotti, Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
0271-14.
Angela M. Roper argued the cause for appellant
(Roper & Thyne, LLC, attorneys; Kenneth S.
Thyne, on the brief).
William F. O'Connor, Jr. argued the cause for
respondents Michael DeMarco and DeMarco &
DeMarco (McElroy, Deutsch, Mulvaney &
Carpenter, LLP, attorneys; Mr. O'Connor, of
counsel and on the brief).
Michael P. Chipko argued the cause for
respondents Benjamin A. Stanziale, Jr. and
Stanziale & Stanziale (Wilson, Elser,
Moskowitz, Edelman & Dicker, LLP, attorneys;
Maxwell L. Billek, of counsel; Mr. Chipko, on
the brief).
PER CURIAM
Plaintiff Seamus R. Halloran appeals from an order entered
by the Law Division, which granted summary judgment to defendants
and denied his cross-motion for leave to file a late expert report.
We affirm.
I.
The following facts are taken from the record. On January
9, 2014, plaintiff filed a legal malpractice action against
Benjamin A. Stanziale, Jr., Esq., Stanziale & Stanziale
(collectively Stanziale), and Michael DeMarco, Esq., and DeMarco
& DeMarco (collectively DeMarco) claiming damages arising from a
Chapter 7 Bankruptcy proceeding involving real estate owned by
plaintiff.
Anthony Rottino and Paragon Federal Credit Union (Paragon)
had a competing mortgage on plaintiff's home located in Saddle
River (property). Paragon instituted a foreclosure action on the
property, and engaged in litigation over mortgage priority against
Rottino, who was represented by DeMarco. Plaintiff, who initially
was self-represented, asked Rottino if he could recommend an
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attorney. Rottino contacted DeMarco, who recommended Stanziale.
Plaintiff alleges DeMarco and Stanziale coerced him to file
bankruptcy in order to benefit the interests of DeMarco's client,
Rottino.
On June 30, 2015, the trial court issued an order extending
discovery to October 6, 2015, and requiring plaintiff to submit
an expert report by September 21, 2015. On October 9, 2015, the
trial court issued a second order extending discovery to January
31, 2016, and requiring plaintiff to submit an expert report by
December 1, 2015. This order noted "should the plaintiff fail to
comply with this final discovery schedule, the defendants may move
to dismiss the matter in accordance with the Court Rules." On
December 4, 2015, the trial court issued a third order extending
discovery to March 1, 2016, and requiring plaintiff to submit an
expert report by January 20, 2016.
On February 19, 2016, the trial court issued a final order
extending discovery to March 17, 2016, and requiring plaintiff to
submit an expert report by March 17, 2016. The order, which noted
trial was scheduled for June 6, 2016, stated: "No further fact
witness to be deposed. All parties have had more than sufficient
time to depose whatever fact witnesses they required. Matter has
already had in excess of 749 days of discovery." The order further
noted: "There shall be no further extensions of the discovery end
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date except upon a showing of exceptional circumstances."
Plaintiff failed to submit an expert report within the time
required.
On March 22, 2016, Stanziale filed a motion for summary
judgment due to plaintiff's failure to submit an expert report.
On March 31, 2016, plaintiff submitted a letter to the court
requesting an additional six weeks to file an expert report.
Plaintiff alleged his expert, Bennett Wasserman, Esq. (Wasserman),
discovered a conflict and informed him of it on March 29, 2016,
twelve days after the March 17 due date set forth in the February
19 order. This was the first time plaintiff identified Wasserman
as a potential expert. Plaintiff's letter claimed "counsel for
one of the defendants was a member of a firm with whom [Wasserman]
had a conflict."
On April 1, 2016, DeMarco filed a motion for summary judgment
for plaintiff's failure to submit an expert report. On April 18,
2016, plaintiff filed an opposition to the motions for summary
judgment and a cross-motion to permit the late submission of an
expert report. Plaintiff requested permission to submit a
substitute expert report by Anthony Ambrosio, Esq. (Ambrosio).
On April 29, 2016, the trial court issued an order denying
plaintiff's cross-motion for leave to permit the late submission
of an expert report, and granted the Stanziale and DeMarco motions
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for summary judgment. Plaintiff's expert report was barred because
it was not submitted in a timely fashion. Because plaintiff could
not sustain his legal malpractice claim against Stanziale and
DeMarco without expert testimony, plaintiff's complaint was
dismissed on summary judgment with prejudice. Plaintiff now
challenges this order.
II.
Our review of the order granting summary judgment is de novo.
Graziano v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). We
"review the trial court's grant of summary judgment under the same
standard as the trial court." Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016).
The court considers all of the evidence submitted "in the light
most favorable to the non-moving party," and determines if the
moving party is entitled to summary judgment as a matter of law.
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
The court may not weigh the evidence and determine the truth of
the matter. Ibid. If the evidence presented "show[s] that there
is no real material issue, then summary judgment should be
granted." Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255,
258 (App. Div. 1987) (citing Judson v. Peoples Bank and Tr. Co.
of Westfield, 17 N.J. 67, 75 (1954)).
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Plaintiff argues the trial court erred in dismissing his
complaint with prejudice. He asserts the court's desire to
expedite cases and principles of judicial economy should not be
at the expense of dispensing justice to the aggrieved party.
Plaintiff asserts the trial court's dismissal of his complaint was
a substantial sanction and that a lesser sanction was appropriate.
He argues his claims warrant review on the merits, and the trial
court's dismissal does not achieve this result.
As a preliminary matter, the parties do not dispute
plaintiff's legal malpractice claim could not proceed without an
expert report. Indeed, plaintiff contended he consulted with
DeMarco and Stanziale regarding the foreclosure of his home, and
alleged they "advised [him] to file bankruptcy, and indicated that
[he] would emerge from the bankruptcy and retain his interest in
his home and a sizeable payment for his interest." Moreover,
plaintiff alleged DeMarco "used the bankruptcy petition to prevent
the exposure of Rottino's fraud in the pending Paragon litigation,"
and "[t]he bankruptcy petition was not filed to benefit [him], but
to benefit the interests of DeMarco's client, Rottino." He alleged
DeMarco's and Stanziale's conduct "was a deviation from the
standards of practice." Plaintiff was required to adduce an expert
report to prove these claims.
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"[I]n nearly all malpractice cases, plaintiff need[s] to
produce an expert regarding deviation from the appropriate
standard." Garcia v. Kozlov, 179 N.J. 343, 362 (2004) (citing
Brach, Eichler, P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div.
2001)); see also N.J.S.A. 2A:53A-27. "As the duties a lawyer owes
to his client are not known by the average juror, expert testimony
must necessarily set forth that duty and explain the breach."
Buchanan v. Leonard, 428 N.J. Super. 277, 288 (App. Div. 2012)
(quoting Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 78
(App. Div. 2007)) (citation omitted).
Where the standard of care that should guide an attorney in
the situation presented would not be readily apparent to persons
of average intelligence and ordinary experience, the assistance
of an expert opinion is required. See id. at 289. A plaintiff's
failure to produce expert testimony in legal malpractice claims
is often fatal. See Innes v. Marzano-Lesnevich, 435 N.J. Super.
198, 214 (App. Div. 2014).
Thus, expert testimony on plaintiff's behalf was the only
means to adduce the necessary proofs to sustain plaintiff's
malpractice action against defendants. For the reasons set forth
in the next section, the trial court properly denied plaintiff's
motion to file a late expert report, which was a prerequisite for
offering expert testimony. Therefore, summary judgment was
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appropriately granted here because plaintiff lacked any means to
prove his malpractice claim to a trier of fact.
III.
Plaintiff argues the late filing of his expert report was not
his fault. Specifically, plaintiff asserts he was unable to
produce an expert report in a timely fashion because Wasserman
alerted plaintiff to an alleged conflict shortly before his report
was due. This required plaintiff to retain Ambrosio, who could
only produce a report after the expiration of the discovery, thus
necessitating an extension of the discovery end date. Plaintiff
argues the trial court's dismissal of his claim with prejudice is
contrary to the law. He argues the discovery deadline would only
be extended by one month, the delay was not caused by plaintiff
or his attorney, and defendants would not be prejudiced by an
extension of the discovery deadline. We disagree.
"The right of a trial court to manage the orderly progression
of cases before it has been recognized as inherent in its
function." Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J.
Super. 472, 488 (App. Div.), certif. denied, 165 N.J. 607 (2000).
"As it relates to extensions of time for discovery, appellate
courts . . . have [] generally applied a deferential standard in
reviewing the decisions of trial courts." Pomerantz Paper Corp.
v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (citing Rivers v. LSC
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P'ship, 378 N.J. Super. 68, 82-83 (App. Div.), certif. denied, 185
N.J. 296 (2005)). "[W]e apply the same deferential approach to a
trial court's decision to admit expert testimony, reviewing it
against an abuse of discretion standard." Ibid. 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, supra, 378 N.J. Super. at 80 (citing
Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)). An abuse
of discretion "arises when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v.
Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir.
1985)).
"No extension of the discovery period may be permitted after
an arbitration or trial date is fixed, unless exceptional
circumstances are shown." R. 4:24-1(c). To demonstrate
exceptional circumstances, the moving party must demonstrate
"legitimate problems beyond mere attorney negligence, inadvertence
or the pressure of a busy schedule." Pressler & Verniero, Current
N.J. Court Rules, cmt. 3 to R. 4:24-1 at 1829 (2018). In Rivers,
supra, 378 N.J. Super. at 82-83, we stated that the "'exceptional
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circumstances' requirement warranting an extension of discovery
will not excuse the late request to secure expert reports, or
. . . the absence of expert opinion to support plaintiff's
liability claims, which is fatal to [plaintiff's] case, where
[plaintiff's] counsel failed to exercise due diligence during the
discovery period."
Plaintiff's arguments on appeal are not supported by the
record and lack context. The record does not show Wasserman
alerted plaintiff to the alleged conflict before his report was
due. In any event, plaintiff did not alert the court of the
alleged Wasserman conflict until two weeks after the deadline, and
after Stanziale had moved for summary judgment. Plaintiff did not
file a timely motion or attempt to submit the Ambrosio expert
report until April 18, 2016, more than a month after it was due,
and after the trial court had already extended the discovery
deadline four times. As an explanation for the exceptional
circumstances, plaintiff submitted a certification to the trial
court on March 31, 2016 stating:
Wasserman became aware that counsel for one
of the defendants was a member of a firm with
whom he had a conflict. Mr. Wasserman had not
previously realized this conflict when he
indicated that he would render a report in
this matter. . . . Mr. Wasserman has indicated
that while he had previously agreed to provide
a legal malpractice expert report in this
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matter, he now feels uncomfortable doing so
because of this conflict.
The trial court stated:
In the instant case, plaintiff asserts that
on March 29, 2016, his expert, Mr. Wasserman,
determined that he could not serve as an
expert because of an alleged conflict.
Nowhere in the papers submitted in support of
the cross-motion does plaintiff or Mr.
Wasserman ever describe the nature of the
conflict. Furthermore, Mr. Wasserman's
disclosure regarding the alleged conflict did
not take place until two weeks after his
expert report was due (March 17, 2016) in
accordance with the February 19 order.
. . . .
It is simply inconceivable to this court that
Mr. Wasserman only realized he had a conflict
in this matter on March 29, 2016 (after his
expert report was due).
. . . .
In this case, Plaintiff attempted to serve its
expert report from Mr. Ambrosio on April 18,
2016, well after the time for providing such
report was required under the February 19
order and all other prior order[s] entered by
the court. Plaintiff's counsel provides a
cursory certification to support the late
filing which is insufficient. Plaintiff's
counsel makes no certification and fails to
set forth any facts demonstrating due
diligence and proffers no adequate explanation
for the delay.
Furthermore, if this court were to permit
plaintiff to now serve its late expert report,
defendants would be unduly prejudiced in
preparing their defense in this matter since
defendants would then be required within less
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than 30 days to obtain their own expert report
and to prepare for the June 6 trial.
Additionally, at this late date, further
extension to allow for discovery will only
unduly lengthen the already protracted
discovery in this matter and perhaps
necessitate an adjournment of the trial.
Since more than 800 days of discovery have
already passed in the matter, there is no
reasonable justification for further delay at
this late date.
For all of these reasons set forth above, the
court finds no exceptional circumstances which
would allow plaintiff to provide his late
expert report from Mr. Ambrosio.
The trial court's reasoning is sound. Plaintiff's
certification was submitted after the already extended discovery
end date and failed to identify any facts demonstrating due
diligence. Plaintiff offered no explanation for the delay in
securing an expert report during the over 800 days of discovery
and after four discovery extensions by the trial court.
At oral argument, plaintiff blamed defendants' failure to
schedule deposition dates as a reason for the late submission of
his expert report. This does not constitute exceptional
circumstances as plaintiff could have sought enforcement of the
discovery deadlines before expiration of the discovery end date.
We fail to see how extending discovery for a fifth time with an
impending trial, satisfies the goals of an expeditious resolution
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of this dispute for plaintiff, and accords defendants justice and
an opportunity to defend plaintiff's claims.
Affirmed.
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