The court has recognized that “[c]orrespondence to the court is intended to be read[,]” as “[t]he fair inference is that the sender intends to influence the mind of the court by the contents of the correspondence[.]” McAllister v. McAllister, 95 N.J. Super. 426, 433 (App. Div. 1967). However, the use of correspondence must not be a substitute for motions when presenting a party’s request for specific relief. See R. 1:6-2; R. 5:5-4.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The use of correspondence must not be a substitute for motions when presenting a party’s request for specific relief originally appeared on NJ Family Issues on February 7, 2012.

Rule 4:50-1(a) allows the court to vacate a final judgment for “mistake, inadvertence, surprise, or excusable neglect.” “Generally, a defendant . . . must show that the neglect to answer [the complaint] was excusable under the circumstances and that he [or she] has a meritorious defense.” Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff’d, 43 N.J. 508 (1964). “Excusable neglect” under Rule 4:50-1(a) has been defined as carelessness “attributable to an honest mistake that is compatible with due diligence or reasonable prudence.” Mancini v. EDS, 132 N.J. 330, 335 (1993).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

The court may vacate a final judgment for mistake, inadvertence, surprise, or excusable neglect originally appeared on NJ Family Issues on February 7, 2012.

When service is defective or non-existent and a default judgment results, the judgment is generally void. Rosa v. Araujo, 260 N.J. Super. 458, 462 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993). “A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice . . . . Such a judgment will usually be set aside under R. 4:50-1(d).” Jameson, supra, 363 N.J. Super. at 425 (citations omitted). In cases where a defendant asserts defects in service of process, due process may be implicated, and further showings, such as that of a meritorious defense, may not be required. Pressler & Verniero, Current N.J. Court Rules, comment 5.4.2 on R. 4:50-1(d) (2012) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988)).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice originally appeared on NJ Family Issues on February 7, 2012.

Rule 4:4-4(b)(1)(C) provides that a plaintiff may effect service by “mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail to: (1) [defendant's] . . . dwelling house or usual place of abode.”

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Plaintiff may effect service by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail, to defendant’s dwelling house or usual place of abode originally appeared on NJ Family Issues on February 7, 2012.

A motion for relief from judgment under Rule 4:50-1 should be granted sparingly, “in exceptional situations . . . in which, “were it not applied, a grave injustice would occur.” Morristown Hous. Auth. v. Little, 135 N.J. 274, 289 (1994). When reviewing such motions the appellate court generally defers to the broad discretion afforded to the trial judge, whose determinations should be left undisturbed unless they result from a clear abuse of discretion. Id. at 283; see St. James AME Dev. Corp. v. Jersey City, 403 N.J. Super. 480, 487 (App. Div. 2008) (reversing misapplication of discretion); Del Vecchio v. Hemberger, 388 N.J. Super. 179, 186-87 (App. Div. 2006) (finding no abuse of discretion). “[A]lthough the ordinary ‘abuse of discretion’ standard defies precise definition, it arises when a decision is ‘made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.’” Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123-24 (2007) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

A motion for relief from judgment should be granted sparingly, in exceptional situations in which, were it not applied, a grave injustice would occur originally appeared on NJ Family Issues on February 7, 2012.

A trial judge’s authority to dismiss a cause of action at the close of a party’s case is found in Rules 4:37-2(b) and 4:40-1. Under those rules, the judge must determine whether the evidence and all reasonable inferences drawn from that evidence can sustain a judgment in favor of the claimant. See R. 4:37-2(b); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005).
If “reasonable minds could differ,” the motion to dismiss must be denied. Sons of Thunder v. Borden, Inc., 148 N.J. 396, 415 (1997); Dolson v. Anastasia, 55 N.J. 2, 5 (1969).

On the other hand, “when the proof of a particular fact is so meager or so fraught with doubt that a reasonably intelligent mind could come to no conclusion but that the fact did not exist[,]” the court may grant a motion to dismiss without further presentation of evidence. Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 493 (1956); see City Check Cashing, Inc. v. Mfrs. Hanover Trust Co., 166 N.J. 49, 64-65 (2001); cf. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 532-40 (1995) (similar standards apply to a motion for dismissal under Rule 4:37-2(b) and a motion for summary judgment under Rule 4:46-2(c), including whether the evidence “‘is so one-sided that one party must prevail as a matter of law’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986))). A trial court must take into consideration the entirety of testimony from a witness rather than isolated excerpts favorable to one party or the other on a motion to dismiss. See Ritondo v. Pekala, 275 N.J. Super. 109, 111 (App. Div.), certif. denied, 139 N.J. 186 (1994).

On appeal, the appellate court applyes the same standard as the trial judge in considering dismissal of claims. RSB Lab. Servs., Inc. v. BSI Corp., 368 N.J. Super. 540, 555 (App. Div. 2004). That is, the appellate court conducts a plenary review of the record and consider de novo whether a claim should have been dismissed under Rules 4:37-2(b) or 4:40-1.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

When the proof of a particular fact is so meager or so fraught with doubt that a reasonably intelligent mind could come to no conclusion but that the fact did not exist, the court may grant a motion to dismiss without further presentation of evidence originally appeared on NJ Family Issues on February 6, 2012.

It is well-established that the main objective of the two tier sanction process in Rule 4:23-5 is to compel discovery responses rather than to dismiss the case. See Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 96 (App. Div. 2008); Pressler and Verniero, supra, comment 1.1 on R. 4:23-5(a). To this end, Rule 4:23-5 imposes certain obligations upon the attorney for the delinquent party that are explicitly designed to ensure that a party whose pleadings are subject to dismissal is aware of the delinquency and of the consequences of failing to cure such deficiency. See id., comment 1.2 to R.4:23-5(a)(1). The first obligation is triggered when the attorney for the delinquent party is served with an order of dismissal or suppression without prejudice. Rule 4:23-5(a)(1) states in pertinent part:

[C]ounsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore.

Additional obligations are triggered by a motion to dismiss or suppress with prejudice:

The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. In lieu thereof, the attorney for the delinquent party may certify that despite diligent inquiry, which shall be detailed in the affidavit, the client’s whereabouts have not been able to be determined and such service on the client was therefore not made. If the delinquent party is appearing pro se, the moving party shall attach to the motion a similar affidavit of service of the order and notices or, in lieu thereof, a certification as to why service was not made. Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party.

[R. 4:23-5(a)(2).]

The rule thus imposes two additional obligations upon the attorney for the delinquent party when a motion to dismiss with prejudice has been filed: (1) to inform the court no later than seven days prior to the return date that the client has been duly informed of the motion and its consequences or, in the alternative, to certify that the client could not be so informed because his or her whereabouts could not be determined; and (2) to appear in court on the return date of the motion. Each of these requirements performs the valuable function of establishing a record for the benefit of court and counsel that a party has had requisite notice.

In Zimmerman v. United Servs. Auto. Ass’n., 260 N.J. Super.368, 376-77 (App. Div. 1992), the court noted that “achievement of the salutary scheme of [Rule 4:23-5] requires meticulous attention to its critical prescriptions, and particularly to those provisions which are intended to afford a measure of protection to the party who is faced with the ultimate litigation disaster of termination of his cause.” See also Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 60 (App. Div. 1996).

Effective September 1, 1998, Rule 4:23-5(a)(3) imposed the following obligation upon the motion judge:

If the attorney for the delinquent party fails to timely serve the client with the original order of dismissal or suppression without prejudice, fails to file and serve the affidavit and the notifications required by this rule, or fails to appear on the return date of the motion to dismiss or suppress with prejudice, the court shall, unless exceptional circumstances are demonstrated, proceed by order to show cause or take such other appropriate action as may be necessary to obtain compliance with the requirements of this rule.

Our courts recognize the importance of requiring communication from counsel for the delinquent party to ensure the party has had appropriate notice of the sanction sought. See, e.g., Zimmerman, supra, 260 N.J. Super. at 376 (“[I]t is clear that if the client is afforded an opportunity to appear and if the attorney is mandated to appear, the motion is not subject to waiver of oral argument and consequent decision on the papers.”); Suarez v. Sumitomo Chem. Co., 256 N.J. Super. 683, 688 (Law Div. 1991) (“[I]f on the return date of the ‘with prejudice’ motion counsel fails to appear, or does so, but has failed to properly notice the client, the court must adjourn the motion to a date when a proper hearing may occur.”).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Obligations when a motion to dismiss with prejudice for discovery failures has been filed originally appeared on NJ Family Issues on January 23, 2012.

The closing arguments of trial attorneys are to be confined to the facts shown by, or reasonably inferred from, the proofs admitted into evidence during the course of the trial. Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). Even so, in the heat of the moment, a zealous trial advocate may sometimes stray from this boundary. In light of that practical reality, the propriety of a lawyer’s summation must be evaluated as a whole, and individual comments should not be considered in isolation. Almog v. Israel Travel Advisory Serv., 298 N.J. Super. 145, 161 (1997), appeal dismissed, 152 N.J. 361, cert. denied, 528 U.S. 817, 119 S. Ct. 55, 142 L. Ed.2d 42 (1998).

A litigant is not entitled to a new trial arising from an improper closing argument unless “the comments are so prejudicial that ‘it clearly and convincingly appears that there was a miscarriage of justice under the law.’” Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting R. 4:49-1(a)). The failure of opposing counsel to object to an improper comment made in summations raises a presumption that the comment was not sufficiently prejudicial to warrant judicial intervention. Risko v. Thompson Miller Auto Grp. Inc., 206 N.J. 506, 523 (2011).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

The failure of opposing counsel to object to an improper comment made in summations raises a presumption that the comment was not sufficiently prejudicial to warrant judicial intervention originally appeared on NJ Family Issues on January 19, 2012.

The time within which relief from a judgment or order pursuant to Rule 4:50-1(d), (e) and (f) must be made is within a reasonable time, and for reasons (a), (b) and (c) not more than one year after the judgment or order was entered. R. 4:50-2. The timeliness of an application under Rule 4:50-1(f) is measured by when the party adversely affected by the judgment or order was served, or had actual knowledge of the judgment or order. Farrell v. TCI of N. N.J., 378 N.J. Super. 341, 353-54 (App. Div. 2005).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Relief from a judgment or order originally appeared on NJ Family Issues on January 8, 2012.

In a criminal trial, pursuant to R.P.C. 3.7, “there must be a true, compelling and legitimate need for the disqualification of defense counsel.” The State’s heavy burden to establish such a compelling need flows out of the “important” right of an accused to be represented by competent counsel of his or her choosing.

The applicable provision, R.P.C. 3.7(a), states that:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

Our State’s case law has long recognized the paramount importance of “a client’s right freely to choose his counsel.” Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 205 (1988) (quoting Gov’t of India v. Cook Indus., Inc. 569 F.2d 737, 739 (2d Cir. 1978)). Consequently, the disqualification of a client’s counsel is considered a harsh remedy that should only be granted sparingly. Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000).

R.P.C. 3.7 recognizes these fundamental principles by authorizing disqualification of the client’s attorney only where that attorney’s trial testimony is “necessary” and “likely.” A purpose of that limited remedy is to prevent unfairness to the opposing party. See Michels, New Jersey Attorney Ethics, comment 31:4-1(a) on R.P.C. 3.7 (2012). A mere representation of an intent to call the attorney as a witness at trial is not sufficient, in and of itself, to demonstrate such necessity and likelihood. See, e.g., J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 230 (App. Div. 2006).

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Disqualification of the client’s attorney is authorized only where that attorney’s trial testimony is necessary and likely originally appeared on NJ Family Issues on January 8, 2012.