SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5374-18T4

MARC MECCA,

Plaintiff-Appellant,

v.

OFFICE OF THE PUBLIC 

DEFENDER, and JAIME KAIGH, 

ESQUIRE,

Defendants-Respondents,

and

JO-ANN SCIARRA, and

CHRISTINA FESTEVOLE,

Defendants.

______________________________

Argued January 12, 2021 – Decided

Before Judges Fisher and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-2444-17.

J. Craig Currie argued the cause for appellant.

NOT FOR PUBLICATION WITHOUT THE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.

January 29, 2021
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John Regina, Deputy Attorney General, argued the 

cause for respondents (Gurbir S. Grewal, Attorney 

General, attorney; Jane C. Schuster, Assistant Attorney 

General, of counsel; John Regina, on the brief).

PER CURIAM

Plaintiff Marc Mecca is an accountant who, in 2016, was charged with 

theft by deception. The Office of the Public Defender (OPD) undertook his 

defense and assigned defendant Jaime Kaigh, a pool attorney, to represent 

plaintiff in the criminal proceedings. Plaintiff was released on bail but later 

arrested – and spent fifty-two days in jail – for failing to appear for a February 

29, 2016 court proceeding.

Plaintiff commenced this action against OPD and Kaigh in January 2017,1

seeking damages for, among other things, the income he claims to have lost 

during his fifty-two-day incarceration. He argues that OPD and Kaigh's 

negligence proximately caused his fifty-two-day period of incarceration. 

Specifically, plaintiff asserted that he was treated at a hospital emergency room

a few days prior to the February 29 proceeding, telephoned defendants' office 

about his medical condition, and assumed from his communications that he was 

not required to appear.

1 Kaigh died after the commencement of this action but before he could be 

deposed.
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The trial judge entered summary judgment in defendants' favor, and 

plaintiff appeals. He argues that the judge mistakenly made "credibility 

determinations" against him and based dismissal on "inadequate proofs of 

economic harm."

We find no merit in plaintiff's arguments; the judge did not make 

credibility determinations and he did not base his decision on the inadequacy of 

plaintiff's claim of economic harm. The judge based his decision on what 

plaintiff asserted about his communications with defendants prior to the 

February 29 proceeding and what the medical documentation revealed about 

plaintiff's physical condition at that time. Our review is de novo; like the motion 

judge, we are obligated to assume the truth of plaintiff's factual allegations and 

view those facts in the light most favorable to plaintiff. Brill v. Guardian Life 

Ins. Co. of Am., 142 N.J. 520, 540 (1995). In closely examining plaintiff's 

deposition testimony, we agree he failed to present a prima facie case of 

negligence on defendants' part.

We start with the undisputed facts. Plaintiff acknowledged at his 

deposition that one of the conditions of his remaining out on bail was that he 

"had to appear at every court hearing that [he] was scheduled for." He also 
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testified at his deposition that the court gave him written notice of the February 

29 court proceeding ten days in advance.

Plaintiff asserted that he developed a case of bronchial pneumonia and 

went to the emergency room of a local hospital on February 24, 2016. According 

to plaintiff, he telephoned OPD's office while in the hospital waiting room and 

stated he would be unable to attend the February 29 hearing. He did not speak 

to an attorney; he spoke to a secretary who said she would pass along the 

message to defendant Kaigh. The hospital records submitted to the motion judge 

reveal plaintiff remained in the hospital for only four-and-one-half hours. He 

left at his own request shortly after midnight. Plaintiff called OPD's office later

that day to ask defendant Kaigh if an adjournment had been granted but Kaigh 

was unavailable; plaintiff left a message with a secretary.

Plaintiff never called defendants again prior to the February 29 

proceeding. And he never received a message from either the court or from 

defendants that the conference had been adjourned, as he readily acknowledged 

at his deposition:

Q. Okay. After that second call did you ever receive a 

call back from Mr. Kaigh's office prior to the February 

29, 2016 pretrial conference?

A. Never.
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Q. Did you ever receive a letter from Mr. Kaigh's office 

between that second call and the February 29, 2016 

conference?

A. No.

Q. Did you ever receive a letter from the court prior to 

the February 29, 2016 conference advising you that it 

had been adjourned or continued?

A. No.

Q. Did you ever receive a phone message from the 

court advising you that the February 29, 2016 court 

appearance had been adjourned or continued?

A. No.

Q. Did you ever receive any phone message from [the 

judge or her] chambers that the February 29, 2016 court 

hearing had been adjourned or continued?

A. No.

Q. Did you ever receive a letter from [the judge] or her 

chambers saying it had been adjourned?

A. No.

. . . .

Q. So, it's correct that you were assuming that you 

didn't have to appear in court?

A. Correct.

Q. Even though you knew it was scheduled?
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A. Yes.

Q. Okay. And why did you assume that the hearing 

had been continued or adjourned or that you didn't have 

to appear in court?

A. My two requests into his office asking or telling of 

my situation that I wouldn't be able to be there unless it 

was extraordinary circumstances.

Despite these circumstances, plaintiff claims that defendants were negligent, 

apparently for failing to disabuse plaintiff of his misconceptions about his need 

to be in court on February 29. The record is clear and undisputed that defendants 

never told plaintiff that he was not required to attend the February 29 

conference. The record – viewed in a light favorable to plaintiff – suggests only

that plaintiff decided for himself that he was not required to attend.

The record also provides no evidence that plaintiff was unable to attend

the February 29 proceeding. He was not then hospitalized; he left the hospital, 

on his own accord, five days earlier. The hospital records contained in the record 

before the motion judge describe plaintiff as "stable for discharge" without 

restrictions. The motion judge correctly observed that "nothing in the record" 

indicated plaintiff "was unable to . . . attend" court on February 29.

We agree with the motion judge that defendants did not breach any 

standard of care regarding plaintiff's desire to avoid attending the February 29 
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conference. Plaintiff was physically able to attend and defendants never told 

him he was excused from attending.

There is also nothing in the record to demonstrate that defendants departed 

from the standard of care in handling the situation on February 29. At that time, 

Kaigh appeared on plaintiff's behalf. The judge was already familiar with 

plaintiff's attempt to avoid appearing and, in response to Kaigh's argument, 

allowed plaintiff until the end of that day to provide medical records or 

documentation that would demonstrate his inability to attend:

THE COURT: Okay. The time is 10:45. Mr. Mecca 

was marked as bench – as a warrant. He didn't answer 

to the call of the list. Mr. Jamie Kaigh, you wanted to 

place something on the record?

MR. KAIGH: Yes. Your staff has informed me that Mr. 

Mecca called them and said he was hospitalized over 

the weekend, had a fever, was told by his doctor not to 

come in today.[2] My office reports to me that he called 

them and said he was hospitalized. I had the Public 

Defender call him back and tell him he needs to get his 

medical records to the [c]ourt ASAP or to the Public 

Defender ASAP and – otherwise a warrant would issue.

2 February 29, 2016 was a Monday. If Kaigh's in-court representation of what 

he was told by the judge's staff was accurate – and the judge did not contradict 

what Kaigh said – plaintiff misrepresented to the court the circumstances he 

believed excused his appearance. He was not hospitalized over the weekend 

preceding the Monday proceeding and, if he was told by a doctor not to go to 

court on Monday, plaintiff offered no sworn statement or evidence that would 

support such a contention.
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THE COURT: Okay. The Court will give this to the 

end of the day. There's no medical documentation that 

was brought to the [c]ourt's attention that Mr. Mecca is 

in fact sick. But, of course, if in fact that is the case, 

the warrant will not be issued if the [c]ourt is provided 

with that information. So if he gets it to the [c]ourt by 

the end of the day, I will hold off on the warrant.

Plaintiff presented nothing to suggest that Kaigh did not take the steps he 

represented to the judge he had already taken.3

In short, defendants did not breach the standard of care they owed plaintiff 

in February 2016. They did not tell him or suggest to him that he was not 

required to appear on February 29, 2016. To the contrary, the record reveals 

that plaintiff knew he was required to appear, that he lacked a valid reason for 

failing to appear, and that the only reason he failed to appear was because he 

unwisely assumed his four-and-one-half-hour stop at a hospital emergency room 

five days earlier constituted a sufficient excuse. Viewing the record in the light 

most favorable to plaintiff, we agree with the motion judge that plaintiff failed 

to present sufficient evidence upon which a factfinder could rule in his favor.

Affirmed.

3 Plaintiff argues in this court that defendants were also negligent because they 

did not reach out to plaintiff after the brief proceeding before the judge on 

February 29. Plaintiff never said such a thing in his lengthy deposition, and he 

did not file a certification or affidavit to that effect when opposing defendants' 

summary judgment motion.