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Guas v. Guas

Decided: January 11, 1977.

GEORGINA GUAS, PLAINTIFF,
v.
CARMELO GUAS AND RAFAEL ORTIZ, DEFENDANTS



Bilder, J.s.c.

Bilder

This is a motion by a nonresident defendant to quash service and dismiss the complaint for lack of jurisdiction or alternatively for summary judgment on the ground the action is barred by the statute of limitations.

The underlying suit grows out of a two-car automobile accident which occurred on June 17, 1973 in Haverstraw, New York, between a car driven by a New Jersey resident, defendant Carmelo Guas, and a New York resident, defendant Rafael Ortiz. Plaintiff Georgina Guas, a New Jersey resident, was a passenger in the vehicle driven by her then husband and in this action seeks to recover against both drivers for her personal injuries.

Suit was instituted by the filing of a complaint with the clerk of the Superior Court on June 18, 1975. At that time defendant Guas was no longer a resident of New Jersey. His affidavit shows that sometime after the accident he was divorced from plaintiff and on August 23, 1974 he moved permanently to Miami, Florida where he resides with his parents. Service was made on defendant Guas on March 8, 1976 by the sheriff of Dade County, Florida by leaving a

copy of the summons and complaint with defendant's mother at defendant's usual place of abode, as appears from the return of service. It appears that no service has been made on defendant Ortiz.

This motion raises questions as to whether jurisdiction can be acquired in a motor vehicle negligence suit based solely on the defendant's New Jersey status at the time of the accident and, if jurisdiction does lie, whether the statute of limitations tolled when the defendant moved out of the State.

Jurisdiction

Although the jurisdiction question appears to be one of novel impression, an analysis of Cooke v. Yarrington , 62 N.J. 123 (1973), discloses that our Supreme Court has established the appropriate rule.

In Cooke suit was instituted in New Jersey with respect to a two-car accident which took place in Pennsylvania involving a New Jersey resident and a Pennsylvania resident. At the time of the accident defendant Yarrington lived in New Jersey, was licensed by New Jersey and was operating a New Jersey registered car. At the time suit was instituted (some ten days less than two years later) he no longer lived in New Jersey. In the interval he had graduated from college, taken up employment in New York, married and established a permanent residence near his job. Plaintiffs first learned of this move to New York when the attempt to serve him by leaving the suit papers with his mother at her home in New Jersey was challenged. By then an action in New York was barred by the statute of limitations. Service in the New Jersey suit was therefore made at his New York address by certified mail under R. 4:4-4(e).

In reversing a dismissal by the trial court for lack of jurisdiction, our Supreme Court determined there were sufficient New Jersey contacts to support jurisdiction -- that

the assumption of jurisdiction based on mail service in the light of those contacts was "consistent with due process." See International Shoe Co. v. State of Washington , 326 ...


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