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Moschou v. Derosa

Decided: January 3, 1984.

GREGORY MOSCHOU, T/A CLUB ROCHELLE, PLAINTIFF-RESPONDENT,
v.
FRANK DEROSA, DEFENDANT-APPELLANT, AND FERNANDO J. LINES, *FN1DEFENDANT



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Michels and Dreier. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Defendant Frank DeRosa (DeRosa) appeals from a judgment of the Law Division awarding plaintiff Gregory Moschou, trading as Club Rochelle, damages in the total sum of $3,176 and dismissing his counterclaim.

On December 6, 1974, plaintiff and defendants entered into a lease agreement pursuant to which defendants agreed to lease a portion of premises owned by plaintiff in Rochelle Park, New Jersey, for the purpose of operating a cocktail lounge with dancing and entertainment. The lease was for a 30-day period to commence on January 8, 1975 and terminate on February 7, 1975. Plaintiff claims that defendants breached the lease agreement and that they are liable for three weeks rent, together with other expenses to be paid in accordance with the terms of the lease.

The record shows that the complaint was filed with the Clerk of the Superior Court of New Jersey on January 5, 1981, 37 days prior to the expiration of the six-year statute of limitations. The summons, however, was not issued until March 24, 1981, 78 days after the complaint was filed and after the six year statute of limitations had run. On or about April 3, 1981 DeRosa was served with the summons and a copy of the complaint.

DeRosa subsequently moved to dismiss the complaint on the ground that the summons had not been issued within ten days

after the filing of the complaint as required by R. 4:4-1. Plaintiff's counsel certified in opposition to the motion that plaintiff had not consulted him on the matter until December 30, 1980, and at that time "the location of the defendant was not known." He further certified that in March of 1981 plaintiff located defendant's business address where the latter was served. DeRosa's attorney, on the other hand, certified that DeRosa operated a hair salon in Teaneck, New Jersey, at the time the lease was executed and continues to operate the same salon at the same address. He also certified that plaintiff had DeRosa's business address and telephone number at all times, and that DeRosa's personal telephone number was publicly listed. Finally, DeRosa's attorney certified that after the statute of limitations expired DeRosa disposed of his books and records pertaining to the transaction, and claimed that as a result DeRosa would be prejudiced if plaintiff were allowed to proceed against him with the matter. The trial court, without setting forth any reasons for its ruling, denied the motion and granted DeRosa additional time to answer the complaint. Defendant then filed an answer denying any liability to plaintiff and seeking by way of counterclaim to recover damages for plaintiff's alleged breach of the lease agreement. At the conclusion of a bench trial, the trial court entered judgment in favor of plaintiff and dismissed DeRosa's counterclaim, finding in part that DeRosa did not have "any records to substantiate any of the amounts" sought as damages in his counterclaim.

DeRosa now appeals, contending, among other things, that the trial court erred in denying his motion to dismiss the complaint for failure to issue the summons within ten days. We agree and reverse.

R. 4:4-1 provides:

The plaintiff, his attorney or the clerk of the court may issue the summons. If a summons is not issued within 10 days after the filing of the complaint the action may be dismissed in accordance with R. 4:37-2(a). Separate or additional summonses may issue against any defendants.

R. 4:37-2(a) provides:


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