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Cwiklinski v. Burton

Decided: May 20, 1987.

JANET E. CWIKLINSKI AND LEONARD J. CWIKLINSKI, PLAINTIFFS-APPELLANTS,
v.
JEANNE BURTON, DEFENDANT-RESPONDENT



On appeal form the Superior Court of New Jersey, Law Division, Ocean County.

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

Michels

Plaintiffs Janet E. Cwiklinski and Leonard J. Cwiklinski appeal from a summary judgment of the Law Division entered in favor of defendant Jeanne Burton in this automobile negligence action. The trial court dismissed the action on the ground that it was barred by the two-year statute of limitations. N.J.S.A. 2A:14-2.

The facts giving rise to this appeal are essentially undisputed. On June 30, 1984, plaintiff Janet Cwiklinski was involved in a motor vehicle accident with defendant, resulting in both property damage and personal injury. The property damage issue was settled, but, because plaintiff suffered a relapse necessitating further medical treatment, settlement of the personal injury claim within the two-year limitations period was not possible. Consequently, plaintiffs' counsel drafted a complaint, which was typed and readied for mailing on May 21, 1986. This was approximately five weeks before June 30, 1986, the expiration date of the two-year statute of limitations set forth in N.J.S.A. 2A:14-2.

According to Madalyn Smith, a secretary in the office of plaintiffs' attorney, all office mail which is ready to be sent out "is hand delivered to the Post Office in Manasquan, New Jersey, on that particular day at approximately 4:45 p.m." Ms. Smith stated in her affidavit that she typed the complaint and the letter dated May 21, 1986, sealed them in an envelope "and put it into the mail so that in fact it could be taken to the Post Office." Significantly, neither Ms. Smith nor any other person stated that the letter containing the complaint was actually deposited at the post office.

During the first week in July, plaintiffs' attorney apparently realized for the first time that he had not received confirmation from the Clerk's Office that the complaint had been received and filed. When the attorney's secretary called the Clerk's Office, she was told that they had no information regarding the complaint. A duplicate copy of the complaint was then forwarded to the Clerk on Monday, July 7, 1986 with the request that it be back dated. This request was ignored. The complaint was thus filed on July 8, 1986. It should be noted that the $75 check which accompanied the May 21, 1986 filing was never returned to counsel nor did it clear the attorney's bank.

Defendant filed an answer on August 20, 1986 and, in September 1986, moved for summary judgment solely on statute of limitations grounds. On October 14, 1986, Judge Kaplan in the Law Division granted the motion, providing the following statement of reasons:

It is clear that the accident occurred June 30, 1984 and suit was not started until July 8, 1986, in excess of the two year Statute of Limitations. In opposing the motion, plaintiff asserts that the complaint had been sent in for filing five weeks earlier. That statement is supported by an affidavit of a secretary. Assuming the facts stated, it is difficult to understand why there would then be a delay of six or seven weeks thereafter while no action is taken to meet the statutory time requirements. Nothing is offered in terms of affidavits from the alleged recipients of the complaint, that is to say, the County Clerk or the Clerk of the Superior Court, and on the basis of what is relied upon, the motion for summary judgment is granted.

This appeal followed.

Plaintiffs seek a reversal of the summary judgment, contending that the complaint had been sent to the Clerk for filing prior to the expiration of the two-year statute of limitations. They claim essentially that the complaint was either lost in the mail or in the Superior Court Clerk's Office and, in either event, they should not be barred from maintaining this action. We disagree and affirm.

The law is settled in New Jersey that proof of mailing, correct addressing and due posting of a letter raises the presumption that it was ...


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