On appeal from Superior Court, Law Division, Union County.
Before Judges Petrella, O'Brien and Havey.*fn1
[239 NJSuper Page 477] The issue on defendant St. Elizabeth Hospital's appeal is the timeliness of its motion for a new trial. Plaintiff cross-appeals from the denial of her motion to amend the judgment to allow it to be entered against a "Jane Doe, fictitious defendant." The
trial judge dismissed defendant's motion for a new trial on procedural grounds because it had not been served upon plaintiff's attorney until the fourteenth day after the jury's verdict. However, it had been filed with the court on the tenth day after the jury's verdict, and a copy was given to a messenger service for delivery to plaintiff's attorney that same day, but it was not served within the 10-day period provided in R. 4:49-1(b). The judge also denied plaintiff's post-trial motion to enter a judgment against a fictitious defendant. R. 4:26-4. We reverse the trial court's dismissal of the hospital's motion for a new trial and remand for a hearing on the merits of that motion. We affirm the denial of plaintiff's motion to amend the judgment.
Plaintiff's malpractice complaint was filed on June 27, 1986 against St. Elizabeth Hospital and certain fictitious defendants whose names were unknown. One of those defendants was a nurse who allegedly had dropped a syringe, picked it up, wiped it with an alcohol prep, and then injected plaintiff, causing an infection. Plaintiff attempted to discover the name of the nurse who allegedly injected her with a contaminated needle. She thereafter filed an amended complaint and substituted nurse Diane Kean for the Jane Doe fictitious defendant, retaining Richard Roe as a fictitious defendant. However, when it was determined that Kean was not the nurse who allegedly injected plaintiff with a "dirty" needle, the amended complaint was voluntarily dismissed as to her. As a result of further discovery, plaintiff determined that Diane Cicio, another nurse who matched the physical description given by plaintiff, was also not the nurse who allegedly injected her. The case proceeded to trial against the hospital as the sole defendant. The hospital denied there was an incident where a nurse dropped a syringe as did the nurses who testified.
We need not consider at length the evidence presented at the trial in order to resolve the issues raised on this appeal. The jury returned a verdict of $50,000 against the hospital by answers to special interrogatories. It found specifically that an unnamed nurse employed by the hospital injected plaintiff with
a needle which had been dropped on the floor, and that the unsterile syringe was the proximate cause of plaintiff's injuries. The verdict was reduced by the court to $10,000 pursuant to the charitable immunity statute, N.J.S.A. 2A:53A-8, and judgment in that amount with prejudgment interest was entered against the hospital on December 6, 1988, plus costs.
On Friday, December 16, 1988 the hospital filed a motion for a new trial. On the same day, its attorney gave a copy of the motion to Comet Delivery Service with instructions to deliver it to plaintiff's attorney. However, for reasons not apparent in the record, actual delivery was not made to that attorney until Tuesday, December 20, 1988.
On December 16, 1988 plaintiff mailed a copy of her motion to amend the judgment to the hospital's attorney and forwarded the motion to the clerk of Union County for filing.*fn2
The hospital concedes that R. 4:49-1(b) requires service of a motion for new trial upon opposing counsel within 10 days of the jury's verdict, as well as filing of the motion within that time. That rule reads:
(b) Time for Motion, Cross-Motion; Affidavits. A motion for a new trial shall be served not later than 10 days after the court's conclusions are announced in non-jury actions or after the return of the verdict of the jury. The motion shall be noticed for hearing and argued no later than the second
regular motion day following the service thereof, unless the court for good cause shown orders the hearing fixed for either an earlier or a later date. The opposing party may, within 5 days after service of the motion, serve a cross-motion for a new trial returnable at the same time and place as the motion. If a motion for a new trial is based upon affidavits they shall be served with the motion; opposing affidavits shall be served within 10 days thereafter which period may be extended for an additional period not exceeding 20 days either by written stipulation of the parties or court order. The court may permit reply affidavits. Except in special circumstances the motion shall be decided by the judge on his trial notes without awaiting a transcript of the testimony.
The hospital nonetheless argues that placing a copy of the motion in the hands of a delivery service on the tenth day should be effective since posting a copy in the mail on that day would have constituted effective service under R. 1:5-4(b).*fn3 Service by regular mail is complete upon mailing. Plaintiff stands on the strict requirement of the 10-day rule and the limited nature of effective service under R. 1:5-4(b), which accords effectiveness on posting only to ordinary United States mail. That rule reads:
(b) Service complete on mailing. Service by mail of any paper referred to in R. 1:5-1, when authorized by rule or court order, shall be complete upon mailing of the ordinary mail. If no ordinary mailing is made, service shall be deemed completed ...