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Novack v. Chait

Decided: June 20, 1990.

STUART NOVACK, PLAINTIFF-APPELLANT,
v.
HARRY CHAIT, MICHAEL J. DEVER, JANE DOE (A FICTITIOUS NAME), WILLIAM ROHRER, MR. LAND OWNER (A FICTITIOUS NAME), VILLAGE APARTMENTS OF CHERRY HILL, INC., CAMDEN DIOCESAN CENTER, ST. MARY'S NURSING HOME, AND MARTHA NOVACK, DEFENDANTS-RESPONDENTS, AND ALBERT J. OLIZI, JR., ESQ., STUART & JENNINGS, AND ARCHDIOCESE OF NEWARK, DEFENDANTS



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

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

Coleman

The key issue raised in this appeal is whether a plaintiff who attempts to file a complaint in a personal injury action with a county clerk but who does not have the filing fee should be deemed to have commenced the action within the contemplation of N.J.S.A. 2A:14-2 and R. 4:2-2.

Plaintiff was injured in an automobile accident on October 30, 1985. Plaintiff alleges that he attempted to file a pro se complaint with the Camden County Clerk on October 30, 1987 and that his complaint was rejected because he was unable to pay the filing fee. He obtained a waiver of the filing fee from the assignment judge and filed his complaint with the Camden County Clerk on November 9, 1987. Six of the seven defendants involved in this appeal obtained pretrial dismissals of the complaint on the ground that the complaint was filed more than

two years after the cause of action accrued. We hold that the dismissals must be reversed because we conclude the complaint was filed when it was presented to the county clerk for filing.

I

On October 30, 1985, plaintiff was involved in a motor vehicle accident while a passenger in a motor vehicle operated by his mother, defendant Martha Novack. The accident occurred at the intersection of Kresson Road and the driveway to St. Mary's Church in Cherry Hill. Defendants Michael Dever and Harry Chait were operators of other vehicles involved in the accident. Defendants William Rohrer, Village Apartments of Cherry Hill, Inc., Camden Diocesan Center, and St. Mary's Nursing Home were property owners in the vicinity of the accident. Plaintiff alleged they created or permitted a dangerous condition to exist that contributed to the accident. Between December 1985 and February 1986 plaintiff was represented in this matter by defendant Albert J. Olizi, Jr., an associate in the Stuart Jennings law firm. The attorney-defendants are not involved in this appeal.

During the pretrial phase of this case, the complaint was dismissed as to defendants (1) Michael Dever and William Rohrer pursuant to R. 4:6-2(e) for failure to state a claim (within two years after the accident); (2) Martha Novack, St. Mary's Nursing Home, Camden Diocesan Center and Village Apartments of Cherry Hill, Inc. based on the statute of limitations, N.J.S.A. 2A:14-2; and (3) Harry Chait pursuant to R. 4:23-5(a) because plaintiff failed to timely answer his interrogatories. In an order dated February 3, 1989, the trial court refused to reconsider or vacate the above dismissals. The same order denied plaintiff's application for the appointment of a guardian ad litem to prosecute the present litigation for plaintiff.

The dismissal motions of Dever, Rohrer, Novack and Chait were submitted to the court pursuant to R. 1:6-2 at times when

plaintiff was unrepresented by counsel. The record does not reveal whether the court was aware that plaintiff had a mental problem or that he had been adjudged incompetent when the trial court dismissed the complaint as to those four defendants. Nor does the record reveal whether the court was aware at the time of those dismissals that plaintiff had allegedly attempted to file his complaint on October 30, 1987 with the Camden County Clerk. According to the appellate record, the trial court was not aware of those facts until papers were filed in conjunction with a motion to vacate the dismissals.

The motion to vacate or to reconsider the dismissals as to defendants Dever, Rohrer, Novack and Chait was filed on or about January 13, 1989. By that time plaintiff was represented by Anthony J. Brady, Jr., an associate with Charles A. Lutz, P.A., who became plaintiff's attorney on November 30, 1988. In a certification that accompanied plaintiff's motion, plaintiff's counsel advised the court that plaintiff had been declared incompetent in an order dated March 18, 1985 and that his mother Martha Novack had been appointed as his guardian. Because the mother is a named defendant in this litigation, the attorney sought to have someone else appointed, pursuant to R. 4:26-2(b)(3), as a guardian ad litem for plaintiff in this litigation. In addition, certifications of plaintiff and of Gary Geist indicated that plaintiff attempted to file his complaint on October 30, 1987, but that the Camden County Clerk refused to file the complaint because plaintiff could not afford the $75 filing fee. Plaintiff was referred to the chambers of the assignment judge to seek a waiver of the filing fee. A waiver was obtained and the complaint was filed on November 9, 1987.

Medical reports reveal that when plaintiff was declared incompetent in March 1985, he had been experiencing "auditory and visual hallucinations" and "paranoid ideation." Dr. Herbert M. Adler, a psychiatrist, continued to treat plaintiff until November 29, 1988, which was well after the incompetency matter had been concluded. Dr. Adler ...


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