Defendant, Mark Stern, M.D., filed a motion to dismiss plaintiff's complaint for failure to issue a summons within ten days after the filing of the complaint pursuant to R. 4:4-1. The facts upon which the motion is based are as follows:
On October 14, 1986, plaintiff, Nat Brew, was struck in the eye with a beer bottle. As a result of this injury to his eye plaintiff underwent surgery on October 29, 1986. Plaintiff subsequently filed a lawsuit against the owner of the business and premises located at 84 North Walnut Street, East Orange, New Jersey where he was assaulted. This complaint was assigned docket number W-054376-88.
On October 1, 1989, plaintiff filed the complaint against Dr. Stern, United Hospital Center, John Doe, M.D. and Richard Rowe, M.D., said latter two being fictitious names, alleging medical malpractice claims against Stern and the hospital, as well as the intentional tort of battery. No summons was issued by plaintiff's counsel and for a period of more than 17 months the complaint was not served upon Stern.
On July 25, 1990 plaintiff's counsel wrote Stern stating that he represented Brew who had been treated by Stern following injuries which occurred on October 14, 1986. A request was made to have Stern send plaintiff's counsel "a complete report, including initial history, findings, diagnosis, nature and course of treatment, condition on discharge and prognosis, after you
have completed treatment of this patient." The letter further requested the results of any x-ray findings and an itemized bill showing the dates of plaintiff's visits to Stern and whether the bill was paid. In the last paragraph of this letter plaintiff's counsel wrote "We shall, of course, protect your bill out of any settlement proceeds received. Please do not send any reports to any insurance company without first giving us the opportunity of seeing said report." Enclosed with the letter was a $200 check for copies of plaintiff's records and report. Nowhere in this letter does plaintiff's counsel tell Stern that plaintiff has filed a malpractice and intentional tort action against him.
On August 17, 1990, a notice of dismissal pursuant to R. 1:13-7 was sent to plaintiff's counsel. Plaintiff's counsel filed a certification in opposition to the motion to dismiss in which he set forth the following:
2. We are in the process of ascertaining the correct identity of the various defendants named in the complaint so that arrangements can be made for proper service of process.
A request was made that the matter be continued on the active trial list.
On September 11, 1990, Stern submitted a six-page report to plaintiff's counsel in compliance with his request of June 25, 1990.
In December 1990, pursuant to R. 1:13-7, a second notice of motion to dismiss the complaint for lack of prosecution was sent to plaintiff's counsel. In response to this motion to dismiss plaintiff's counsel filed a second certification dated December 20, 1990 in which he repeated paragraph two of the earlier certification that he was in the process of ascertaining the correct identity of the various defendants for the purposes of service. Because counsel inserted an incorrect docket number the certification was not made part of the papers relating to the motion and the matter was dismissed by the court on February 23, 1991. Upon motion by plaintiff's counsel, based upon a certification from an associate in plaintiff's counsel's
office the matter was reinstated and returned to the active calendar by an order ...