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DiMura v. Knapik

Decided: November 16, 1994.

LILLIAN DIMURA, PLAINTIFF-APPELLANT,
v.
ANDREW KNAPIK, ESTATE OF DANIEL L. GIULIANO, THE STONE PONY, KERRY ENTERPRISES, XYZ CORP., JOHN DOE, RICHARD ROE, JANE DOE AND MARY ROE (FICTITIOUS NAMES FOR ENTITIES OR INDIVIDUALS WHOSE TRUE IDENTITY IS UNKNOWN AT PRESENT), DEFENDANTS-RESPONDENTS.



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

Before Judges Dreier, Villanueva and Bilder.

VILLANUEVA

The opinion of the court was delivered by VILLANUEVA, J.A.D.

Plaintiff appeals from the dismissal without prejudice of her personal injury complaint because the proceeding against one of the defendants was stayed in the Bankruptcy Court and from the denial of her motion to file an amended complaint against the New Jersey Highway Authority (Garden State Parkway) and the State of New Jersey, substituting them for fictitious defendants. We reverse the dismissal of the complaint, but affirm the denial of the motion to amend the complaint.

On or about June 27, 1989, plaintiff, Lillian DiMura, was a passenger in a vehicle, owned by Andrew Knapik and driven by Daniel Giuliano, which was proceeding northbound on the Garden State Parkway (Parkway). At about Milepost 115.2, an animal ran into the highway causing Giuliano to swerve into a guardrail which pierced the windshield of the car causing Giuliano's death and severe injuries to plaintiff.

Plaintiff's attorney filed a motion dated October 11, 1989 for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9 against the New Jersey Highway Authority and the State of New Jersey which motion the court granted.

On November 5, 1990, plaintiff's substituted counsel filed a complaint alleging negligence against Andrew Knapik, the Estate of Daniel L. Giuliano (Giuliano having died shortly after the accident), The Stone Pony (the club where Giuliano and DiMura had been entertaining prior to traveling on the Parkway and where both had apparently been served drinks), ABC Corp., XYZ Corp., John Doe, Richard Roe, Jane Doe and Mary Roe.

On January 17, 1991, plaintiff's lawyer was notified that Kerry Enterprises, t/a The Stone Pony, had filed a Petition in Bankruptcy, placing a stay on all suits against The Stone Pony. This stay is apparently still in effect. On March 26, 1991, a first amended complaint was filed to include Kerry Enterprises as a defendant.

Defaults were subsequently entered against defendants, The Stone Pony, Andrew Knapik and Estate of Daniel L. Giuliano. Because The Stone Pony had gone into bankruptcy, the trial Judge refused to conduct the proof hearing because he could not assign a dollar amount to each defendant, even as to the non-bankrupt defendants, until the stay was lifted. See R. 4:43-2(d). Therefore, the case was put on an inactive status. The case was returned thereafter to plaintiff's first lawyer.

On September 17, 1992, a notice of motion to dismiss plaintiff's complaint for want of prosecution pursuant to R. 1:13-7 was sent by the court to plaintiff's first lawyer. Notwithstanding the inactive status, the case was administratively dismissed without prejudice.

The second attorney was again substituted as counsel for plaintiff on June 22, 1993. He was given the file, but it did not contain the administrative dismissal. He found out about the dismissal order only when he went to the county clerk's office and saw the original order.

Counsel then moved to vacate the administrative dismissal and have the complaint amended to include the New Jersey Highway Authority (Garden State Parkway) and State of New Jersey, their agents, servants or employees, or independent contractors. The motion was denied by order dated October 22, 1993, but the Judge did not give any reasons for the denial, even though the trial Judge is required to do so. R. 1:6-2(f). Furthermore, once a notice of appeal has been filed, reasons must also be given to the Appellate Division, R. 2:5-1(b), which was not done.

The motions were resubmitted and by order dated November 19, 1993, the motions were once again denied without prejudice and the Judge ...


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