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Mitzner v. West Ridgelawn Cemetery Inc.

May 26, 1998

IRIS MITZNER AND BERNARD MITZNER, PLAINTIFFS-RESPONDENTS,
v.
WEST RIDGELAWN CEMETERY, INC., DEFENDANT-APPELLANT, AND WIEN AND WIEN, INC., DEFENDANT.



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

Before Judges Shebell, D'Annunzio and Coburn.

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

Argued May 13, 1998

We granted defendant West Ridgelawn Cemetery, Inc. ("Ridgelawn"), leave to appeal from a denial of its motion for summary judgment. The case poses this issue: may the two-year statute of limitations for personal injury actions, N.J.S.A. 2A:14-2, be tolled by the filing of a complaint in a court of another state when the "untimely" New Jersey action is filed after the first action has been dismissed for lack of personal jurisdiction but before the time to appeal from the order of dismissal has expired. We hold that it may and that the trial Judge, Sybil R. Moses, A.J.S.C, was correct in determining that under the circumstances of this case plaintiffs were entitled to a trial on the merits of their claim, which was for emotional distress caused by the negligent mishandling of a corpse, a well-recognized cause of action. See Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523, 536-38 (1988). Therefore, we affirm.

The alleged mishandling of the corpse occurred during burial at Ridgelawn's cemetery on February 28, 1995. In April 1996, plaintiffs' attorney filed a complaint in the Supreme Court of New York, a court of general jurisdiction. Plaintiffs were residents of New York, and defendant Wien & Wien, Inc., maintained two "memorial chapels" in that state.

Although Ridgelawn's answer included the affirmative defense of lack of personal jurisdiction, it did not press the issue for over a year. On July 10, 1997, after the New Jersey statute of limitations had run, Ridgelawn obtained an order from the New York court dismissing the action for lack of personal jurisdiction. The order also dismissed the action against the other defendant, Wien & Wien, Inc., but that dismissal was based solely on the doctrine of forum non-conveniens and was expressly conditioned on a waiver of any statute of limitations defense to a promptly instituted New Jersey action. Plaintiffs' attorney was served with the order on July 18. Under New York law, the time to appeal did not expire until August 18. N.Y. C.P.L.R. 5513 (McKinney 1997). On August 7, plaintiffs' attorney obtained an order to show cause in the New York court for reargument of Ridgelawn's dismissal. The matter was scheduled for a hearing on September 2, but it was apparently not pursued because on August 15, 1997, plaintiffs' attorney filed the subject complaint in the Superior Court of New Jersey.

Our primary reference point for resolution of the issue is Galligan v. Westfield Centre Serv., Inc., 82 N.J. 188 (1980), which involved these circumstances. Plaintiff filed a timely complaint in the Federal District Court of New Jersey. Based on the absence of diversity, the defendants moved to dismiss for lack of subject matter jurisdiction. While the motion was pending, but twenty-two days after the statute of limitations had run, plaintiff filed the same cause of action in the Superior Court of New Jersey. The defendants successfully moved for dismissal in the state trial court on the theory that the statute of limitations had run. The Supreme Court reversed and reinstated the action. Its analysis began with this statement:

Although statutes of limitations are of legislative origin, their harshness and lack of definitional clarity have led courts to develop a common law of limitations. The doctrines so fashioned attempt to implement fully the underlying legislative purposes to avoid the inJustice which would result from a literal reading of the general statutory language.

The most important of these purposes recognizes that eventual repose creates desirable security and stability in human affairs. Thus statutes of limitations compel the exercise of a right of action within a specific, reasonable period of time.

[Id. at 191-92 (emphasis added) (citations omitted).]

In addition to providing eventual repose, the Court noted that statutes of limitations serve the additional purposes of stimulating litigants to pursue their cause of action diligently, so that answering parties will have a fair opportunity to defend, and sparing the courts from litigation of stale claims. Id. at 192. The Court held that those purposes were met by the timely filing of the case in the federal court and by the lack of any appreciable passage of time before the action was refiled in state court. Id. at 194.

The Court had this to say on the issue of repose:

Defendants' repose in reliance upon the passage of time would not be justified in this case. While the federal action against them was still pending, defendants received notice that plaintiff was seeking redress in a State forum. Once the federal complaint was filed, defendants' sense of security could not reasonably exist before a dismissal. This is true despite the patent lack of federal jurisdiction. The principle of repose has its foundation in what Holmes called "the deepest instincts of man," not in abstract notions of jurisdiction. Prohibiting this ...


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