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Psolka-Zalek v. Zayas

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 17, 2007

JEAN M. PSOLKA-ZALEK AND WILLIAM ZALEK, PLAINTIFFS-RESPONDENTS,
v.
MODESTO ZAYAS, DEFENDANT, AND GREEN BROOK PONTIAC GMC, INC., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7724-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2007

Before Judges Lihotz and Simonelli.

By leave granted, defendant, Green Brook Pontiac GMC, Inc. (Green Brook), appeals from the denial of its motion for summary judgment based on the statute of limitations contained in N.J.S.A. 2A:14-2a.

This matter involves a motor vehicle accident that occurred on August 4, 2004. Plaintiffs filed a two-count complaint on September 27, 2006.*fn1 They did not serve the complaint on Green Brook. Instead, on October 3, 2006, they filed an amended complaint adding a count for property damage. Plaintiffs served the amended complaint on Green Brook on October 13, 2006.

Green Brook filed an answer on November 15, 2006, which contained a statute of limitations defense. Green Brook filed a summary judgment motion on December 11, 2006. At the time Green Brook filed the motion, no discovery had occurred, no arbitration or trial dates were set and the parties had not incurred any expert witness or trial preparation expenses. In response to the motion, plaintiffs' counsel admitted that he had not timely filed the complaint, and blamed his secretary for not timely mailing it to the court. However, after counsel gave the complaint to his secretary to mail, he did nothing to ascertain if the Clerk's office had received it.

Although the trial court acknowledged that the complaint was filed forty days after the statute of limitations had run, it denied the motion, finding as follows:

There is no indication here of any prejudice to the defendants. There is no indication that any evidence or discovery has been adversely affected as a result of the delay in filing. Clearly, this case is an exception to the rule where the statute should result in a dismissal of a plaintiff's claim.

"A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against this standard that we review the trial court's decision.

The general rule is that the two-year statute of limitations applies to personal injury actions. N.J.S.A. 2A:14-2a. There are very few exceptions, and the balancing test employed by the trial court is not among them. The Court has identified instances where a defendant's actions or inactions result in a waiver of the otherwise applicable defense. See Zaccardi v. Becker, 88 N.J. 245, 257-58 (1982) (equitable estoppel barred the defendants from raising a statute of limitations defense because they continued to engage in the litigation for seventeen months, during which there were a series of adjournments and appellate review of a motion to vacate dismissal); see also White v. Karlsson, 354 N.J. Super. 284, 291-92 (App. Div.) (the defendant was barred from relying on the statute of limitations where the parties appeared at arbitration, engaged in discovery, and expended substantial time, energy, and money preparing for trial, and where the defendant unreasonably delayed in moving for dismissal until the eve of trial), certif. denied, 175 N.J. 170 (2002). Otherwise, compliance with the statute of limitations is a prerequisite to filing suit. We reject plaintiffs' argument that the untimely filing resulted from excusable neglect. Counsel failed to act diligently to ascertain whether the complaint had timely reached the Clerk's office after he requested it be mailed. Luiz v. Sanjurjo, 335 N.J. Super. 279, 281-82 (App. Div. 2000). The motion for summary judgment was improperly denied.

Reversed.


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