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Polis v. Hartmaier

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 6, 2008

GEORGE POLIS, PLAINTIFF-APPELLANT,
v.
WILLIAM B. HARTMAIER, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-637-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 23, 2008

Before Judges Gilroy and King.

This is a personal injury automobile negligence action in which plaintiff George Polis appeals from the October 20, 2006, order, which granted summary judgment to defendant William B. Hartmaier. Plaintiff also appeals from the January 5, 2007, order, which denied his motion seeking to amend the complaint to name Trump Plaza Casino Hotel (the Hotel), John W. Smith, and State Farm Insurance Company as defendants, substituting the true names of three previously-named fictitious party defendants. Lastly, plaintiff appeals from the order of March 9, 2007, which denied his motion for reconsideration. We affirm.

On February 13, 2004, plaintiff was the owner and operator of an automobile that had been involved in an accident with an automobile owned by Hartmaier and insured by State Farm Insurance Company. At the time of the accident, Hartmaier's automobile was operated by John W. Smith, a valet parking attendant of the Hotel, located in Atlantic City. Prior to the accident, Hartmaier, on arriving at the Hotel, had given his keys to Smith to park his automobile. The accident occurred while Smith was in the process of parking the automobile.

On February 4, 2005, plaintiff filed his complaint, naming only Hartmaier and fictitious parties as defendants, even though plaintiff was aware that Hartmaier's automobile was operated by Smith, an employee of the Hotel. On August 10, 2006, Hartmaier moved for summary judgment, contending that Smith was not acting as his agent, servant, or employee at the time of the accident. On October 20, 2006, Judge Daryl F. Todd entered an order granting the motion, determining in a memorandum of decision that Hartmaier had overcome the presumption that Smith was acting as his agent, servant, or employee at the time of the accident.

On December 5, 2006, plaintiff filed a motion seeking to amend the complaint to substitute the true names of Smith, the Hotel, and State Farm Insurance Company in place of the fictitious party defendants previously pleaded. On January 5, 2007, the motion was denied. On March 9, 2007, Judge Todd denied plaintiff's motion for reconsideration.

On appeal, plaintiff argues:

POINT I.

THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT FOR THE DEFENDANT BASED ON THE LAW OF AGENCY.

POINT II.

THE TRIAL COURT ERRED WHEN IT RIGIDLY APPLIED R. 4:26-4 AND DENIED PLAINTIFF'S MOTION TO AMEND ITS COMPLAINT TO NAME THIRD PARTY DEFENDANT AS A DIRECT DEFENDANT.

We have considered each of plaintiff's arguments in light of the record and applicable law and find the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(e). We affirm substantially for the reasons expressed by Judge Todd in the three memorandums of decision, affixed to the orders of October 20, 2006; January 5, 2007; and March 9, 2007.

Affirmed.

20080206

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