On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7759-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Simonelli.
Plaintiffs appeal from the August 17, 2007 order denying the motion to reinstate their complaint that was dismissed without prejudice in January 2001. Plaintiffs argue that defendants cannot demonstrate prejudice and they should not bear the consequences of the inaction or neglect of their attorney. We disagree and affirm.
Plaintiffs bought a house in 1996 in the belief it was a two-family house. They soon learned that the house was in a one-family zone and could not be used as intended. Two years later, plaintiff filed a complaint against defendants Christopher Struben and Buttafuoco, Karpf & Arce (Buttafuoco), Mary DeSantis, Isabelle J. Camporeale, Louis Curcio, as executor of the Estate of Lena Curcio, Carol Charles, Coldwell Banker Residential Real Estate Services, Inc., and Tom Boniakowski and Boniakowski Agency, Inc. Defendants Struben and Buttafuoco were retained by plaintiffs as their attorneys for the purchase of the house. DeSantis and Curcio were the sellers of the house. Camporeale was the attorney for the sellers. Charles was a licensed real estate broker associated with Coldwell Banker who plaintiffs consulted to acquire a residential property. Defendants Boniakowski and Boniakowski Agency, Inc. were the listing brokers for the sale of the house.
In April 1999, the complaint against defendant Buttafuocco was dismissed. Plaintiffs did not seek to reinstate the complaint against this defendant. In January 2001, on the second trial date, the attorney representing plaintiffs at that time represented that an application for a variance had been filed and suggested entry of a stipulation of dismissal without prejudice with the ability to reinstate the complaint if the variance was denied. All parties agree that the stipulation was executed; no party has a copy of the document.
The record reveals that plaintiffs' attorney had not filed a variance application. Plaintiffs retained another attorney in 2003 to pursue the variance. When the application was filed, plaintiffs sought not only a use variance but also a minor subdivision of the property with bulk variances. In July 2005, plaintiffs obtained the subdivision and bulk variances; the use variance was denied.
Plaintiffs did not file their motion to reinstate the 1998 complaint until June 2007. In addition to reciting the foregoing chronology, they advised the court that their prior attorney had misled them about the status of the litigation and the variance application. They also asserted that defendants would suffer no prejudice. Defendants replied that the lapse of time precluded reinstatement. DeSantis, one of the sellers, had died; other persons with knowledge of the original transaction could not be located. No depositions had been taken prior to the January 2001 dismissal. Noting simply that too much time had elapsed, Judge Ferencz denied the motion.
Resolution of the motion to reinstate the complaint resided in the discretion of the motion judge. Comeford v. Flagship Furniture Clearance Ctr., 198 N.J. Super. 514, 517 (App. Div. 1983), certif. denied, 97 N.J. 581 (1984). We may not disturb that decision unless plaintiffs establish that the decision was not premised on consideration of all relevant factors, was based on consideration of irrelevant or inappropriate factors, or is simply a clear error of judgment. Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). Measured by this standard, we discern no basis to disturb the order.
Plaintiffs seem to have been ill-served by the attorney they originally engaged to prosecute this litigation and to seek a use variance. Nevertheless, defendants should not be required to suffer the consequences of the neglect, inattention, and misrepresentations of plaintiffs' former attorney. The complaint was filed ten years ago. At least one of the defendants is dead. This defendant, DeSantis, presumably had information about the use of the house over the years. Other witnesses cannot be located. No depositions had been taken by January 2001. In this instance, the passage of more than six and one-half years between dismissal and plaintiffs' motion for reinstatement was a critical consideration. The circumstances demonstrate that Judge Ferencz acted reasonably.
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