May 22, 2008
JOSEPH DELLOSANTOS, PLAINTIFF-APPELLANT,
CAHN ESTATES, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-80-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2008
Before Judges Collester and C.S. Fisher.
Plaintiff's complaint was administratively dismissed on the trial court's own motion due to plaintiff's delay in effecting service of process. In this appeal, we vacate the trial judge's order denying plaintiff's motion to reinstate, and we remand for a plenary hearing to explore the circumstances regarding both plaintiff's delay in effecting service of process and defendant's allegations of prejudice caused by the delay.
On January 5, 2004, plaintiff filed a complaint based on his allegation that he was injured when he slipped and fell, on February 19, 2003, at garden apartments in Paterson owned by defendant Cahn Estates. Prior to the filing of the complaint, plaintiff's attorney had written to defendant on March 20 and May 20, 2003.*fn1 These letters were sent to a post office box; plaintiff's counsel asserts that these letters were not returned as undeliverable and he received no response from defendant.
Because of the inherent difficulties in effecting service of process on a defendant at a post office box, plaintiff's attorney had a process server, on January 20, 2005, attempt to effect personal service at the only street address for defendant of which he was aware: 347-361 East 27th Street, Paterson, the location of the garden apartments where the alleged accident occurred. The process server later advised that he was unsuccessful because defendant did not maintain an office at those premises and the owner could not otherwise be found there.
Plaintiff's attorney also mailed, on February 28, 2005, the summons and complaint to the post office box to which the pre-suit letters were sent; defendant did not respond and this correspondence was not returned to sender.
Due to the delay in effecting service of process, the trial court administratively dismissed the complaint pursuant to R. 1:13-7 on July 24, 2005. Thereafter, plaintiff's counsel contracted for a search of corporate records for defendant's whereabouts; this search uncovered no information, suggesting defendant was unincorporated.
An internal search of counsel's own files in November 2006 revealed that plaintiff's counsel had previously filed suit against this defendant on behalf of another client. In examining that file, plaintiff's counsel claims that he learned that defendant could be found at 200 Parker Avenue in Clifton. Personal service was made upon an individual at that location on December 19, 2006. Plaintiff's counsel received a letter dated January 11, 2007 from an attorney who advised that he represented defendant.
Having effected service, plaintiff moved, on February 13, 2007, for the reinstatement of his complaint. In opposition, defendant submitted a certification of Charles Alfieri, who asserted that he was the managing partner of defendant, which he identified as a New Jersey partnership. In complaining of the late notice of the suit, Alfieri asserted that, as a former tenant, plaintiff "knew exactly where to reach me and/or my company"; he did not explain how plaintiff would know how to reach defendant other than through the post office box to which the pre-suit letters were sent. Alfieri also questioned the veracity of plaintiff's attorney, claiming that the attorney should have known where to affect service because he had sued defendant, on behalf of another client, in late 2004.
Although he acknowledged that he did "not know where [plaintiff] claims . . . he fell or what caused him to fall," Alfieri nevertheless asserted in the opposing certification that defendant "will be severely prejudiced in the defense of the case due to [plaintiff's] delay" because defendant "made many changes at the property where plaintiff claims he fell including new blacktop work applied to the walkways and parking lots of over 17,000 square feet as well as spot patchwork of the sidewalks."
The trial judge denied plaintiff's motion to reinstate by way of an order entered on March 20, 2007. Handwritten at the bottom of the judge's order was the only rationale given for his ruling:
Application is denied. Defendant's prejudice as a result of this lengthy delay in seeking restoration convinces this court vacating order of dismissal would be inequitable.
In his appeal of this order, plaintiff argues that the trial judge's handwritten decision does not comport with the requirements of R. 1:7-4(a), and that the judge's refusal to vacate the order of dismissal constituted an abuse of discretion. We need not consider the former argument because we agree that, without further exploration into the circumstances, the trial judge should not have denied the motion.
We first observe that the judge was correct in recognizing that he was required to consider both the pace at which plaintiff effected service of process and the prejudice to defendant if reinstatement was granted. See Ghandi v. Cespedes, 390 N.J. Super. 193, 197-98 (App. Div. 2007); Rivera v. Atl. Coast & Health Care Rehab. Center, 321 N.J. Super. 340, 346-47 (App. Div. 1999). However, the trial judge was mistaken in concluding that the existing record permitted any clear understanding about those factors.
In considering whether plaintiff proceeded with appropriate speed in effecting service of process, the judge should have delved further into whether information leading to defendant's whereabouts was readily available to plaintiff. We are concerned, as a general matter, that a landlord, with no office at its apartment complex, could hamper a claimant's ability to effect service by operating through a post office box in its communications with its tenants and then later complain of the delay in service of process caused by the landlord's lack of visibility. Here, the contention of defendant's managing partner that plaintiff should have known how to find him, which is otherwise unexplained in the opposing certification, should be further explored, as should plaintiff's efforts to obtain a viable address for service of process.
The judge should also have explored the question of prejudice. Defendant's managing partner asserted in opposition to the motion for reinstatement that he was unaware of where plaintiff claims to have fallen, but that repairs had been made to the property since the date of the alleged occurrence. Assuming repairs or alterations were made to the premises does not necessarily demonstrate that defendant would be prejudiced if the case were allowed to proceed to a resolution on its merits. Obviously, if plaintiff tripped on a sidewalk, it would be irrelevant if the defendant had, in the meantime, replaced the roof. Defendant's uncertainty about where plaintiff claims to have slipped, and the possibility that the area has been altered in the interim, does not conclusively demonstrate that defendant will be prejudiced if the case were to proceed; indeed, it only demonstrates that there is a need for a further inquiry into the location of the accident and whether and how defendant has altered that area since the time of the accident. And, even if it were assumed that defendant had altered the site of the accident without notice of the claim, it does not necessarily follow that defendant's ability to respond to this suit on its merits has been prejudiced. In short, there are simply too many unanswered questions that negate any fair resolution of whether defendant will be prejudiced if reinstatement is granted.
Moreover, as we have already indicated, plaintiff's attorney has asserted that he mailed two letters prior to filing suit and that he later mailed the summons and complaint to defendant's post office box. Defendant did not deny through the certification of its managing partner that it utilized that post office box at the times those materials were mailed to it. Indeed, defendant has not even denied receipt of those mailings; the managing partner asserted only that his first notice of this lawsuit was when personal service was effected on November 19, 2006. This statement does not exclude the possibility that someone else affiliated with defendant received the earlier mailings. There should be further examination into whether these mailings were received by defendant, or whether it is appropriate to presume they were received since they were apparently not returned by the post office. See, e.g., SSI Med. Servs., Inc. v. State Dep't of Human Servs., 146 N.J. 614, 621 (1996) (citations omitted) (finding that there is a "presumption that mail properly addressed, stamped, and posted was received by the party to whom it was addressed," and holding that "[t]he conditions that must be shown to invoke the presumption are (1) that the mailing was correctly addressed; (2) that proper postage was affixed; (3) that the return address was correct; and (4) that the mailing was deposited in a proper mail receptacle or at the post office"). And there should be further examination into whether defendant was otherwise aware of plaintiff's claim earlier than when the summons and complaint were finally personally served. Even if the earlier mailings cannot be equated with the effective service of process required by our rules, their receipt would demonstrate defendant's knowledge of the claim earlier than November 19, 2006.
We remand for a plenary hearing at which these and other relevant questions should be explored. In his further consideration of the motion, we remind the trial judge that, as a general matter, the right to "reinstatement is ordinarily routinely and freely granted when plaintiff has cured the problem that led to the dismissal," Rivera, supra, 321 N.J. Super. at 346, and we commend to the trial judge the following comments of Judge Cohen in speaking for the court in Audubon Volunteer Fire v. Church Const. Co., 206 N.J. Super. 405, 406 (App. Div. 1986):
We appreciate the desirability of the prompt disposal of cases. Courts should not forget, however, that they merely provide a disinterested forum for the just resolution of disputes. . . . Eagerness to move cases must defer to our paramount duty to administer justice in the individual case.
See also Ghandi, supra, 390 N.J. Super. at 196-98. After ascertaining the relevant facts at the plenary hearing, the trial judge must exercise sound discretion in determining whether a sanction is warranted and, if so, whether that sanction must be a dismissal of the action or whether there "are ways short of dismissal" to redress any harm generated by the circumstances. Audobon Volunteer Fire, supra, 206 N.J. Super. at 407. In this regard, assuming there is cause to impose a sanction, we caution that it is relevant to know whether it was plaintiff or his attorney that was dilatory. See Ghandi, supra, 390 N.J. Super. at 198 (observing that, in these circumstances, "courts should be reluctant to penalize a blameless client for the mistakes of the attorney").
We vacate the order denying reinstatement and remand for further consideration of the factual questions we have posed, as well as any other relevant questions, through the judge's conducting of a plenary hearing in conformity with the letter and spirit of this opinion. We do not retain jurisdiction.