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Dellosantos v. Estates

May 22, 2008

JOSEPH DELLOSANTOS, PLAINTIFF-APPELLANT,
v.
CAHN ESTATES, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-80-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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