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Moore v. 240 South Harrison Realty

June 26, 2008

ALLISON MOORE, PLAINTIFF-APPELLANT,
v.
240 SOUTH HARRISON REALTY, C/O WPG, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0390-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 23, 2008

Before Judges Sapp-Peterson and King.

Plaintiff, Allison Moore, appeals from the trial court order granting summary judgment dismissing her amended complaint against defendant, 240 South Harrison Realty, based upon the statute of limitations. We affirm.

The facts giving rise to the dismissal are not in dispute. On January 14, 2004, plaintiff slipped and fell on ice located on defendant's property, an office complex where plaintiff was employed. Defendant was the owner of the premises where plaintiff's employer, the Division of Youth and Family Services, had leased office space for twenty years. On January 13, 2006, one day shy of the statute of limitations, plaintiff filed a complaint naming as defendant the "owner of 240 South Harrison Street, East Orange, New Jersey[,] John Does 1-10, and XYZ companies 1-10[,] names being fictitious[,]" but did not serve the complaint and summons. Six months later, plaintiff filed an amended complaint naming defendant and thereafter served the complaint and summons upon defendant. Defendant filed an answer denying the allegations in the complaint and raising the statute of limitations as a separate defense.

Defendant subsequently filed a motion seeking dismissal of the complaint on the grounds that plaintiff failed to commence her lawsuit within the two-year time period set forth in N.J.S.A. 2A:14-2.*fn1 Plaintiff opposed the motion, arguing that under the fictitious name rule, the amended complaint, filed six months after the expiration of the statute of limitations, was not barred. In support of plaintiff's opposition, plaintiff's attorney submitted a certification stating,

3. When I filed a complaint in this matter on January 12, 2006, I did not know the proper name of the owner.

4. In accordance with [Rule] 4:26-4, I filed a complaint against a fictitious name.

5. Also in accordance with that rule, I identified the property and the defendant as the owner of 240 South Harrison Street, East Orange, New Jersey.

6. On that date, I also wrote to the Department of Property Taxation of the City of East Orange, New Jersey, and on January 23, 2006, I received a notification from the City of East Orange that the proper owner of the property was 240 South Harrison Street Realty, (attached hereto as Exhibit A).

7. Since the matter had not been served, and since there had been no responsive pleading, I amended the complaint to include the proper owner as 240 South Harrison Street, East Orange, New Jersey.

The motion judge granted defendant's motion, finding that plaintiff could not avail herself of the fictitious party rule because the record was devoid of any evidence of due diligence on the part of plaintiff to ascertain the true identity of defendant prior to the expiration of the statutory filing period. Plaintiff filed a motion for reconsideration, arguing that the motion judge's decision was palpably incorrect because she had complied with the "fictitious pleading requirements as set forth in the Rules when [plaintiff's counsel] brought this case in January." The court denied the motion and the ensuing appeal followed.

On appeal, plaintiff claims the motion judge erred in dismissing the complaint because plaintiff satisfied the requirements under the fictitious party rule. Plaintiff also contends that defendant was not ...


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