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Moore v. 240 South Harrison Realty

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 prejudiced by the delay in filing the amended complaint.

Because plaintiff's injury occurred on January 14, 2004, she had two years from the date of the injury to commence her action to recover damages for the injuries she allegedly sustained. N.J.S.A. 2A:14-2. Although she filed her complaint one day before the two-year period expired, the complaint did not name the defendant. Instead, plaintiff captioned her complaint with a fictitious party. Rule 4:26-4 provides:

In any action ... if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained.

"The purpose of the rule is to render timely the complaint filed by a diligent plaintiff, who is aware of a cause of action against an identified defendant but does not know the defendant's name." Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11 (2005). When properly utilized, the rule permits a plaintiff to file an amended pleading pursuant to Rule 4:9-3, adding the previously unnamed defendant. The amended pleading relates back to the date of the filing of the original complaint. R. 4:9-3. However, the rule does not offer protection to the aggrieved party who, before the running of the statute of limitations, has had sufficient time to discover the identity of the unknown defendant through the exercise of due diligence but fails to do so. Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super. 203, 206-08 (App. Div. 1999), see also Cardona v. Data Sys. Computer Ctr., 261 N.J. Super. 232, 233-35 (App. Div. 1992) (affirming dismissal of the plaintiff's complaint where, from the police report, the plaintiff could have discovered the identity of the defendant, with whom the plaintiff had been involved in a motor vehicle accident).

The obligation to diligently investigate and determine the identity of potentially liable parties precedes the filing of the initial complaint. Cardonna, supra, 261 N.J. Super. at 235. That obligation continues after the complaint has been filed.

Mears v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 630 (App. Div. 1997). Moreover, once the fictitious defendant has been identified, plaintiff must promptly move to amend the complaint. Johnston, supra, 326 N.J. Super. at 208.

In the present matter, the record established that defendant purchased the premises in this matter in 1987 and continued be the registered owner of the property as of the date of plaintiff's accident and beyond. Plaintiff's opposition to defendant's motion contained no explanation of any efforts undertaken immediately after plaintiff's fall to ascertain the identity of the property owner. Although plaintiff slipped and fell on ice outside of the very building where she worked, she provided no explanation for why she failed to make inquiry of her employer as to the identity of the property owner during the two-year period prior to the expiration of the statutory filing period.*fn2 Of additional significance is the fact that shortly after plaintiff filed her original complaint, she received notification from the City of East Orange that identified defendant as the property owner. Nonetheless, the amended complaint, inexplicably, was not filed until six months later.

Given the absence of any evidence of due diligence to ascertain defendant's identity prior to filing the complaint and after defendant's identity was known, the trial court did not err when it dismissed the complaint without considering whether defendant was prejudiced by the delay in joining it to the action. We recognize that prejudice to the defendant or lack thereof is a critical factor in analyzing whether relief should be granted pursuant to Rule 4:26-4. Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 123 (1973). Nonetheless, as the court explained in Matynska v. Fried, 175 N.J. 51, 53 (2002), there is a threshold requirement of due diligence that a plaintiff must satisfy. Plaintiff has failed to meet that threshold here.

Affirmed.


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