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Exum v. Brody

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 25, 2008

TERENCE EXUM, PLAINTIFF-APPELLANT,
v.
DAVID BRODY AND JOSEPH KATZ, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-002862-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 15, 2008

Before Judges C.S. Fisher and Grall.

In this appeal, we consider whether the trial judge abused his discretion by denying the last of plaintiff's motions to restore this case to the active trial calendar. We affirm in part and reverse in part.

Present counsel for plaintiff filed a complaint on plaintiff's behalf on June 6, 2005. The complaint alleged that plaintiff was injured on May 20, 2004, while an invitee at 828 Ocean Avenue, Jersey City. The complaint further alleged that this property was owned, leased, operated or managed by defendant David Brody or Joseph Katz or both, or by other persons or entities whose identities were unknown.

In September 2005, plaintiff hired another attorney (the second attorney) to replace present counsel. The second attorney filed a substitution of attorney on September 21, 2005. Apparently because service of process had not been timely effected, the court administratively dismissed the action by rule on December 1, 2005. See R. 1:13-7; R. 4:43-2.

Stating only that he had substituted as counsel for plaintiff a few months earlier, the second attorney moved for restoration of the case to active trial status. This motion was granted on February 17, 2006.

On June 24, 2006, the matter was again administratively dismissed by rule. The second attorney filed a motion a few months later, seeking the restoration of the action and leave to amend the complaint to add another party. The supporting certification is ambiguous because it left two blanks in its text; it states in relevant part:

3. Plaintiff has learned through investigation on the property that _____ is the owner of said property. Plaintiff served Yakov Fuchs on February 08, 2006 at 9:10 P.M. as per the attached affidavit of service. Also, attached herein please find a proposed amended complaint.

4. It is necessary to add _________ as a party to this matter. I request the [c]court to amend the complaint to reflect such.

The motion judge apparently assumed that Yakov Fuchs was the person whose name should have been set forth in the blanks in the second attorney's certification and, thus, entered an order on November 3, 2006, which restored the matter to the active trial calendar and granted plaintiff leave to amend his complaint to add Yakov Fuchs as a defendant.*fn1

The affidavit of service that was submitted with the motion to reinstate and to amend the complaint indicates that Yakov Fuchs was successfully served on February 8, 2006, when the process server left a copy of the "summons and complaint" at Fuchs's "place or usual place of abode" with "a competent household member over 14 years of age residing therein." Obviously, since leave to file an amended complaint had not been granted as of February 8, 2006, we can at most assume that the original complaint, which did not name Yakov Fuchs as a defendant, was the pleading that was served. Adding to these confounding circumstances is the fact that the affidavit of service indicated Fuchs's address as 828 Ocean Avenue, Jersey City.

The matter was again administratively dismissed for lack of prosecution on June 9, 2007. Present counsel, who was plaintiff's original counsel, substituted in as counsel for plaintiff in place of the second attorney on August 7, 2007. Present counsel also filed a motion on August 29, 2007 for the reinstatement of the action. He asserted in his supporting certification that a search of the second attorney's file indicates that "the target defendants have not been served with the [c]omplaint and that their whereabouts are presently unknown." Present counsel asserted his intention "to locate the target defendants, have them served with the [c]omplaint and otherwise diligently prosecute this matter." No details were provided to explain why these steps had not been taken in the more than two years that had elapsed since the complaint was filed.

A judge other than the judge who granted the earlier motions denied this third motion for reinstatement by order entered on September 20, 2007. In his oral decision, the judge concluded that the background of this case needs to be addressed in more detail than the moving papers provide. There is no explanation whatsoever in the moving papers as to why these long gaps and delays took place and nothing was done.

The certification simply says that between September 2005 and August 2007, [the second attorney] represented the plaintiff.

It says nothing about what was done or why nothing was done.

Plaintiff moved for reinstatement for the fourth and last time on December 6, 2007. His present counsel's moving certification again provided generalities about the prior motions and substitutions of attorney that were filed. He further asserted that

9. Upon reacquiring the file, I arranged for a complete title search to be conducted and learned that David Brody[*fn2 ] may in fact have been the owner of the property on which my client was injured on May 20, 2004.

10. On August 14, 2007, I wrote to [the second attorney] asking him to contact me to discuss why the case was dismissed and why he brought the defendant, Fuchs, into the case since it appears that he did not own the property at the time of the accident . . . . [The second attorney] did not respond to my letter.

Present counsel's certification then indicated that he moved in August 2007 for reinstatement and set forth the reasons why that motion was denied. He asserted that in further pursuing the matter, he wrote to the second attorney on November 5, 2007, asking for "a detailed explanation as to why 'long gaps and delays took place and nothing was done.'" Present counsel indicated that the second attorney provided a certification; he attached a copy of the second attorney's certification to his own moving certification. The second attorney's certification states in relevant part:

3. After substituting in for [present counsel], it became quite apparent that there was difficulty in establishing who in fact was the owner of the property in this matter.

4. The undersigned took numerous actions to determine the identity of [the] owner. Initially, we attempted to serve a Mr. David Brody, who resides in Rockland County, New York. After service upon him, he notified us that he was not the owner of the property.

5. Afterwards, I personally visited Jersey City Department of Taxation, where it was determined that the owner was a Mr. Yakov Fuchs.

6. On February 8, 2006, the [s]ummons and a copy of the [c]omplaint in this action was served via mail and post[ed] upon the [d]efendant Yakov Fuchs at the address in question. The [d]efendant failed to file an answer.

7. Afterwards, it was determined that [d]efendant Fuchs did not live at the premises.

8. Over the past year, my office then hired a private investigator, to determine the whereabouts of Mr. Fuchs or any other owners of the premises. At a great expense to the undersigned, we even had the investigator "stake out" the property to interview witnesses and search for the owners, to no avail.

9. The undersigned has taken all possible steps necessary to effectuate service on the owners of the property. As such, I ask the [c]court to grant [p]laintiff's motion to vacate the initial [sic] dismissal in this matter.

The motion judge denied this motion as well. In his oral decision, the judge considered the application, despite its label, to actually be a motion for reconsideration of his September 20, 2007 order. The judge also ruled that even if viewed as a new motion for reinstatement, the information provided was not "enlighten[ing]" and there was also no sufficient explanation as to why this new information was not previously supplied. As a result, the judge entered an order denying the motion on January 4, 2008.

Plaintiff has appealed the January 4, 2008 order, arguing that the motion judge erroneously viewed the application as a motion for reconsideration, that the motion judge failed to view the application with liberality, and that the motion judge erred in finding that the named defendants might suffer prejudice if the motion were to be granted.

Initially, we agree with plaintiff that the motion in question was not a motion for reconsideration. The prior motion was denied -- and quite correctly -- because scant information was provided to explain plaintiff's delays. When plaintiff moved a few months later with additional information, he was not actually seeking reconsideration of the earlier order but was seeking the same relief based upon new information. Plaintiff was entitled to have that motion examined by resort to the standard that applies to motion for reinstatement and not the standard that applies to reconsideration motions.

However, this determination does not warrant reversal because the motion judge alternatively viewed the motion as if it was not a motion for reconsideration and concluded that the information supplied remained unenlightening. The judge also concluded that plaintiff failed to demonstrate that defendants would not be prejudiced if the motion was granted.

We share the motion judge's consternation on the inability of plaintiff, through his representatives, to expeditiously ascertain the owner of title to 828 Ocean Avenue, Jersey City at the time of the alleged injury, or to move with greater speed to effectuate service of process in this matter on any of the potential owners, assuming there was legitimate doubt about ownership. We also agree that the delays in this case are extraordinary. We note that David Brody was named in the original complaint as the owner of the property. A good deal of time was thereafter expended because plaintiff's second attorney appears to have accepted as true Brody's alleged assertion that he "was not the owner of the property." When Brody said that --again, assuming he did say that -- the statement may very well have been true, since a deed in the appendix indicates a transfer of ownership from Brody to Fuchs on September 13, 2004. It is not clear to us whether the second attorney simply took Brody's word for it -- and then went off on a wild goose chase to locate Fuchs -- or whether the matter was simply allowed to languish.

Accordingly, the motion judge was quite right in denying relief. Although such motions are to be liberally indulged, see, e.g., Ghandi v. Cespedes, 390 N.J. Super. 193 (App. Div. 2007), the right to relief may not be invoked merely on request. Here, the record demonstrates that little if anything of value has been accomplished by plaintiff for more than two years since the filing of the complaint. As the judge correctly observed, plaintiff has provided scant information regarding the extraordinary delays that have occurred and the little information that was provided has proved unenlightening. We agree that any defendants having no knowledge of this action would be unduly prejudiced by the action's continuation at this late date.*fn3

However, we observe that the second attorney indicated that Brody was served, although he did not indicate when that occurred. Accordingly, while we affirm that part of the order of January 4, 2008 that denies reinstatement of the complaint as it applies to Fuchs and Katz, we vacate the order insofar as it applies to the claim asserted against Brody. As we have observed, Brody was named in the original complaint and it appears at least arguable, until shown otherwise, that he was served with process. In advance of the proceedings on remand, on a date set by the motion judge, plaintiff should provide further information as to the date and manner of service of process on Brody. The judge should also allow a reasonable period of time for Brody to respond to the motion to reinstate and ultimately determine, in light of when Brody received notice of the action, whether Brody would be prejudiced by the reinstatement of the case against him. Upon ascertaining those and any other relevant facts, the motion judge should again determine whether reinstatement as to Brody is appropriate.

Affirm in part; vacate in part; and remand for additional proceedings in conformity with this opinion. We do not retain jurisdiction.


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