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Exum v. Brody

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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