September 16, 2008
LISA M. ELIOPOULOS, PLAINTIFF-APPELLANT,
BROOKVIEW TERRACE CONDOS, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-6093-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Payne and Alvarez.
Plaintiff, Lisa Eliopoulos, appeals from an order denying her motion to restore her complaint against defendant, Brookview Terrace Condos, arising from a slip and fall in a stairwell on condominium premises and from an order denying reconsideration.
The record discloses that, on August 23, 2001, plaintiff fell down several stairs at the condominium after allegedly tripping on a hammer that plaintiff claimed had been left on the stairs by workers John Nitch, Jr. and Steve Harmady. Suit was filed almost two years later on August 20, 2003. The summons and complaint were served by certified mail, return receipt requested, on September 9, 2003, and receipt was acknowledged by John Hammock, who listed his capacity on the return receipt as "agent." However, it appears that no answer was filed. Service was thus ineffective. R. 4:4-4(c).
On March 5, 2004, the case was dismissed without prejudice for lack of prosecution, but was reinstated on May 14, 2004. The basis for reinstatement is unclear. In June 2004, plaintiff's counsel moved his office, and at that time, marked the file closed. The case was again dismissed for lack of prosecution on September 15, 2004.
At some point, plaintiff's counsel recognized that he had closed the file in error, and on June 18, 2007, almost six years after plaintiff's alleged accident and almost three years after the September 2004 dismissal, personal service on defendant was effected. Thereafter, counsel filed a motion to vacate dismissal and to reinstate plaintiff's complaint, returnable on August 17, 2007. The motion was denied on that date in an order that stated: "Motion Denied: No showing of service on Defendant; no order of substitution of service on ins. carrier."
Counsel then moved for reconsideration, noting that personal service had, in fact, been effected. That motion was likewise denied on October 15, 2007 in an order that stated: "Motion Denied: Contrary to Plaintiff's counsel's certification (¶ 17), this case has been dismissed for more than 3 years . . . . No good cause shown." Plaintiff has appealed from both orders.
On appeal, plaintiff argues:
POINT I: THE TRIAL JUDGE ABUSED HIS DISCRETION IN FAILING TO VACATE THE DISMISSAL FOR LACK OF PROSECUTION WITHOUT PREJUDICE AND REINSTATING PLAINTIFF'S . . . COMPLAINT TO THE ACTIVE TRIAL CALENDAR.
A. MOTION DOES NOT HAVE TO BE WITHIN ONE YEAR, JUST REASONABLE TIME.
B. THERE IS NO PREJUDICE TO DEFENDANT.
C. THE INDIVIDUAL PLAINTIFF IS NOT AT FAULT AND DESERVES HER DAY IN COURT.
In our recent decision in Ghandi v. Cespedes, 390 N.J. Super. 193 (App. Div. 2007), we reversed an unopposed order by the trial court denying reinstatement of a complaint, dismissed for lack of prosecution for a period of fifteen months as the result of neglect by plaintiff's counsel. Although, following our remand, the motion judge had explained his decision by determining that plaintiff had not demonstrated good cause for restoration, we held that a showing of good cause was not necessary in a case in which the delay was attributable solely to attorney neglect, not fault on the part of the client, and the defendant was not prejudiced in its ability to maintain a defense. Id. at 196-98. In reaching that result, we relied upon, among other decisions, cases decided under Rule 4:37-2(a) seeking dismissal for failure to issue timely service of process pursuant to Rule 4:4-1. Id. at 196-97 (citing Rivera v. Atlantic Coast Rehab. & Health Care Ctr., 321 N.J. Super. 340 (App. Div. 1999). In granting relief in Rivera, we stated:
We think the key lies in the way we deal with the analogous situation of a defendant moving for dismissal because of untimely service of process in contravention of R. 4:4-1. In that case, we have uniformly held that even a substantial delay - in some cases of a year or more - will not bar the continued prosecution of the action where the failure of timely service was either for good cause or attributable only to counsel's neglect and, in addition, the defendant was not prejudiced thereby in the ability to maintain a defense. [Id. at 346-47.]
In the present matter, the delay in seeking reinstatement was for a period of almost three years. While that period is indeed lengthy, we note that in McLaughlin v. Bassing, 51 N.J. 410 (1968), the Supreme Court permitted an action to continue when the summons was not issued for three years and eight months after the filing of the complaint*fn1 - a more lengthy period than that present in this case. The time elapsed, therefore, cannot be regarded, alone, as an impediment to restoration.
In McLaughlin, settlement negotiations and medical examinations of the plaintiff occurred in the interval before service of plaintiff's personal injury action. Here, such conduct did not occur. However, notice of claim was provided to the condominium's insurance adjuster on September 8, 2001, and notice of a timely suit was provided to Brookview Terrace by means of mailed service of the complaint on September 9, 2003, receipt of which was acknowledged.
Moreover, in connection with this motion, plaintiff has offered uncontroverted evidence that the police, called at the time of plaintiff's accident, issued a report suggesting potential liability on the part of Nitch and/or Harmady, and that both remain in the area. Although Brookview Terrace claims to have been prejudiced by the delay in prosecution of the claim, it offers no specifics as to the nature of that prejudice, only arguing without supporting evidence that recollections may have dimmed and asserting that the insurer had no duty to preserve evidence, absent suit. Thus, prejudice has not been demonstrated.
As a consequence of our review of the record in light of the precedent we have discussed, we are satisfied that the motion judge mistakenly used his discretion in denying reinstatement of this claim.