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Eliopoulos v. Condos

September 16, 2008

LISA M. ELIOPOULOS, PLAINTIFF-APPELLANT,
v.
BROOKVIEW TERRACE CONDOS, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-6093-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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