On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3939-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Baxter.
Plaintiff Ibrahim Elballat appeals from an October 20, 2006 grant of summary judgment to defendant Slade Industries, Inc. (Slade) on the grounds that his complaint was barred by the statute of limitations.*fn1 On appeal, plaintiff maintains that he is entitled to reversal of that order because the judge misapplied the fictitious defendant procedures established by Rule 4:26-4. We disagree and affirm.
On April 27, 1999, plaintiff was injured while using the elevator in his apartment building located at 270 Harrison Avenue in Jersey City. On June 12, 2000, he filed a complaint against Parc Harrison Condo Assoc. (Parc), the owner of the building. He also named as a John Doe defendant the person or entity that maintained or repaired the elevator in question. Along with his complaint, plaintiff served a demand that Parc answer interrogatories. Although Parc provided answers to some of the questions, Parc failed to answer the question that asked Parc to state the name of the company that provided elevator maintenance and repair services at the time in question. Plaintiff did not file a motion to compel discovery or take any other action to compel Parc to provide the identity of such company.
In March 2002, Parc's liability insurance carrier, Legion Insurance Company (Legion), commenced bankruptcy proceedings in Pennsylvania, which caused a Pennsylvania judge to issue a stay of all Pennsylvania proceedings against Legion or its insureds. The stay was effective on September 28, 2002 and ended on May 31, 2003. Although counsel for Parc requested the Law Division on three occasions between October 2002 and April 2003 to "enter an order extending comity to the Commonwealth Court's Order and stay the trial of this matter," a records search in the Hudson County Civil Division Case Management Office established that no stay was ever issued.
Despite the absence of any stay affecting the instant matter, Parc notified plaintiff that Legion was refusing to take any further action on the file during the pendency of the Pennsylvania bankruptcy proceedings. Consequently, Parc agreed that in return for plaintiff taking a voluntary dismissal without prejudice of its complaint against Parc, Parc would not assert a statute of limitations defense once plaintiff reinstituted his complaint. Hence, on or about March 2, 2004, plaintiff filed a stipulation of dismissal without prejudice.
More than two years later, on July 26, 2004, plaintiff filed the present complaint. Plaintiff propounded the same interrogatories that he had propounded when he filed the first complaint in June 2002. In response, Parc provided the same partial answers to discovery that it had provided in March 2002. This time, however, on May 19, 2005, plaintiff filed a motion to strike Parc's answer based upon Parc's failure to answer interrogatories. On May 31, 2005, prior to the return date of that motion, Parc identified defendant Slade as the company with whom Parc had an elevator maintenance contract at the time of plaintiff's fall in 1999.
Although Parc provided the contract, it did not provide details of any repairs or scheduled maintenance. In addition to providing its contract with Slade, Parc also provided copies of repair bills from an unrelated elevator repair company, Arctec Elevator Service. Plaintiff attempted to obtain elevator inspection records from State and municipal regulatory authorities, but the records provided were not helpful. On July 18, 2005, plaintiff served a notice to produce on Slade. Six months of inactivity ensued until on January 30, 2006, counsel for Parc forwarded the relevant repair records to plaintiff's counsel. Those records revealed that Slade was the company that had performed maintenance and repair of the elevator for the months of January through May 1999. Plaintiff maintains that in February 2006, he moved to amend his complaint to add Slade as a defendant in place of the John Doe designation in his complaint. The record, however, does not contain a copy of that motion. We assume the motion was granted because on March 22, 2006, plaintiff filed an amended complaint naming Slade as a defendant, nearly seven years after the April 27, 1999 accident.
In October 2006, Slade moved for summary judgment, alleging that plaintiff's complaint against it was barred by the statute of limitations. Slade argued in support of its motion that: 1) although plaintiff's original and second complaints both named a fictitious defendant, plaintiff cannot be permitted to use a fictitious defendant to indefinitely toll the running of the statute of limitations; and 2) plaintiff failed to exercise due diligence in seeking to discover the identity of Slade, a potentially culpable party. Plaintiff opposed defendant's motion by arguing that "there is no prejudice to the defendant by the actual elaps[ing] of time." The court rejected plaintiff's arguments and granted defendant's motion for summary judgment.
On appeal, plaintiff maintains that the motion judge applied an improper legal standard when he granted ...