January 7, 2009
WILLIE SMITH, PLAINTIFF-APPELLANT,
SOCIETY HILL OF PISCATAWAY, SOCIETY HILL AT PISCATAWAY CONDOMINIUM ASSOCIATION, AND LANDSCAPE MAINTENANCE SERVICES, INC., DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1568-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2008
Before Judges Skillman and Graves.
Plaintiff Willie Smith appeals from an order entered on January 2, 2008, denying his motion to reinstate his complaint and from an order of February 1, 2008, denying his motion for reconsideration. Based on our review of the record, the briefs, and the applicable law, we affirm.
In a complaint filed on February 28, 2005, plaintiff alleged he was injured on March 6, 2003, as the result of a dangerous condition on property that was owned or controlled by defendants. Defendants were served in March 2005, but on September 16, 2005, plaintiff's complaint was dismissed pursuant to Rule 1:13-7(a) for failure to prosecute.
More than two years later on November 30, 2007, plaintiff filed a motion to reinstate the complaint and to enter default against defendants. During oral argument on December 21, 2007, plaintiff's counsel admitted the case had been "overlooked." Moreover, defense counsel argued there would be "significant prejudice" to defendants if the complaint was reinstated because defendants had "absolutely no idea what happened to this gentleman, how it happened, where it happened. There's nothing and its almost five years... since anything occurred."
The court's reasons for denying plaintiff's motion and for granting a cross-motion to dismiss the complaint with prejudice, included the following:
The Rule requires good cause shown. There is a presumption [of good cause] in the Stanley case [Stanley v. Great Gorge Country Club, 353 N.J. Super. 475 (Law Div. 2002)]... if the request to reinstate is made within one year. This is more than two years now and nothing has happened.
As I've indicated I searched... plaintiff's moving papers for good cause in order to allow me to reinstate this Complaint. I have read the opposition papers that have been submitted.... The standard is good cause shown. An element of good cause shown is no prejudice to the defendant, but it is an element of good cause.
As I've indicated not only has plaintiff not shown or even attempted to show good cause for the delay there is no cause in his papers showing for the delay.
In support of his motion for reconsideration, plaintiff claimed he "demonstrated good cause by showing service of the original complaint within a timely manner," and he argued the complaint should be reinstated in light of our decision in Weber v. Mayan Palace Hotel, 397 N.J. Super. 257 (App. Div. 2007). Plaintiff's counsel also advised the court that "somehow the file got misplaced. It was put in with the archives." In denying plaintiff's motion for reconsideration, the court distinguished Weber, and it found plaintiff had failed to show the "good cause" required for reinstatement of a complaint under Rule 1:13-7(a).
On appeal, plaintiff contends the trial court abused its discretion in denying plaintiff's motion to reinstate his complaint. We are convinced, however, the court's findings are adequately supported by the record. Moreover, we agree Weber is distinguishable. In that case, unlike here, plaintiff was injured while vacationing in Acapulco, Mexico, and we recognized there are special difficulties when it is necessary "to identify and serve defendants located in foreign countries." Weber v. Mayan Palace Hotel, supra, 397 N.J. Super. at 263. Accordingly, the order denying the requested reinstatement is affirmed essentially for the reasons stated by Judge Hurley on December 21, 2007, and February 1, 2008.
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