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Mannarino v. Russo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 2, 2009

ANTONIO MANNARINO AND ANNE MANNARINO, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
JOSEPH RUSSO, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-5138-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 5, 2009

Before Judges Lisa and Sapp-Peterson.

Plaintiffs, Antonio Mannarino and Anne Mannarino (collectively plaintiffs),*fn1 appeal from the February 29, 2008 order denying their motion to reinstate the complaint against defendant, Joseph Russo, which was dismissed by the court on June 11, 1999. We affirm.

The complaint, filed in September 1998, arises out of a motor vehicle accident that occurred September 22, 1996, when a vehicle operated by defendant rear-ended plaintiff's vehicle. According to the Archival Management Information System maintained by the court, plaintiffs' complaint was dismissed on June 11, 1999. Although the reason for the dismissal is not reflected on the printout, the filing party seeking relief is identified as defendant. Thereafter, the printout indicates that plaintiffs filed for some type of relief from the court, which was denied on October 22, 1999. Likewise, the printout reveals that defendant also filed for some sort of relief before the court, which was also denied on November 6, 2000. The court's system reflects no other activity in connection with the case, and the parties do not dispute that the court's file has since been destroyed.

On December 13, 2007, plaintiffs filed a motion seeking to restore their complaint. Anne Mannarino, plaintiff's spouse, who was asserting a per quod claim, submitted a certification in which she stated that during the time she was represented by her former counsel, she recalled "quiet [sic] a bit of activity took place on this case up to and including examinations and depositions some[]time in 2001[.]" Thereafter, she "received little or no communication from [her prior counsel] except to tell [her] the matter was 'pending.'" She explained that she discussed the matter with friends, who advised her that it didn't take six years for matters to come to trial. She then conducted her own investigation, during which she learned that her complaint had been dismissed for failure to answer interrogatories. She contacted her former attorney, who directed her to contact the defendant's attorney.

In denying plaintiffs' motion, the court acknowledged that cases dismissed for failure to answer interrogatories "might slip between the cracks[,]" but found that plaintiffs' case went "far beyond a situation where there may have been an oversight or the file might have gotten misplaced." The court stated further that nothing by way of "explanation as to why after a reasonable period of time someone didn't call and say to the courts, by the way, we haven't gotten a trial date." The court found that not only had plaintiffs failed to demonstrate good cause for relief but that defendant had been prejudiced by the delay. The court noted that the accident occurred more than eleven years earlier and that the defense counsel had represented that defendant's file had been closed out and destroyed because of its age. The court concluded:

The criteria [are] not only good cause and two that the defendant has not been prejudiced by the delay. I cannot find that either of the two criteria [has] been met. I don't know what the good cause would be. And the defense indicates that it has been prejudiced. The accident happened in September of 1996, 11 1/2 years ago, the complaint filed in '98.

Even under the liberal standards certainly within one year there's a presumption of good cause. After one year there is no assumption. I cannot find good cause based upon these circumstances. We don't have any articulation of why the case wasn't restored, why it wasn't pursued, and I'm satisfied that the defense clearly has been prejudiced.

The court denied plaintiffs' motion for reconsideration. The present appeal followed.

On appeal plaintiffs contend the court abused its discretion when it failed to restore the complaint that was dismissed without plaintiffs' knowledge and through no fault of their own. We disagree and affirm substantially for the reasons set forth in Judge Ross Anzaldi's January 18, 2008 oral opinion. We add the following brief comments.

In Parker v. Marcus, 281 N.J. Super. 589, 593 (App. Div. 1995), certif. denied, 143 N.J. 324 (1996), upon which plaintiffs rely to support the reinstatement of their complaint, we observed that there was nothing unique about the dismissal of a complaint based upon attorney malpractice, as is apparently implied here. We referenced our decision in Jansson v. Fairleigh Dickinson Univ., where we stated that whether a litigant was seeking relief from judgment pursuant to the relaxation provisions of Rule 1:1-2 or the catchall provisions of Rule 4:50-1(f), "'justice is the polestar and our procedures must ever be moulded and applied with that in mind.'" 198 N.J. Super. 190, 195 (App. Div. 1985) (quoting New Jersey Highway Auth. v. Renner, 18 N.J. 485, 495 (1955)). We directed courts to consider several factors in determining whether to reinstate a dismissed complaint. Ibid. Those factors are: (1) the extent of the delay in making the application; (2) the underlying reason or cause; (3) the fault or blamelessness of the litigant; and (4) the prejudice that would accrue to the other party. Ibid.

Applying those factors here, plaintiffs did not move for reinstatement until more than seven years after the complaint had been dismissed. Anne Mannarino, whose per quod claim is only derivative, certifies that after 2001, she received little or no communication from her attorney. She does not detail the general dates or what specific efforts and the extent of the efforts she undertook over the next six years to ascertain the status of the case. Moreover, plaintiff submitted no certification in support of the application. Hence, the court was in no position to determine whether any fault for the delay in seeking reinstatement should be attributed to either plaintiff or whether plaintiffs were blameless.

Finally, the prejudice to defendant resulting from reinstatement was demonstrable. Defense counsel represented to the court that defendant's file was destroyed after seven years and the whereabouts of his client or whether he was alive was unknown. Additionally, there was no court file. While correspondence from the former attorney suggested that his file was complete, that file was not provided to plaintiffs in advance of the motion and no judicial relief was sought by plaintiffs to secure the file in advance of the return date of the motion in order to address the defendant's contention that he was prejudiced by the delay in seeking reinstatement.

In short, when the factual record here is considered pursuant to the Jansson factors, we find no abuse of discretion in the denial of plaintiffs' motion to vacate the dismissal of their complaint. Likewise, we find no error by the court in denying plaintiffs' additional motion for reconsideration. The motion did not comply with Rule 4:49-2.

Affirmed.


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