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Ventura v. Panchum

April 9, 2009

RUBY E. VENTURA, PLAINTIFF-APPELLANT,
v.
ISAAC PANCHUM, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4980-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 20, 2009

Before Judges Sapp-Peterson and Alvarez.

Plaintiff, Ruby E. Ventura, appeals from an order of the Law Division entered on September 7, 2007, denying her motion to restore her automobile negligence complaint to the active trial calendar. We affirm.

On October 3, 2001, defendant Isaac Panchum failed to stop at a blinking red light and struck the left side of plaintiff's vehicle as she proceeded through the intersection at a yellow blinking light. As a result, plaintiff filed an automobile negligence complaint seeking to recover damages for injuries and losses sustained during the accident.

The complaint was filed on October 1, 2002, and the answer on October 30, 2002. The parties amicably resolved the property damages claim, and when the stipulation of dismissal as to that count was filed on November 19, 2002, the court mistakenly dismissed the entire complaint for "lack of prosecution." Defendant's attorney, concerned that no scheduling notices had been sent to his office, learned of the error when he contacted the court. He immediately informed plaintiff's attorney of the dismissal by letter dated December 1, 2003.

Nearly three years later, on October 13, 2006, plaintiff's attorney wrote to the court, advising that the dismissal of the entire complaint was a "court clerical error" because only the property damage aspect of the case had been settled. Defense counsel objected to any administrative reinstatement because of the three-year passage of time. Accordingly, the case was not administratively reinstated.

On August 15, 2007, plaintiff's attorney filed a formal motion to reinstate the complaint. On September 7, 2007, the application was denied. The court noted on the order:

This application is denied. This matter was dismissed almost 5 years ago. It is incumbent on plaintiff to monitor its files so that it could have made a timely application to have this matter reinstated. Plaintiff knew in 2006 of this situation but waited nearly 10 months to make this motion.

This appeal followed.

The application to reinstate was made pursuant to Rule 1:13-7(a), which provides that where not consented to, a motion to reinstate "shall be granted only on a showing of exceptional circumstances." Clearly, exceptional circumstances must be established in order for plaintiff to succeed on the application for reinstatement.

In Ghandi v. Cespedes, 390 N.J. Super. 193, 195-96 (App. Div. 2007), pursuant to Rule 1:13-7(a), we reversed a trial court's denial of reinstatement of a complaint that had been administratively dismissed nearly seventeen months earlier. The administrative dismissal resulted from plaintiff's counsel's inattention to the matter and resulting failure to request the entry of judgment when no answer was timely filed. Ghandi, supra, 390 N.J. Super. at 195. In Ghandi, however, defense counsel did not oppose the motion for restoration and was prepared to file an answer and resolve the matter on the merits. Ibid. We held that motions to restore should be viewed with "great liberality" due to the "'general disinclination to invoke the ultimate sanction of dismissal where the statute of limitations has run.'" Id. at 197-98 (quoting Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 268-69 (App. Div. 1989)).

Notwithstanding, Ghandi is inapplicable to this case. This defendant, unlike the defendants in Ghandi, strenuously objects to reinstatement and has done so since the first request for reinstatement. This defendant asserts case-specific prejudice, noting that among other things, the defense's expert physician has retired since the 2001 automobile accident. Furthermore, in Ghandi there was a seventeen-month delay in seeking reinstatement, and the error was due to oversight in the attorney's office. In this case there is an unexplained three-year delay on the part of counsel to prosecute plaintiff's claim even after being notified of the dismissal. Plaintiff's attorney ...


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