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Williams v. Nunn

September 28, 2009

ROBERT WILLIAMS, PLAINTIFF-APPELLANT,
v.
W. STANLEY NUNN, SOUTH WOODS STATE PRISON, AND DEPARTMENT OF CORRECTIONS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-833-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 8, 2009

Before Judges Messano and Alvarez.

Plaintiff Robert Williams appeals from the August 1, 2008 order that denied his motion for reconsideration of a prior order denying his motion to reinstate his complaint against defendants, W. Stanley Nunn, South Woods State Prison, and the Department of Corrections. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

We note initially that plaintiff's notice of appeal and case information statement list only the order denying reconsideration as the subject of this appeal. The original order denying his motion to reinstate the complaint is not listed or appended to those documents. The only transcript plaintiff has supplied is from the hearing that took place on August 1, the date his motion for reconsideration was orally argued.

The failure on plaintiff's part to include in the notice of appeal and case information statement the original order denying his motion to reinstate permits us to limit our review solely to the denial of his motion for reconsideration. Fusco v. Board of Educ. of the City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002). That technical failure might be overlooked, however, if "the substantive issues in the case and the basis for the motion judge's ruling on the [motion to reinstate] and [the] reconsideration motion[] [were] the same." Id. at 461.

The June 20 order denying plaintiff's motion to reinstate clearly reflects that Judge Michael Brooke Fisher placed his reasons on the record the same day. Inexplicably, plaintiff has not provided us with a transcript of that decision. During oral arguments on August 1, Judge Fisher noted:

[T]his is a [m]otion for [r]econsideration. I was somewhat surprised that . . .

[p]laintiff didn't request oral argument when the first [m]otion was filed.

I ruled on the papers pretty specifically.

However, Judge Fisher's subsequent, thorough recitation of his reasons for originally denying reinstatement, and, thereafter, for denying reconsideration, allows us to treat this particular appeal with indulgence so as to permit a full and complete analysis of the issues.

Plaintiff's complaint, filed pro se on August 2, 2001, alleged that in May 2000, while an inmate at South Woods State Prison, he fell down a stairwell that had been recently mopped by his fellow inmates. He suffered injury as a result, and his complaint sounded in general theories of negligence in defendants' maintenance of the premises. Plaintiff had earlier served a notice of claim upon defendants pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and, though he claims to have served the complaint, there is no proof in the record that defendants received it or that it was properly served.*fn1

In any event, in January 2002, apparently in response to a court-initiated notice of intent to dismiss the complaint for lack of prosecution, R. 1:13-7(a), plaintiff contacted the firm of Childress and Jackson to represent him. Alan L. Jackson, the attorney specifically representing plaintiff, passed away on February 13, 2002. The computerized case records of the court reflect that the complaint was ...


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