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Ives v. Rivera

May 21, 2010

CHARLES IVES, PLAINTIFF-APPELLANT,
v.
HECTOR CONCERTO RIVERA AND THOMAS A. CANELO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2884-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 28, 2010

Before Judges Cuff and Payne.

Plaintiff appeals from an order denying his application to restore a dismissed complaint and from the order denying his motion for reconsideration. We affirm.

Plaintiff Charles Ives was involved in an automobile accident on June 10, 2005. Defendant Hector Concerto Rivera was the operator of the car that allegedly struck the car driven by plaintiff. In his complaint filed on June 20, 2007, plaintiff alleged that Rivera was acting within the scope of his employment as an agent of defendant Thomas Canelo. On October 15, 2007, plaintiff requested entry of default against both defendants; and the court entered an order of default on October 15, 2007.

On April 19, 2008, the complaint was dismissed without prejudice for lack of prosecution pursuant to Rule 1:13-7(a) and -7(b)(4) (plaintiff had not moved to enter a default judgment within six months of entry of default). On April 17, 2009, plaintiff moved to reinstate the complaint. In his motion, plaintiff provided no reason for the delay and no proof of service of the motion on the defaulting parties. Judge Bariso denied the motion because plaintiff provided no explanation for the delay, and plaintiff was required to show exceptional circumstances. The judge also noted that plaintiff had not served the defaulting parties.

Plaintiff filed a motion for reconsideration on June 4, 2009. Counsel argued that the exceptional circumstances standard did not apply to his case, there was a presumption of good cause because he filed his motion within one year of dismissal, and no rule expressly requires service on the defaulting parties. Judge Bariso recognized that he should not have applied the exceptional circumstances standard but adhered to his prior ruling that the defaulting parties should have been served with the motion to restore the complaint. The judge said:

In looking at the application for reconsideration, the Court agrees with plaintiff's counsel regarding the standard to be applied; i.e., good cause versus exceptional circumstances and reconsiders that as a basis for the denial and in the --and finds that plaintiff's counsel is correct that the appropriate standard would be good cause.

Plaintiff then takes the position that since it's within one year of the dismissal, I should have simply allowed it, because within one year it's presumed to be good cause. That's a literally -- literal reading of the GREAT GORGE*fn1 case, but even given plaintiff the benefit of the doubt, that it was done within one year, the Court is concerned that it -- of the return date of the motion was more than one year.

But more important, regarding the issue of service, while plaintiff may be correct in regards to the exact language of Rule 1 5 1, that has to also be read in conjunction with what notice is required. And Rule 4:43-1 requires that a party seeking default, six months after the actual default, must serve a notice of motion to enter default on a defendant.

Plaintiff, however, states, there's no legal requirement to say -- to serve a motion to reinstate default, and the Court finds that to be somewhat contradictory. If the rules require that in order to enter default it must be done within six months or by motion, it would seem to me that the same standard should apply to the re-entry of default for a dismissed action.

And because this action was dismissed in April, it, certainly, seems clear to me that plaintiff should serve a motion to reinstate the default in the same manner that you would serve a motion to enter default, that the defendants are entitled to notice.

Additionally, since they have not been notified of the motion, there is no way for the defendants to express their position and, therefore, no way this Court can make a determination as to whether there's any prejudice to the defendants, since plaintiff has not ...


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