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Khalil v. Costa

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 11, 2010

TAMER L. KHALIL, PLAINTIFF-APPELLANT,
v.
DANNY V. COSTA AND ARMANDO COSTA, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2525-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2010

Before Judges Carchman and Parrillo.

Plaintiff Tamer L. Khalil appeals from an order of the Law Division dismissing his complaint as being beyond the two-year statute of limitations. N.J.S.A. 2A:14-2. We affirm.

The facts are not in dispute. Plaintiff was involved in a motor vehicle accident on May 13, 2006, with a vehicle driven by defendant Danny V. Costa and owned by Armando Costa. Plaintiff was represented by Edward Farynyk, Esq. For reasons that are not apparent from the record, correspondence regarding Farynyk's representation of plaintiff all contained a notation that the date of the accident was June 13, 2006; however, the police report promulgated as a result of the accident correctly noted the accurate date of May 13, 2006.

Sometime in 2007, Farynyk passed away, and in March 2008, plaintiff retained present counsel. Farynyk's file was transmitted to counsel who on May 16, 2008, filed a complaint for both personal injury and property damages. After vacating a default entered against them, defendants moved to dismiss the complaint as being filed beyond the two-year limitations period. The motion judge agreed, and this appeal followed.

N.J.S.A. 2A:14-2 provides:

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within two years next after the cause of any such action shall have accrued[.]

The statute of limitations is designed to promote repose and provide "security and stability to human affairs." Leake v. Bullock, 104 N.J. Super. 309, 313 (App. Div. 1969). In Leake, the complaint was mailed four days before the two-year anniversary of the accident and not filed until one day after the statute ran. We affirmed the dismissal of the complaint.

We distinguish this case from Waite v. Doe, 204 N.J. Super. 632 (App. Div. 1985), certif. denied, 102 N.J. 398 (1986), and White v. Karlsson, 354 N.J. Super. 284 (App. Div.), certif. denied, 175 N.J. 170 (2002). In Waite, the complaint was mailed fifteen days before the statute ran, and we concluded that considering the timing, the complaint was presumptively received by the clerk within the two-year period. There was a "reasonable margin of safety" in the posting period to warrant reliance by counsel. Id. at 638.

In White, supra, defendant, although raising the defense in her answer, failed to act on the defense during the course of the litigation, and her behavior "led plaintiffs to the reasonable conclusion that defendant had no objection to continuation of the case[.]" 354 N.J. Super. at 289. We held that defendant therefore was not entitled to rely on the statute of limitations defense.

We find no correlative conduct here. Defendants raised the defense in their answer and then moved reasonably promptly to assert the defense by way of the motion to dismiss. We recognize that the error prompting the late filing was caused by prior counsel and not plaintiff or his present counsel; nevertheless, defendants were entitled to the benefit of the statute, and we will not intervene. The judge correctly dismissed the complaint.

Affirmed.

20100611

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