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Sawicka v. Recycled Paper Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 24, 2010

RENATA SAWICKA, PLAINTIFF-APPELLANT,
v.
RECYCLED PAPER BOARD, INC. T/A ALL AMERICAN RECYCLING CORPORATION, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. L-2746-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 16, 2010

Before Judges Wefing and LeWinn.

Plaintiff appeals from a trial court order denying her motion for reconsideration of an earlier grant of summary judgment to defendant All American Recycling Corporation ("All American"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff filed suit for damages for injuries she said she received on the evening of February 12, 2006, when she fell on ice and snow in front of premises known as 15 Ackerman Avenue, Clifton, New Jersey. She named as defendants Recycled Paper Board, Inc., t/a All American Recycling Corporation, together with a number of John Doe defendants. An answer was filed on behalf of All American, and plaintiff's then-attorney was advised that Recycled Paper Board, Inc. had filed a petition with the United States Bankruptcy Court.

After a brief period of discovery, All American moved for summary judgment on the basis that it had no ownership interest in 15 Ackerman Avenue and did not manage, control or supervise the property. Its motion was supported by the certification of its chief financial officer, Charles C. Jacobson. Jacobson certified that he had served as the chief financial officer of Recycled Paper Board Corporation, as well as of All American, and that the bankruptcy proceedings of Recycled Paper had been concluded, that all of its assets had been distributed and that it existed in name only. Jacobson also certified that Recycled Paper and All American were entirely distinct corporate entities and that All American never held any ownership interest in 15 Ackerman Avenue and never had any management, control or supervision of the premises. Plaintiff did not dispute these factual contentions, and the trial court granted summary judgment to All American in January 2008.

At some point after this grant of summary judgment, plaintiff retained her current counsel, who moved for reconsideration in December 2008, nearly one year after All American had been granted summary judgment. The motion for reconsideration was supported by papers from Recycled Paper's bankruptcy proceedings which indicated that All American was a creditor of Recycled Paper's. The trial court, noting that the motion was untimely under the twenty-day non-extendable window for motions for reconsideration, denied plaintiff's motion. R. 4:49-2; R. 1:3-4(c). This appeal followed.

Plaintiff raises two arguments on appeal: that she was entitled to pursue discovery and that the trial court improperly treated her motion as time-barred under Rule 4:49-2 when she had filed it pursuant to Rule 4:50. We do not find it necessary to address the conundrum whether a mention in a supporting brief to Rule 4:50 is sufficient to bring plaintiff's motion within the broader time frames of that rule even in the face of counsel's certification that the motion was being filed under Rule 4:49-2.

We are satisfied that plaintiff failed to demonstrate, substantively, that she was entitled to relief.

Nothing plaintiff submitted in connection with her later motion raised any question with respect to the fundamental issue of whether All American had an ownership interest in 15 Ackerman Place or played any role in connection with the management, control or supervision of the property. Absent that, it was immaterial whether the trial court denied plaintiff's motion on the grounds of timeliness for its substance was, under either rule, insufficient.

The order under review is affirmed.

20100624

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