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Cruz v. Potosi

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 23, 2010

TERESITA CRUZ, ADMINISTRATRIX OF THE ESTATE OF NOE E. CRUZ AND TERESITA, PLAINTIFFS,
v.
HECTOR F. POTOSI, TAREK O. AZIZ, NANCY AZIZ, ESMERALDO F. PAYUYO, JEFFREY PAYUYO, AND MAXON MAZDA HYUNDAI, GALLOPING HILL RESTAURANT, OFF SIDES BAR & RESTAURANT*FN1 AND NARDONES GOGO CLUB, DEFENDANTS.
TAREK AZIZ, PLAINTIFF,
v.
ESMERALDO E. PAYUYO, JEFFREY PAYUYO, AND HECTOR F. POTOSI, DEFENDANTS.
RICHARD BENITEZ, PLAINTIFF-APPELLANT,
v.
TAREK AZIZ, NANCY AZIZ, HECTOR POTOSI, ESMERALDO PAYUYO, MAXON MAZDA HYUNDAI, NJ DEPT. OF HUMAN SERVICES, AND NJ DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, DEFENDANTS, AND GALLOPING HILL RESTAURANT, OFF SIDES BAR & RESTAURANT AND NARDONES GOGO CLUB, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-5258-05, L-0802-06, and L-0071-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 6, 2010

Before Judges Cuff and Fuentes.

On December 21, 2004, Tarek Aziz was involved in a head-on collision with a car owned by Hector Potosi, which was driven by either Potosi or Noe Cruz. Plaintiff Richard Benitez was a passenger in the car driven by Aziz. Cruz was killed as a result of the accident and plaintiff suffered serious injuries. At the time of the accident, Potosi's blood alcohol content (BAC) was approximately .22; Cruz's BAC was .31. Both of these BAC readings are more than twice the legal limit of intoxication as defined by N.J.S.A. 39:4-50.

In addition to naming Potosi as a defendant in this case, plaintiff also brought a dram shop cause of action against a number of establishments that may have dispensed alcohol to Potosi or Cruz on the night of the accident while they were visibly intoxicated. In addition to this civil action, Potosi also faces criminal charges arising from this accident. Thus, when questioned by plaintiff in the course of conducting discovery in this civil suit, Potosi invoked his constitutional right against self-incrimination concerning the details of the accident, including his possible involvement as the driver. Faced with the inability to identify who was actually driving the car at the time of the accident, plaintiff sought to compel Potosi to testify, to compel the Hudson County Prosecutor's Office to grant Potosi immunity, or in the alternative, for the court to place the case on the inactive list until the statute of limitations on Potosi's potential criminal charges expires. By order dated December 21, 2007, Judge Bariso denied plaintiff's motion in all respects. Thereafter, by order dated June 10, 2009, Judge Curran granted the establishments' summary judgment motions and dismissed plaintiff's cause of action against them all.

Plaintiff now appeals arguing that Judge Bariso abused his discretion in failing to place this matter on the inactive list. We reject this argument and affirm substantially for the reasons expressed by Judge Bariso in his oral opinion delivered from the bench on December 21, 2007. We note that Potosi is still facing possible criminal prosecution for causing Cruz's death. Since there is no statute of limitations pertaining to these crimes, prosecution for aggravated manslaughter, N.J.S.A. 2C:11-4a(1) or (2), and reckless manslaughter, N.J.S.A. 2C:11-4b(1) or (2), "may be commenced at any time." N.J.S.A. 2C:1-6a(1). Plaintiff's application would thus potentially require the court to keep this case on the inactive list in perpetuity.

Affirmed.


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