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Mariola Banko v. Jan Antosz

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 9, 2010

MARIOLA BANKO, PLAINTIFF-APPELLANT,
v.
JAN ANTOSZ, DEFENDANT-RESPONDENT.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 1, 2010

Before Judges Fisher and Simonelli.

In this appeal, plaintiff argues that the trial judge erred in denying her motion to restore this case to the active trial calendar. Because plaintiff did not seek reinstatement for more than six years after the action's dismissal, we affirm.

Plaintiff commenced this personal injury action on February 19, 2002. When she failed to appear for an independent medical examination (IME), defendant moved for dismissal. On July 25, 2003, an order was entered dismissing the complaint without prejudice. Plaintiff appeared for an IME a few months later, and on March 1, 2004, defense counsel affixed his signature to a consent order and returned it to plaintiff's counsel. Plaintiff's counsel allegedly forwarded the proposed consent order to the trial court for execution a few days later. For unknown reasons, the proposed consent order was never executed or entered.

Plaintiff did not move for reinstatement until September 14, 2009. The motion was denied by order entered on October 16, 2009. The judge's ruling was handwritten at the bottom of the order: "Application is denied. Good cause not shown why after 6 years this matter is now being addressed & reinstatement sought."

In appealing the October 16, 2009 order, plaintiff argues that the motion judge failed to adhere to the principles of liberality that govern such motions. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

Although motions for reinstatement based on Rule 1:13-7(a) are to be liberally indulged, Ghandi v. Cespedes, 390 N.J. Super. 193, 198 (App. Div. 2007), it does not follow that all such motions must be granted, Cooper v. Consolidated Rail Corp., 391 N.J. Super. 17, 25 (App. Div. 2007). The movant must demonstrate "good cause" for the granting of relief, and reinstatement ultimately turns on the judge's "exercise of discretion in light of the facts and circumstances of the particular case," Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002).

Here, the trial judge was presented with the extraordinary fact that plaintiff failed to seek reinstatement for more than six years after entry of the dismissal order. As an excuse for the delay, plaintiff's counsel referred only to the fact that the consent order allegedly submitted to the court in March 2004 was not executed, and that he was not informed of that fact. That circumstance, however, does not remotely excuse plaintiff's unexplained failure to take any action from March 2004 until the motion for reinstatement was filed in September 2009. We find no abuse of discretion in the judge's denial of the motion in light of plaintiff's unexplained hibernation for that extended period of time.

Affirmed.

20101209

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