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Amanda Aguilar v. Vivian Vargas

February 24, 2011

AMANDA AGUILAR, PLAINTIFF-APPELLANT,
v.
VIVIAN VARGAS, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5141-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 25, 2011 - Decided Before Judges Wefing and Payne.

Plaintiff, Amanda Aguilar, appeals from the denial of her motion to restore a premises liability action, filed on her behalf on October 17, 2007, arising out of an injury allegedly sustained on October 17, 2005 as the result of a slip and fall on snow and ice present at premises owned by Vivian Vargas. We affirm.

I.The procedural history of this matter is lengthy. Plaintiff's claim was initially filed by Thomas Lynch of the Union City firm of Campbell, Lynch & Ortiz. Five and one-half months later, on April 1, 2008, personal service on Vargas was attempted at 149 Sterling Avenue, Jersey City, but it was unsuccessful. A post office inquiry disclosed no change of address. Because service was not made on Vargas, on April 30, 2008, the case was dismissed for lack of prosecution pursuant to Rule 1:13-7.

Thereafter, Lynch attempted service pursuant to Rule 4:4-4(c) by regular and certified mail on Vargas and on Atlantic Risk Consultants, the claims adjustment company representing Vargas's carrier, Scottsdale Insurance Company. Vargas signed a certified mail receipt on June 3, 2008, but did not answer the complaint. Mail addressed to Atlantic Risk at 19 Hampton House Road #333, Newton, New Jersey 07860, at 100 Sparta Avenue, Newton, New Jersey 07860, and at P.O. Box 517, Newton, New Jersey 07860 was returned as not deliverable. As Rule 4:4-4(c) provides, service was thus ineffective for obtaining in personam jurisdiction.

Lynch then moved to reinstate the complaint and for substituted service. His motion was granted on June 20, 2008, and substituted service on Vargas through service on Atlantic Risk by regular and certified mail was authorized. On July 2, 2008, Lynch attempted service by certified mail on Atlantic Risk at P.O. Box 571, Newton, New Jersey 07860, but the mailing was not claimed.

A few days earlier, on June 30, 2008, George Prutting advised Lynch that Prutting had been retained by Scottsdale to represent Vargas, and he requested a copy of the complaint and proof of service through Atlantic Risk as soon as it was received. On July 8, 2008, Lynch responded by sending a copy of the complaint to Prutting and the order for substituted service, but no proof of such service. On July 10, 2008, Prutting again requested proof of service.

On October 25, 2008, the case was again dismissed for lack of prosecution.

Sometime thereafter, alleged negligence in the handling of files by Lynch became known to his partners and, on May 29, 2009, the partnership was dissolved. The firm of Campbell Ortiz was constituted, with offices at the same Union City location previously occupied by the firm of Campbell, Lynch & Ortiz. Brian Campbell took over plaintiff's file.

On July 7, 2009, Campbell informed Prutting's office that service on Scottsdale had occurred on February 19, 2009. Campbell stated that if Prutting did not wish to answer on behalf of Vargas, Campbell would have to move to restore the complaint and seek a default.

On July 21, 2009, Prutting responded, but to Lynch, stating that he could not file an answer until the matter was restored, and restoration would require a demonstration of exceptional circumstances. Although Campbell claims that a motion to restore the complaint was prepared in early August 2009, no evidence that such a motion was timely prepared or filed exists.

The motion to reinstate was not filed until January 6, 2010 and, following objection on behalf of Vargas, it was denied in an order of March 5, 2010 as the result of the absence of ...


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