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Peter Banko v. Cahn Estates

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 14, 2011

PETER BANKO, PLAINTIFF-APPELLANT,
v.
CAHN ESTATES, CITY OF PASSAIC, COUNTY OF PASSAIC, AND MICHAEL MESSINA, DEFENDANTS-RESPONDENTS.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 2, 2011

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3974-08.

Plaintiff filed this action on September 22, 2008, alleging personal injuries resulting from his fall at 39 Parker Avenue, Passaic. His complaint alleged the owner of the property was defendant Cahn Estates or some other unknown fictitious individual or entity.

In May 2009, counsel for Cahn Estates advised plaintiff's counsel that he did not believe his client owned the property. Plaintiff's counsel telephoned the tax assessor and was informed that Cahn Estates did indeed own the property; plaintiff's counsel thereafter so advised counsel for Cahn Estates. Notwithstanding, Cahn Estates later served its answers to interrogatories, which again denied ownership. Plaintiff's counsel immediately questioned the tax assessor's office about the ownership of the property. This time the tax assessor's office advised that if not Cahn Estates, the only possible owner was Michael Messina, who owned an adjacent lot. Without delay, plaintiff filed a motion to join Messina as a defendant; the motion was granted on June 26, 2009, and discovery extended to November 28, 2009.

Service on Messina could not be effected at the given address, so plaintiff retained an investigator to locate and serve Messina with the summons and complaint; service took place on August 10, 2009. Messina did not file his answer until October 27, 2009; he did not answer plaintiff's interrogatories until January 29, 2010. Messina's answers to interrogatories denied ownership of the property in question.

As a result of Messina's denial of ownership, plaintiff's counsel immediately went to the tax assessor's office. Two employees of that office insisted the property was owned either by Cahn Estates or Messina. However, a third employee knew the owner of Cahn Estates and advised that the property had been subdivided. This employee explained that, as a result of the subdivision, 39 Parker Avenue had become 45-47 Parker Avenue, and upon further examination of the tax assessor's records, it was determined that the owner of the property was Krysztof Baczyk.

Plaintiff forthwith moved for an order adjourning the scheduled arbitration date, extending the discovery period, and granting leave to file an amended complaint naming Baczyk as a defendant. The trial judge denied that motion on March 22, 2010, and denied plaintiff's timely motion for reconsideration on May 17, 2010. Plaintiff appealed.

We agree with plaintiff that these orders under review must be reversed. The exceptional circumstances plaintiff described in its moving papers, which we briefly outlined above, revealed plaintiff's diligence in seeking the true owner's identity and warranted the granting of the relief sought. Rule 4:9-1 requires liberality in the granting of leave to file amended pleadings. See Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456 (1998). And all the circumstances relevant for determining the presence of the exceptional circumstances required by Rule 4:24-1(c) were met here and warranted an extension of discovery. See Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.), certif. denied, 185 N.J. 296 (2005). The judge's denial of the relief sought by plaintiff constituted an abuse of discretion.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

20110314

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