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Gloria Diaz and v. Nasr Ismail and Lee Sandwiches

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 22, 2011

GLORIA DIAZ AND PABLO FRANCO, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
NASR ISMAIL AND LEE SANDWICHES, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9532-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 20, 2011 - Decided

Before Judges Fuentes and Gilroy.

This is a personal injury negligence action. Plaintiffs Gloria Diaz and Pablo Franco*fn1 appeal from the January 5, 2010 order that denied their motion for reconsideration of an order entered on October 1, 2009. Because we conclude that plaintiff's notice of appeal was untimely filed, we dismiss the appeal.

On December 2, 2005, plaintiff slipped and fell on the public sidewalk at 1005 Bergen Street, Newark (the premises). At the time of the incident, defendant Nasr Ismail either owned or operated defendant Lee Sandwiches, a business located in the building occupying the premises.

On November 30, 2007, plaintiff filed a complaint against defendants. On December 12, 2007, plaintiff attempted personal service through a private process server upon Lee Sandwiches at the premises, and upon Ismail at the address of 909A Broad Street, Apartment 187, Newark. On December 18, 2007, the process server advised plaintiff that it was unable to serve either defendant because Lee Sandwiches had ceased operating, and Ismail was unknown at the address provided.

After obtaining a new address for Ismail, plaintiff attempted service upon him at 83 Vassar Avenue, Apartment 1, Newark, both by regular mail and certified mail, return receipt requested. The certified mail was returned marked "unclaimed"; the regular mail was not returned. On February 27, 2008, plaintiff again attempted service upon defendant at the Vassar Avenue address but was not successful.

On June 11, 2008, the court dismissed the action without prejudice as to both defendants for lack of prosecution pursuant to Rule 1:13-7(a). On June 22, 2009, plaintiff ascertained that Ismail then resided on Ingraham Place, Newark. On June 28, 2009, plaintiff's private process server successfully served Ismail at the Ingraham Place address.

On July 6, 2009, plaintiff filed a motion to reinstate the complaint as to Ismail only. The first page of the notice of motion indicates that plaintiff sought an order reinstating her complaint, which had been "dismissed on June 11, 2008, for [l]ack of [p]rosecution." However, the motion was not accompanied by an affidavit of service verifying that plaintiff had served a copy of the notice of motion upon Ismail, either personally or simultaneously by regular or certified mail, pursuant to Rules 1:5-1 to -3. On August 17, 2009, the court entered an order denying the motion for failure to provide proof that plaintiff had served a copy of the motion papers on Ismail advising him that the complaint had previously been dismissed, citing Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257 (App. Div. 2007). The court also denied the motion because plaintiff failed to provide a showing of good cause for her failure to act in response to the court's April 12, 2008 notice of its intention to administratively dismiss the complaint on June 11, 2008, for lack of prosecution.

On August 27, 2009, plaintiff filed a motion seeking reconsideration "of the [m]otion [r]einstating [p]laintiff's [c]omplaint against defendant, Nasr Ismail, dismissed on June 11, 2008 for [l]ack of [p]rosecution." This time, however, plaintiff attached an affidavit verifying service of the second motion upon Ismail. On October 1, 2009, the trial court entered an order denying the motion because it was not accompanied by a copy of the August 17, 2009 order for which reconsideration was sought, nor did the motion address all of the court's concerns in denying the original motion.

On November 10, 2009, plaintiff filed a motion for reconsideration of the October 1, 2009 order. On January 5, 2010, the trial court entered an order denying the motion reasoning that: 1) no legal basis existed for reconsideration of an order denying a prior motion for reconsideration; 2) plaintiff had failed to address all of the concerns raised by the court on its denial of the first two motions; and 3) plaintiff failed to explain what efforts were made to locate and serve Ismail between the time when the court issued its notice to dismiss the complaint pursuant to Rule 1:13-7(a) in 2008 and service of the summons and complaint upon Ismail in 2009. On February 16, 2010, plaintiff filed a notice of appeal from the January 5, 2010 order only.

On appeal, plaintiff argues that we should reverse the trial court's decision because the court abused its discretion and ignored plaintiff's showing of good cause in seeking to reinstate her complaint. Because we are constrained to dismiss the appeal on procedural grounds, we do not address the merits of plaintiff's argument.

Rule 2:4-1(a) provides in pertinent part that an appeal to this court must be filed within forty-five days of entry of the order or judgment appealed from. Although this court may extend a party's time to appeal by thirty days, such relief may only be granted "upon motion [and] . . . on a showing of good cause and the absence of prejudice." R. 2:4-4(a). We do not have the authority to extend the time for appeal after expiration of that thirty-day period. Cabrera v. Tronolone, 205 N.J. Super. 268, 271-72 (App. Div. 1985) certif. denied, 103 N.J. 493 (1986).

Nevertheless, Rule 2:4-3(e) provides for the tolling of the time for taking an appeal in civil actions by the filing and service of a motion to the trial court seeking certain enumerated relief, including "for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2." However, for a motion seeking reconsideration of a prior order to effectively toll the time to appeal pursuant to the aforementioned rule, the motion must be timely filed. See Cabrera, supra, 205 N.J. Super. at 271 (providing the time to appeal is not tolled by an untimely motion for a new trial).

Rule 4:49-2 governs motions for reconsideration. The rule provides in pertinent part that "a motion for . . . reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it." Rule 1:3-4(c) prohibits enlargement of the time for filing a motion for reconsideration from a final judgment or order. It is against these principles and time restraints that we consider the timeliness of plaintiff's appeal.

On July 6, 2009, plaintiff filed a motion seeking to reinstate her complaint that had been administratively dismissed pursuant to Rule 1:13-7(a). The court denied the motion by order of August 17, 2009. In lieu of filing a notice of appeal, plaintiff filed a motion for reconsideration on August 27, 2009. The court denied the motion on October 1, 2009. Again, rather than seeking an appeal from either the August 17 or October 1, 2009 orders, plaintiff filed a motion on November 10, 2009, seeking reconsideration of the October 1, 2009 order. Because the October 1, 2009 order was a final order for purpose of appeal, plaintiff's second motion for reconsideration was untimely filed, having been filed more than twenty days after entry of the October 1, 2009 order. R. 4:49-2. Because the second motion was untimely filed, it did not toll plaintiff's time to appeal the October 1, 2009 order. Cabrera, supra, 205 N.J. Super. at 271-72. Accordingly, plaintiff's notice of appeal filed on February 16, 2010, was also untimely filed. Ibid. at 271.

Plaintiff asserts that her notice of appeal from the January 5, 2010 order that denied the second motion for reconsideration was timely filed. Although we agree that the notice of appeal was filed within forty-five days of the January 5, 2010 order, plaintiff cannot circumvent the time limitations under Rule 2:4-1(a) by continuously filing motions for reconsideration when she failed to timely file the motion for reconsideration of the October 1, 2009 order. Accordingly, we dismiss the appeal.

Dismissed.


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