On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2997-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011
Before Judges Kestin and Newman.
Plaintiff, Awilda Oyala, appeals from orders denying her latest motion to amend the complaint and her motion for reconsideration. Because of other orders that had been entered in the matter, the result of the challenged orders was to leave plaintiff without a defendant against which to proceed. We affirm.
The initial complaint, in four counts, was filed on June 12, 2008. It alleged personal injury to plaintiff when, "on or about December 31, 2006, . . . [as] a pedestrian", she fell on a public sidewalk at 755 Montgomery Street in Jersey City. Plaintiff alleged, further, that the sidewalk had been negligently maintained or lacked a proper warning of a hazardous condition.
The first count of the complaint named as a defendant Elaine's Restaurant,*fn1 apparently a commercial establishment at that address. The second count named the City of Jersey City (the City) as a defendant. The third count named fictitious defendants, "ABC Companies 1-10 . . . the owner, contractor, lessee or otherwise [which] had control over the sidewalk in question." The fourth count named another fictitious defendant, "XYZ Maintenance Co. [which] through its agents, servants, and/or employees was the owner, operator, lessee or otherwise [and] had control over the sidewalk in question."
After the City's motion to dismiss was denied,*fn2 it filed an answer and a third-party complaint naming Power Concrete Co, Inc. (Power Concrete) and Assuncao Bros. Inc. (Assuncao) as third-party defendants. Plaintiff then, on March 20, 2009, filed an amended complaint naming those entities as direct defendants. The latter entities eventually joined issue as direct defendants. The City also filed an answer to the amended complaint.
There had already been some discovery in the matter when, on September 17, 2009, plaintiff's deposition revealed that the incident that resulted in her injury had occurred on the sidewalk at 755 Bergen Avenue, not at the address initially alleged in the complaint and throughout the discovery process that had occurred to date. Plaintiff's attorney learned from the City that the owner of 755 Bergen Avenue was 755-57 Bergen Avenue Corporation, and that the tenant of the premises was Montgomery Check Cashing (Montgomery).
On October 15, 2009, plaintiff filed a motion for leave to amend the complaint to add the newly discovered owner and tenant. The motion was granted and a further amended complaint was filed on November 18, 2009, and served on all parties.
Also on November 18, 2009, the City filed a motion for summary judgment in lieu of answer seeking a dismissal of the amended complaint as to it. Nevertheless, on December 8, 2009, the City filed an answer to the newly amended complaint. Plaintiff opposed the City's motion for summary judgment and the motion was denied in an order entered on December 18, 2009. The City moved for reconsideration and that motion was granted; an order entered on February 5, 2010 dismissed the complaint against the City with prejudice. By that time the other original defendants and the newly identified defendants had filed answers to the most recently amended complaint.
On February 8, 2010, an attorney representing the City informed plaintiff's attorney that the City had a contract with Manhattan Signs and Banners of NJ, Inc. (Manhattan Signs). Plaintiff represents on appeal with no documentary support that that contract was for work to be performed in front of 755-57 Bergen Avenue. After receiving the communication from counsel for the City, plaintiff moved for leave to file another amended complaint to add Manhattan Signs as a defendant. The motion was returnable on April 1, 2010. An order denying the motion was entered on April 16, 2010. The reason for the denial stated in the order was that the "moving papers fail to set forth a factual basis to implead Manhattan Signs . . . . Fax cover sheet dated 2/8/10 provides no info as to a party's involvement."
In the interim, defendant Montgomery had moved for dismissal of the complaint on Statute of Limitations grounds. That motion was granted on April 1, 2010. Defendant 755-757 Bergen Avenue Corporation had also moved for dismissal on the same grounds; and that motion was granted in an order entered on May 14, 2010. Apparently, plaintiff has not appealed from either of the latter orders. Defendants Power Concrete and Assuncao moved for summary judgment on March 25, 2010 and April 6, 2010, respectively. Those motions were granted on May 14, 2010, on the basis that those defendants had no relationship to the actual site of plaintiff's injury.
On April 29, 2010, plaintiff moved for reconsideration of the order denying the last motion for leave to amend the complaint. The April 29 motion was returnable on May 14, 2010. The order denying that motion was entered on May 28, 2010, stating "There is no pending ...