September 6, 2011
ALLA ROZENSHTEIN, PLAINTIFF-APPELLANT,
AIG PERSONAL LINES CLAIMS, DEFENDANT, AND CYNTHIA HAINES, RUSSELL ROY HAINES, DEFENDANTS /THIRD-PARTY PLAINTIFFS-RESPONDENTS,
ESTATE OF LEONID ROZENSHTEIN, THIRD-PARTY DEFENDANT-RESPONDENT. LYUDMILA SVETLOV AND VLADIMIR SVETLOV, PLAINTIFFS,
ESTATE OF LEONID ROZENSHTEIN, ALLA ROZENSHTEIN, CYNTHIA HAINES, RUSSELL ROY HAINES, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1568-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2011
Before Judges Ashrafi and Nugent.
In this personal injury action, plaintiff, Alla Rozenshtein, appeals from the March 24, 2010 order denying her motion to amend the complaint to include the Estate of Leonid Rozenshtein as a defendant, and the May 28, 2010 summary judgment order dismissing with prejudice her complaint against defendants, Cynthia and Russell Haines. We affirm.
This action arose out of a July 21, 2007 intersectional collision that occurred in Pennsylvania and involved two automobiles: one operated by decedent Leonid Rozenshtein, owned by plaintiff, and occupied by plaintiff and Lyudmila Svetlov; the other operated by defendant, Cynthia Haines, and owned by defendant, Russell Haines. The accident occurred when Leonid Rozenshtein failed to stop at a stop sign. Plaintiff has no memory of the accident and Leonid Rozenshtein passed away following the accident.*fn1
On January 29, 2008, Lyudmila Svetlov and her husband, Vladimir, filed a complaint against the Estate of Leonid Rozenshtein, Alla Rozenshtein, and Cynthia and Russell Haines, asserting personal injury and per quod claims.*fn2 Nearly one and one-half years later, on June 17, 2009, plaintiff filed a complaint in which she asserted an uninsured or underinsured motorist claim against defendant, AIG Personal Lines Claims (AIG), and a personal injury negligence claim against defendants, Cynthia and Russell Haines. She did not assert a cause of action against her husband Leonid's Estate. On plaintiff's motion, the Svetlov and Rozenshtein actions were consolidated on July 23, 2009, two days after the statute of limitations had expired. Plaintiff voluntarily dismissed her complaint against AIG in a stipulation of dismissal filed on August 10, 2009.
On August 4, 2009, more than two years after the accident, the Haines defendants filed an answer and third-party complaint for contribution and indemnification against the Estate of Leonid Rozenshtein in the Rozenshtein action. The Estate filed an answer on January 27, 2010. Two days later, on January 29, 2010, plaintiff filed a motion to amend the complaint to add the estate of her husband as a direct defendant.*fn3 The trial court denied the motion on March 24, 2010, holding that plaintiff's action against the Estate was barred by the two-year statute of limitations for claims for personal injuries caused by the wrongful act or neglect of another. N.J.S.A. 2A:14-2. The court also determined that Rule 4:26-4, that permits fictitious pleading if a defendant's true name is unknown to the plaintiff, was inapplicable because plaintiff knew the identity of her husband's estate when the accident occurred. Finally, the court rejected plaintiff's argument that the proposed amendment related back to the original complaint under Rule 4:9-3.
The Haines defendants subsequently filed a motion for summary judgment, which the court granted on May 28, 2010. In its decision delivered from the bench, the court noted that oral argument had not been requested, and that plaintiff had provided opposition, but had not provided a counter-statement of material facts. Consequently, the court accepted as true the statement of material facts presented by the Haines defendants, the moving parties. The court ruled that there was "no evidence upon which the Court can conclude that the moving parties were negligent in the happening of this accident."
Plaintiff first contends the trial court improperly denied her motion to amend the complaint. A trial court's decision to grant "a motion to file an amended complaint always rests in the court's sound discretion." Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998). On appeal, we review whether that discretion was abused, according proper deference to the trial court's day-to-day responsibilities for case management. See Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994).
Plaintiff moved to amend the complaint after the Haines defendants impleaded third-party defendant, the Estate of Leonid Rozenshtein. Rule 4:8-1(a) authorizes a defendant to implead a third-party. Rule 4:8-1(b) authorizes a plaintiff to amend a complaint to include an impleaded third-party defendant:
The plaintiff, within 45 days after being served with the third-party complaint, or, if the defendant has sought leave, within 45 days after being served with the order granting such leave, may amend the complaint to assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of plaintiff's claim against the third-party plaintiff; thereafter plaintiff may so amend the complaint only by leave of court on notice to the parties to the action.
Only where the third-party defendant has been impleaded by the defendant before the statute of limitations has run, may plaintiff recover against the third party on a theory of "relation back." See Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 4:8-1 (2011). "[T]he well established rule is that if the third-party was impleaded prior to the running of the statute, plaintiff's amendment of the complaint after the running of the statute to assert a germane claim against the third-party will be deemed timely for limitation purposes." Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:9-3 (2011). On the other hand, "[a]n impleader after the running of the statute of limitations on the plaintiff's claim against the third-party will not . . . entitle the plaintiff to amend to assert that claim." Ibid. See also McGlone v. Corbi, 59 N.J. 86, 95-96 (1971) (holding that plaintiffs' claims against a third-party defendant impleaded by defendant after the statute of limitations had run was barred, notwithstanding that the action was consolidated with a separate action in which the third-party defendant had been impleaded within the statute of limitations).
Because the Haines defendants impleaded the third-party defendant, the Estate, after the two year statute of limitations had expired, see N.J.S.A. 2A:14-2, plaintiff's amended complaint would have been barred. Accordingly, the trial court did not abuse its discretion in denying plaintiff's motion to amend the complaint.
Plaintiff also claims the amendment should have been permitted under Rule 4:26-4, which provides: "In any action, irrespective of the amount in controversy, . . . if the defendant's true name is unknown to the plaintiff, process may be issued against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification." The rule does not apply when defendant knows the identity of the person that caused an injury. Caravaggio v. D'Agostini, 166 N.J. 237, 244 n.1 (2001). Here, when plaintiff filed her complaint, she obviously knew the identity of the drivers of both automobiles involved in the accident. Consequently, she could not use Rule 4:26-4 and a fictitious name to identify her husband. Plaintiff's claim that the trial court improperly denied her motion to amend the complaint under Rule 4:26-4 is unavailing.
Defendant argues next that the trial court erred in granting summary judgment to defendants. We review the trial judge's summary judgment order de novo, using the standard set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That standard requires that the court determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540.
The procedural requirements for a summary judgment motion are set forth in Rule 4:46. Rule 4:46-2(a) states that a motion for summary judgment must be accompanied by a statement that sets forth, "in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." The party opposing the motion must "file a responding statement either admitting or disputing each of the facts in the movant's statement." R. 4:46-2(b). The moving party's statement of material facts "will be deemed admitted" if the opposing party does not file a responding statement disputing by citation to the motion record the material facts in the movant's statement. Ibid. Here, the trial court deemed admitted the moving parties' statement of material facts because plaintiff's opposition did not comply with this requirement.
Plaintiff contends that the court should not have granted the summary judgment motion because disputed material facts existed and discovery was incomplete. Specifically, defendant cites the police report's reference to a witness who lived in Pennsylvania and who "related neither operator tried to avoid the other[,] . . . neither unit saw the other coming." The trial court rejected the statement as hearsay.
We conclude that there was no competent evidence on the motion record from which an inference of negligence could have been drawn against the Haines defendants. The parties' interrogatories do not establish negligence on the part of the Haines defendants.*fn4 According to the interrogatories, plaintiff has no memory of the accident. Yudmila Svetlov stated that the vehicles collided, but did not indicate how the collision happened. Defendant, Cynthia Haines, stated she was driving through the intersection when she was hit on the left front by the Rozenshtein vehicle that had neglected to stop at the stop sign. Haines also indicated the Rozenshtein car hit her car "at full speed, never slowing down for the intersection nor stop sign."
The statement of the witness identified in the police report was hearsay. Police reports may be admitted under the business records exception to the hearsay rule. N.J.R.E. 803(c)(6); Sas v. Strelecki, 110 N.J. Super. 14, 22 (App. Div. 1970). However, they are generally not admissible to prove the contents of statements provided to a police officer investigating an accident. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 803(c)(6) (2011); see also R. 1:6-6 (providing that "[if] a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify . . . .").
Even if we consider the hearsay statement of the Pennsylvania witness, that statement does not establish negligence on the part of defendant, Cynthia Haines. Without any additional evidence such as the speed of the vehicles, defendant Haines' vision of the intersecting street and stop sign, or the distances between the cars when Cynthia Haines first should have seen the Rozenshtein vehicle, any suggestion of negligence would be based on speculation rather than inference.
Plaintiff contends that the court improperly decided the summary judgment motion because discovery was incomplete. Specifically, she had not deposed the parties and the witness. The trial court did not address the issue in its oral opinion, and plaintiff has not appended to the record on appeal her opposition to the motion.
Rule 4:46-1 provides that "[a] party against whom a claim for . . . affirmative relief is asserted may move at any time for a summary judgment or order as to all or any part thereof." If a party opposes a summary judgment motion on the ground that discovery is incomplete, that party "must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete." Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). The record does not establish that plaintiff specified what further discovery she required.
Plaintiff filed her complaint on June 17, 2009, the Haines defendants filed an answer on August 4, 2009, and the Estate of Rozenshtein filed its answer on January 27, 2010. The Haines defendants filed their summary judgment motion on April 8, 2010, and the motion was decided on May 28, 2010. According to the moving papers of the Haines defendants, discovery was scheduled to end on May 31, 2010. According to the court, discovery was scheduled to end on July 30, 2010. There is no evidence in the record that plaintiff advised the court what discovery she needed to complete, whether she had attempted to take any depositions, whether she intended to depose any or all of the parties, whether the Pennsylvania witness was willing to testify without compulsory process, or what efforts she had made to depose either the parties or the witnesses. In short, there is no evidence in the appellate record that plaintiff specified to the trial court the discovery she required or whether she was able to take it. Under those circumstances, we cannot conclude the trial court erred by not adjourning the motion until discovery was complete.