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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...