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Frosina Nasufi and Arben Nasufi v. Monica L. Murray and Pamela R. Murray

May 11, 2012

FROSINA NASUFI AND ARBEN NASUFI, PLAINTIFFS-APPELLANTS,
v.
MONICA L. MURRAY AND PAMELA R. MURRAY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4215-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2012

Before Judges Sabatino and Ashrafi.

Plaintiffs, Frosina*fn1 and Arben Nasufi, appeal orders of the trial court denying their request to restore their complaint pursuant to Rule 4:50-1(f). The basis of plaintiffs' request was that their former attorney had mishandled their case and then concealed the case's dismissal from them and from his superiors at his law firm. Because the trial court did not misapply its discretion under the Rule in declining to restore plaintiff's lawsuit a year and a half after it had been dismissed, we affirm.

This is the pertinent background. Plaintiff was involved in a car accident in August 2006. In October 2007, plaintiff and her husband filed a personal injury action against defendants, seeking damages subject to the verbal threshold. Plaintiffs were represented by an associate at a law firm ("the associate"), who was also responsible for about eighty to one hundred other cases.

After discovery was completed, the case was called for trial in June 2009. The defense was prepared to proceed, but plaintiffs could not go forward because their expert witness was unavailable. Consequently, the complaint was dismissed due to plaintiffs' inability to proceed without an expert.

The associate moved to reinstate the case, and the trial court denied that motion in September 2009. Evidently, the associate did nothing else to attempt to restore the case. No appeal was taken of the complaint's dismissal, nor of the court's September 2009 denial of the ensuing motion for reinstatement. Meanwhile, the associate did not advise his clients or his superiors of the true status of the matter.

In December 2010, the associate abruptly left the law firm. A senior partner thereafter discovered during an internal review that the associate had been mishandling many of the cases assigned to him, and he had not been truthful about the circumstances. Meanwhile, plaintiff called the firm in March 2011 to inquire about the status of the case. This led to the discovery that the case had, in fact, been dismissed in 2009 while the associate was still plaintiffs' counsel of record.

Successor counsel at the firm moved in March 2011 to restore plaintiffs' complaint pursuant to Rule 4:50-1(f). The firm also filed motions for relief in about twenty other cases that the associate had mishandled while representing other clients. The motions were supported by certifications describing the firm's discovery of the former associate's malfeasance, recounting that he had misled his superiors and his clients about the actual status of many of the cases he was handling, and that he had made misleading entries in the firm's case tracking data base.

Defendants in this case opposed the restoration of plaintiffs' lawsuit, noting that over a year had passed since the case was called for trial and dismissed. They contended that plaintiffs failed to demonstrate exceptional circumstances, and that the statute of limitations and laches barred the claims.

After considering the relative equities at stake, the trial court denied plaintiffs' motion to restore. In its order of denial dated April 1, 2011, the court noted that there had already been a motion to reinstate that had been denied eighteen months earlier in September 2009, and that the time to move to reconsider or appeal that prior order had long since passed. The court acknowledged plaintiffs' contention that their former attorney had acted in an unauthorized manner, but concluded that the extraordinary relief sought under Rule 4:50-1(f) was not justified.

Plaintiffs moved for reconsideration, submitting additional certifications further detailing the associate's conduct and the steps that the firm had taken to attempt to rectify the situation. Defendants again opposed the application for relief.

Upon hearing oral argument, the court denied reconsideration on May 13, 2011. At the hearing, the court acknowledged that several other of the former associate's cases had been restored, but that such relief was not warranted in the present case, in which the matter had been ...


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