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Michael J. Kelsey v. Ira A. Cohen


May 15, 2012


On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-182-11.

Per curiam.


Submitted April 18, 2012

Before Judges Axelrad and Ostrer.

Plaintiff Michael J. Kelsey appeals from the trial court's May 4, 2011 order dismissing with prejudice his complaint filed August 23, 2010. We affirm.

In his pro se complaint, defendant alleged claims of breach of contract, negligence, and bad faith by defendant, who served as plaintiff's attorney in bankruptcy-related matters.

Plaintiff asserted that he discharged defendant on July 21, 2003 for the reasons that underlie plaintiff's claims.

Plaintiff filed a similar complaint in May 2009 in Special Civil Part, Morris County. That complaint was later transferred to Sussex County, where trial was scheduled for February 8, 2010. However, in a motion filed February 3, 2010, plaintiff asserted he suffered from various mental health conditions that prevented him from prosecuting his 2009 complaint. He sought entry of a proposed order dismissing his 2009 complaint "without prejudice and tolling the statute of limitations until plaintiff's mental incompetency is removed or until legal representative is appointed." Also pending before the court was defendant's motion to dismiss plaintiff's complaint for failure to provide discovery.

Judge William J. McGovern entered an order February 19, 2010 granting plaintiff's motion to dismiss his complaint without prejudice, but denying his motion to toll the statute of limitations. The court noted in its statement of reasons that it was unaware of any legal authority or basis for entering the requested tolling order. The court also denied defendant's motion as moot.

Plaintiff moved for reconsideration, which the court denied by order entered May 4, 2010. In his written statement of reasons, Judge McGovern rejected plaintiff's argument that as he had answered defendant's discovery demands, his complaint should be restored. The court noted the complaint was dismissed at plaintiff's request because of his alleged incapacity. The court noted that even if the complaint were restored, plaintiff still sought to avoid court appearances for six months due to health concerns, although plaintiff had also disclosed his plans to travel for an unspecified vacation.

Plaintiff did not appeal either of Judge McGovern's orders. Rather, plaintiff filed the instant complaint in Morris County. The case was then transferred to Sussex County and assigned to Judge Edward V. Gannon. Plaintiff moved to recuse Judge Gannon, who denied the motion on April 19, 2011.

Defendant moved to dismiss the complaint with prejudice. The court granted that motion on May 4. The court's order stated the complaint was dismissed with prejudice because the statute of limitations had expired, the complaint was previously dismissed, and service was not properly effectuated on defendant.

Plaintiff argues his complaint should not have been dismissed, as the statute was tolled because: (1) he was mentally incompetent; and (2) he was under the protection of the Bankruptcy Court for over three years after his cause of action accrued. Plaintiff appears to concede that absent tolling, his new complaint was barred. It was filed beyond the six-year limitations period. N.J.S.A. 2A:14-1.

We are unpersuaded by plaintiff's arguments and affirm Judge Gannon's order. The automatic bankruptcy stay, 11 U.S.C.A. § 362, does not toll a state's statute of limitations; rather, federal law provides only a thirty-day grace period after the stay is lifted or the bankruptcy is dismissed for the commencement of suit. 11 U.S.C.A. § 108(c); Nativo v. Grand Union Co., 315 N.J. Super. 185 (App. Div. 1998), certif. denied, 158 N.J. 71 (1999). As plaintiff asserts his bankruptcy proceeding terminated in 2006, federal bankruptcy law provides him no relief from the statute of limitations.

Nor does the record support plaintiff's argument that the statute of limitations should have been tolled because of his mental illness. The statute is tolled while a party is "insane." N.J.S.A. 2A:14-21. To satisfy the statute, plaintiff must demonstrate "such a condition of mental derangement as actually prevents the sufferer from understanding his legal rights or instituting legal action." Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 113 (1965). As is evident from plaintiff's extensive past and current pro se filings, the record does not support a claim of insanity.

Finally, we note that plaintiff has directed the bulk of his appellate argument toward Judge Gannon's order denying plaintiff's motion for recusal. As plaintiff's notice of appeal indicated plaintiff appealed only from the May 4, 2011 order of dismissal, the recusal denial is not properly before us. In any event, plaintiff's argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).



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