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Joseph Luongo v. Zachary D. Linke

June 13, 2012

JOSEPH LUONGO, PLAINTIFF-APPELLANT,
v.
ZACHARY D. LINKE, DEFENDANTS-RESPONDENTS, AND VAULT, AND GEICO INSURANCE COMPANY, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3848-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 8, 2012 --

Before Judges Yannotti and Kennedy.

Plaintiff Joseph Luongo appeals from an order entered by the Law Division on July 13, 2011, denying his motion for reinstatement of his complaint pursuant to Rule 1:13-7(a), and an order entered on September 19, 2011, denying his motion for reconsideration. We reverse.

This appeal arises from the following facts. On September 22, 2007, plaintiff was operating a motor vehicle, traveling southbound on Main Avenue near Route 3 in Clifton, New Jersey. According to plaintiff, defendant Zachary D. Linke (Linke) was operating a vehicle traveling northbound on Main Avenue. Plaintiff claims that Linke attempted to make a left turn into a driveway and collided with plaintiff's vehicle, causing him to sustain serious and permanent injuries. According to the police report, Linke was driving a vehicle owned by an entity called "Vault," with an address in Parsippany, New Jersey.

On September 3, 2009, plaintiff filed a complaint in the Law Division naming Linke, Vault and Geico Insurance Company (Geico) as defendants. He alleged that on September 22, 2007, Linke had operated his vehicle "in a careless, reckless and/or negligent manner." Plaintiff further alleged that, as a result of Linke's "carelessness, recklessness and/or negligence," he sustained serious bodily injuries, including a "permanent injury, within a reasonable degree of medical probability, other than scarring or disfigurement."

Plaintiff additionally alleged that, at the time of the accident, he was "insured for personal injury protection (PIP) benefits under [a policy issued by] G[eico]." Plaintiff claimed that, "despite repeated demands for payment of past and future PIP benefits, income continuation benefits, essential service benefits, and reimbursement for rental payments," Geico refused to make such payments, which plaintiff claimed were required under the terms of the policy.

On December 28, 2009, plaintiff's attorney executed a stipulation dismissing without prejudice the claims against Geico. The stipulation stated that the parties had agreed that the proper forum for the PIP claims was arbitration.

In January or February 2010, the Bergen County Sheriff attempted to serve Linke at an address in Lyndhurst but was unable to do so because he had moved from that address. On or about March 18, 2010, a postal search was undertaken, and it was returned indicating that the forwarding order had expired. On April 1, 2010, the court dismissed the complaint for failure to prosecute.

Plaintiff's attorney did not perform a "skip trace" until January 6, 2011, which showed that Linke was residing at an address in Brighton, Massachusetts. Plaintiff served Linke at that address on January 19, 2011. Plaintiff's attorney and Linke's attorney agreed to extend the time for Linke to file an answer, but the trial court advised Linke's attorney that the matter had been dismissed.

In March 2011, plaintiff's attorney attempted to serve the complaint upon Vault, but was unable to do so. Plaintiff suggests that the company may have gone out of business.

On June 17, 2011, plaintiff filed a motion seeking reinstatement of the complaint. In support of the motion, plaintiff submitted a certification from Joseph Albano (Albano), an associate of the Fusco & Macaluso law firm. Albano stated that the "dismissal for failure to prosecute was inadvertent and unintentional . . . ." He stated that the dismissal "resulted from uncertainty" of Linke's address. Linke did not oppose the motion.

The court entered an order dated July 13, 2011, upon which the court wrote that the application had been denied since plaintiff had not shown "exceptional circumstances" as required by Rule 1:13-7(a). The court wrote that plaintiff had not explained why service was made upon Linke more than a year after the complaint was dismissed. The court indicated that ...


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