June 28, 2012
LEON F. VARGAS, PLAINTIFF-APPELLANT,
KEHINDE ROLUGA AND OLUWAPELUMI ROLUGA, DEFENDANTS-RESPONDENTS
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-ll69-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 20, 2012 -
Before Judges A. A. Rodriguez and Reisner.
Plaintiff Leon F. Vargas appeals from an October 1, 2010 order denying his motion to amend the complaint to add a new defendant. For the reasons that follow, we affirm.
Plaintiff's complaint, filed on March 16, 2009, alleged that on March 27, 2007, plaintiff fell on a sidewalk in front of defendant's property and was injured. Plaintiff's appendix includes a copy of a July 30, 2010 arbitration award, which entered a no-cause or zero dollar award to plaintiff, based on the arbitrator's finding that defendant did not own the property. We infer from plaintiff's brief that he did not file a demand for a trial de novo within the required thirty-day time frame.
However, on or about August 18, 2010, which was more than a year beyond the two-year statute of limitations for filing a personal injury complaint, plaintiff's counsel filed a motion to amend the complaint to add a new defendant. See N.J.S.A. 2A:14-2. In a certification supporting the motion, plaintiff's counsel asserted that at the recently-held July 30 arbitration, defendant revealed that he did not own the property where plaintiff fell. In the certification, plaintiff's counsel attested that he did not learn this information sooner, because defendant "failed to take part in discovery in this matter." However, the attorney did not explain why, if defendant ignored his discovery requests, he had not moved to enforce discovery in a timely manner.
The certification also did not indicate that the proposed amended complaint was attached to the motion. See R. 4:9-1. Instead, the certification indicated that the attorney still did not know the name of the alleged true owner of the property where the fall occurred. However, he averred that he had "recently been working with the tax assessor's office to determine the correct address and owner of the offending property" and would "provide this information to the Court before the deciding of the motion." The motion judge denied the motion, noting that the case had "a 10/18/10 trial date."
Having reviewed the record provided to us, we find no basis to disturb the order on appeal. First, plaintiff's counsel failed to provide us with the defendant's entire August 7, 2009 answer to the complaint. In the section of his pro se answer for "affirmative defense(s)," defendant typed "FIND DEFENSE ATTACHED TO THIS DOCUMENT." Plaintiff's counsel did not provide us with a copy of that attached document or explain that no such document was attached to the answer. Therefore, it is not clear from this record that defendant failed to raise the issue of property ownership in his answer.
More significantly, nothing in what plaintiff has provided to us thus far convinces us that it was an abuse of the trial court's discretion to deny the motion to amend the complaint.
By the time the motion was filed in August of 2010, the two-year statute of limitations for filing suit against a new defendant had expired, N.J.S.A. 2A:14-2, and the case had an impending trial date. Plaintiff's motion did not state grounds to invoke the discovery rule, because there was no explanation as to why, in the exercise of ordinary diligence, counsel failed to file a timely discovery motion. Finally, the motion did not attach a copy of the proposed amended complaint, as required by Rule 4:9-1.
For all of these reasons, the order on appeal is affirmed.
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