May 21, 2013
ESTATE OF GERARD RUSSILLO, by its Executrix, PATRICIA RUSSILLO, Plaintiff-Appellant,
SAINT PETER'S UNIVERSITY HOSPITAL, CARE ONE AT EAST BRUNSWICK, CARE ONE AT WALL, and JERSEY SHORE MEDICAL CENTER, Defendants-Respondents, and GEORGE AZER, M.D., PAUL ABEND, D.O., DONALD MICALLEF, M.D., CORAZON CIPRIASO, M.D., MIGUEL MASEDA, M.D., and DR. MCCALE, M.D., Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5537-10.
Christian R. Mastondrea argued the cause for appellant (Eichen Crutchlow Zaslow & McElroy, LLP, attorneys; Mr. Mastondrea, of counsel; William O. Crutchlow, on the brief).
Richard A. Amdur argued the cause for respondent Jersey Shore University Medical Center (Amdur, Maggs & Shor, P.C., attorneys; Mr. Amdur, on the brief).
David L. Gordon argued the cause for respondents Care One at East Brunswick and Care One at Wall (Buchanan Ingersoll & Rooney, P.C., attorneys; Mr. Gordon, Tod S. Chasin, and Philip J. Anderson, of counsel and on the brief).
Michael E. McGann argued the cause for respondent St. Peter's University Hospital (Ronan, Tuzzio & Giannone, P.A., attorneys; Mr. McGann, of counsel; Til J. Dallavalle, on the brief).
Before Judges Sabatino and Fasciale.
Plaintiff Estate of Gerard Russillo (the Estate), by its Executrix Patricia Russillo (the Executrix) (collectively referred to as "plaintiff"), appeals from orders dismissing the complaint with prejudice against defendants, after the case had been administratively dismissed pursuant to Rule 1:13-7(a), and an order denying reconsideration. Plaintiff failed to produce evidence from the Executrix demonstrating exceptional circumstances warranting a vacation of the administrative dismissal. We affirm.
The Estate retained plaintiff's counsel to file a complaint against defendants alleging medical malpractice and various nursing home violations. Plaintiff sought damages pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the Survivor's Act, N.J.S.A. 2A:15-3. As the two-year statute of limitations approached, plaintiff's counsel anticipated that the Estate might not wish to proceed with the case. Nevertheless, given the uncertainty, on July 6, 2010, plaintiff's counsel filed the complaint to protect the Estate from the looming impact of the expiration of the statute of limitations. On July 8, 2010, the court issued a Track III assignment notice, but plaintiff's counsel did not serve defendants because he perceived at that point that the Estate wished not to proceed. As part of the motion practice, plaintiff's counsel certified that
[i]t was our understanding that this matter was not going to be pursued by our client, Patricia Russillo. As a result[, ] this matter had not been sent out for review by an expert and as such the [s]ummons and [c]omplaint were not served.
On January 21, 2011, the court dismissed the lawsuit administratively against all defendants.
In June 2011, before any defendant had been served with the summons and complaint, plaintiff's counsel, who by that point allegedly had been authorized to proceed with the lawsuit, filed a motion to vacate the administrative dismissal. On July 11, 2011, initially applying a good cause standard rather than exceptional circumstances as required by Rule 1:13-7(a), the court vacated the dismissal. Plaintiff then served defendants.
Defendants moved to dismiss the complaint for failure to demonstrate exceptional circumstances. In January 2012, the judge conducted oral argument, granted defendants' motions, and dismissed the complaint with prejudice. Although the judge repeatedly probed the subject of delay, plaintiff's counsel was reluctant to articulate at that time what the purported exceptional circumstances were. On January 6, 2012, the judge wrote to all counsel stating
[t]his is to make it clear that at oral argument [on the dismissal motions] today[, ] I asked plaintiff's counsel if he could elucidate the exceptional circumstances that caused the delay herein. I realized that doing so put counsel in a very difficult position vis-à-vis his attorney-client privilege obligations. I further realized that it would be difficult for plaintiff's counsel to make that decision without extensive consultation with his client. Therefore, while I [dismissed the complaint], I did so with the express caveat that plaintiff may move for reconsideration . . . if, after consultations with his client, he decides that he can articulate what the circumstances are.
Plaintiff then moved for reconsideration with new supporting materials based upon the judge's invitation and the judge conducted oral argument. Plaintiff did not produce evidence from his client, the Executrix, explaining the circumstances of the delay or verifying that the Executrix now wished to proceed with the case. Rather, plaintiff's counsel produced a certification from another relative (the other relative) of the decedent, certifying that the delay was caused by the other relative's temporary inability, mainly for severe health reasons, to communicate with plaintiff's counsel. Plaintiff's counsel certified that the other relative was the individual with whom he interacted on behalf of the Estate.
The record does not reflect that the Executrix authorized the other relative, a non-client, to act on behalf of the Estate. The judge stated that
[t]he [E]xecutrix was either negligent, or more likely said, gee, we have enough things going on in our family, we don't need this lawsuit. Whether she said that explicitly or implicitly I don't know . . . . I don't think that [the other relative's] certification could be sufficient to excuse the [Estate's] non-action . . . .
The judge then denied reconsideration. This appeal followed.
On appeal, plaintiff argues that the judge abused his discretion by dismissing the complaint. "Our review of an order denying reinstatement of a complaint dismissed for lack of prosecution proceeds under an abuse of discretion standard." Baskett v. Kwokleung Cheung, 422 N.J.Super. 377, 382 (App. Div. 2011) (quoting Weber v. Mayan Palace Hotel & Resorts, 397 N.J.Super. 257, 262 (App. Div. 2007)). This is a multi-defendant case; therefore, if reinstatement is sought beyond ninety days, like here, the exceptional circumstances test applies. Id . at 383-84 (citing R. 1:13-7(a)). Against this standard, we see no abuse of discretion.
We begin by stating that there is no proof that the Executrix wished to proceed with the lawsuit. During its reconsideration motion, plaintiff attempted to demonstrate exceptional circumstances by producing the other relative's certification. The record is silent regarding the Executrix's role in the delay. On this record, we are unable to conclude that the Executrix authorized the other relative to proceed with the lawsuit.
The other relative certified that the Estate retained plaintiff's counsel. Plaintiff's counsel has referred consistently to the Executrix, rather than the other relative, as his client. Plaintiff's counsel, therefore, named the Executrix in the complaint as the person seeking damages pursuant to the Wrongful Death Act. See N.J.S.A. 2A:31-2 (indicating that an executor shall bring the action when decedent dies testate and his will is probated). Likewise, he identified the Executrix in the complaint as the person seeking damages under the Survivor's Act. See N.J.S.A. 2A:15-3 (stating that an executor may have such a cause of action).
Plaintiff's counsel prudently filed the complaint to protect the Estate and Executrix from being barred by the statute of limitations. He filed the complaint protectively, even though he believed that the Executrix, the sole individual with the legal authority to act on behalf of the Estate, at that juncture, did not want to pursue the case. There is nothing in this record to demonstrate that his belief at the time was misguided. Even though plaintiff's counsel discussed the lawsuit with the other relative, the other relative's certification does not mention the Executrix, and plaintiff did not produce any evidence from the Executrix to explain the reasons why the Executrix did not pursue the complaint. This is so even though the judge asked plaintiff's counsel to file a reconsideration motion and "elucidate the exceptional circumstances that caused the delay."