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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...