July 9, 2013
GEZA SIPOS, Plaintiff-Appellant,
LUIS A. MAURICE-CALLES, a/k/a LUIS A. MAURICI-CALLES, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 11, 2013
On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Docket No. L-4464-08.
Patricia M. Love argued the cause for appellant (Hendricks & Hendricks, attorneys; Ms. Love, on the brief).
Michelle A. Cohen argued the cause for respondent (Law Offices of Brian J. McGovern, LLC, attorneys; Ms. Cohen and Brian J. McGovern, on the brief).
Before Judges Parrillo and Messano.
Plaintiff Geza Sipos appeals from a September 14, 2012 order of the Law Division denying his motion to restore his automobile negligence complaint against defendant Luis A. Maurice-Calles. We affirm.
This action arises out of an automobile accident that occurred on June 4, 2006, when defendant's vehicle collided with plaintiff's, allegedly resulting in injuries to plaintiff. Plaintiff filed a complaint against defendant on June 2, 2008, two days shy of the expiration of the two-year statute of limitations. His complaint, however, was not served upon defendant and consequently the action was administratively dismissed without prejudice on December 13, 2008, for want of prosecution.
It was not until over one year later, on January 27, 2010, that plaintiff's counsel first advised defendant's insurance carrier of the existence of plaintiff's claim and his representation of plaintiff. Counsel for defendant was immediately assigned and sent correspondence to plaintiff's counsel on February 19, 2010, advising of defendant's representation, informing that the case was dismissed, providing a current address for defendant, and inquiring whether plaintiff intended to pursue his claim. Having received no response, defendant's counsel sent numerous follow-up letters to plaintiff's counsel through April 15, 2011, reminding him that the case remained dismissed for lack of prosecution, providing an address for service of the complaint upon defendant, and advising that a motion to dismiss with prejudice would be filed in thirty days if counsel failed to respond. Plaintiff's counsel never replied and defendant's counsel closed the file.
The complaint was ultimately served on defendant by plaintiff's new counsel on August 9, 2012, at the same address provided to plaintiff's counsel in February 2010 and several times thereafter. Plaintiff's counsel also filed a motion to restore the complaint almost four years after its dismissal for want of prosecution. Accompanying the motion was the lone certification of previous counsel, alleging as "good cause" a fire at his law office that occurred three years after the dismissal of plaintiff's complaint:
Due to a fire that destroyed my law office at 268 Somerset Street in New Brunswick, New Jersey on December 16th, 2011, all of my files were destroyed which caused to [sic] painstakingly restructure my files, at which time it was discovery [sic] that the within matter was dismissed by the Court on December 13th, 2008.
Following defendant's opposition and oral argument, the Law Division judge denied the motion, finding that "[t]here's no evidence in this case or even an assertion that plaintiff never received the notice of dismissal[, ]" and further:
The Court finds that plaintiff's attorney here has fallen short of establishing good cause to reinstate. Plaintiff has allowed over three years to elapse after dismissal of the case with no diligence of pursuing its litigation. Even considering the unfortunate circumstances of the fire of plaintiff's attorney's office, there are no facts certified as to the reason behind allowing three years plus to elapse with no activity on the case prior to the fire. Movant's motion and supplements do not provide a sufficient argument amounting to the good cause necessary to vacate the dismissal and reinstate the case. Therefore, plaintiff's motion to restore the matter to the active trial list is denied.
On appeal, plaintiff argues that his complaint should be restored "in the interests of justice." We disagree.
Our review of an order denying reinstatement of a complaint dismissed for lack of prosecution proceeds under an abuse of discretion standard. See Weber v. Mayan Palace Hotel & Resorts, 397 N.J.Super. 257, 262 (App. Div. 2007). Reinstatement of a dismissed complaint is permitted upon a showing of "good cause." R. 1:13-7(a). We explained the concept of "good cause" in Ghandi v. Cespedes, 350 N.J.Super. 193 (App. Div. 2007):
Good cause is an amorphous term, that is, it is difficult of precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the Court Rule being applied. Rule 1:13-7(a) is an administrative rule designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion. Dismissals under the rule are without prejudice. Accordingly, the right to reinstatement is ordinarily routinely and freely granted when plaintiff has cured the problem that led to the dismissal even if application is made many months later.
[Id. at 196 (internal quotations and citations omitted).]
Here, plaintiff's sole excuse for the delay in serving defendant appears to be the fire in the law office of his prior attorney. Yet three-and-one-half years had elapsed between the filing of his complaint and the fire event. During the interregnum, notices were sent by the court alerting plaintiff's counsel to the impending dismissal for lack of prosecution and the ultimate dismissal. Moreover, defendant's counsel sent at least six letters to plaintiff's counsel not only reminding him of the dismissal and requesting that he advise as to his intentions, but also providing a valid address for the defendant at which he could be served with process. The last notification was sent eight months prior to the fire, wherein defendant's counsel advised that she would seek to dismiss the complaint with prejudice, yet no efforts thereafter were made to prosecute the matter. No explanation is provided for the lack of response to these notices,  or counsel's inactivity during this time.
The present matter is unlike Baskett v. Cheung, 422 N.J.Super. 377 (App. Div. 2011), wherein the plaintiff's original attorney advised the court that he did not receive any of the notices regarding the dismissal and, if he had received notification, he would have acted to remedy the dismissal. Id. at 381. Here, as noted, plaintiff's counsel was repeatedly advised of the dismissal of plaintiff's complaint, frequently reminded of the need to take action, and even assisted in the matter by the provision of a valid address for service upon defendant.
Also dissimilar is Ghandi, supra, wherein we concluded that "[b]ecause defendants had not objected to reinstatement of the matter and were ready to file an answer to facilitate moving it forward to a resolution on the merits, the motion judge mistakenly exercised his discretion in denying the motion." 390 N.J.Super. at 197. There, unlike the present matter, the defendants had been timely served with process and were aware of the lawsuit, and defendants' counsel did not object to the reinstatement. Id. at 195, 197. Moreover, the complaint had only been dismissed for fifteen months. Ibid.
Here, there is simply no excuse for the failure to act on the dismissal in the three-and-one-half years prior to the fire, especially in the face of defendant's counsel's repeated reminders and assistance We therefore find no basis to conclude that the trial court abused its discretion in denying plaintiffs' motion to restore a complaint that laid dormant for over forty-two months after it was administratively dismissed pursuant to Rule 1:13-7(a) Because we conclude that plaintiff has failed to establish "good cause" for restoration of his complaint we need not consider whether defendant was prejudiced by the gross delay in service of the complaint We simply note in that regard the concern raised by defendant over his ability to obtain all pertinent medical records of plaintiff including records of any pre-existing injury condition or complaints as well as an accurate independent medical examination given the substantial passage of time since the accident See NJAC 13:35-65(b).