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Sipos v. Maurice-Calles

Superior Court of New Jersey, Appellate Division

July 9, 2013

GEZA SIPOS, Plaintiff-Appellant,
v.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

PER CURIAM

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 ...

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