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Giannakopoulos v. Mid State Mall

Superior Court of New Jersey, Appellate Division

December 31, 2014

MID STATE MALL, MARK E. ZELINA, ENGINEER, and MASER CONSULTING, P.A., Defendants-Respondents. MASER CONSULTING, P.A., Third-Party Plaintiff,
YOKO KNOX, Third-Party Defendant

Argued November 12, 2014

Approved for Publication December 31, 2014.

Page 508

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5232-11.

Richard W. Wedinger argued the cause for appellant ( Barry, McTiernan & Wedinger, attorneys; Mr. Wedinger and Laurel A. Wedinger, on the briefs).

Nora Coleman ( Haworth Coleman & Gerstman, LLC ) argued the cause for respondent Mid State Mall.

Joseph T. Ciampoli argued the cause for respondents Mark E. Zelina and Maser Consulting, P.A. ( Thompson Becker & Bothwell, L.L.C., attorneys; Mr. Ciampoli, on the brief).

Before Judges REISNER, KOBLITZ and HAAS. The opinion of the court was delivered by REISNER, P.J.A.D.

Page 509

[438 N.J.Super. 599] OPINION


Plaintiff Panagioti L. Giannakopoulos appeals from a September 12, 2013 order granting defendant Mid State Mall's motion for reconsideration and dismissing plaintiff's complaint against MidState[1]. Plaintiff also appeals from a September 12, 2013 order granting summary judgment in favor of defendants Maser Consulting, P.A., and Maser engineer Mark E. Zelina (collectively, Maser). Plaintiff further appeals from a December 6, 2013 order denying his motion for reconsideration.

To summarize, we conclude that in reconsidering a prior judge's decision to reinstate plaintiff's complaint, the trial court misapplied the standards set forth in Rule 1:13-7(a). The trial court also erred in failing to hold a N.J.R.E. 104 hearing to evaluate plaintiff's claim that he was entitled to tolling of the statute of limitations under N.J.S.A. 2A:14-21 due to his mental incapacity. Consequently, we reverse and remand for further proceedings consistent with this opinion.


We engage in de novo review of the trial court's decision on the summary judgment motion and the motion to dismiss. Town of Kearny v. Brandt, 214 N.J. 76, 91, 67 A.3d 601 (2013). In fact, because the court considered documents outside the pleadings in deciding the latter motion, it is also treated as a summary judgment motion. R. 4:6-2(e); Jersey City Educ. Ass'n. v. City of Jersey City, 316 N.J.Super. 245, 254, 720 A.2d 356 (App.Div. 1998), certif. denied, 158 N.J. 71, 726 A.2d 935 (1999). Accordingly, we review the factual record in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). We review a judge's decision on a reconsideration motion for abuse of discretion. Cummings v. Bahr, 295 N.J.Super. 374, 389, [438 N.J.Super. 600] 685 A.2d 60 (App.Div. 1996). However, we

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owe no special deference to a trial judge's legal interpretations in deciding any motion. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995).

Viewed through the lens of the applicable legal standards, these are the facts. On May 19, 2008, plaintiff suffered horrendous and life-changing injuries when an automobile making a left turn out of the Mid State Mall parking lot struck plaintiff's motorcycle. At the time of the accident, plaintiff was proceeding past the mall with the right of way in his favor.

Two days after the accident, on May 21, 2008, plaintiff allegedly signed a durable power of attorney (POA) naming his brother as his fiduciary for all purposes relating to his property and finances. Among other things, the POA recited that in any future protective proceedings for his person or estate, plaintiff nominated his brother to serve as his guardian. The POA did not specifically authorize the brother to make decisions as to plaintiff's medical treatment. However, an August 5, 2013 certification from the brother attested that the POA was signed at the hospital's request so the brother could make medical decisions for plaintiff.[2]

Plaintiff never filed a lawsuit against the driver of the car that hit him. Due to the extensive injuries plaintiff suffered and the driver's obvious liability, her insurance company offered to pay its entire policy within a day or two after the accident. Because the settlement involved setting up special needs trusts for plaintiff and his young daughter, who was giving up any lawsuit rights she may have had in return for a portion of the settlement, a hearing was [438 N.J.Super. 601] held in January 2009, before General Equity Presiding Judge Frank M. Ciuffani, who approved the settlement and the trusts.[3]

Plaintiff was not present at the friendly hearing. Plaintiff's then-attorney stated to Judge Ciuffani that his client was mentally competent, though severely physically incapacitated. Plaintiff's brother, who held his POA, testified that he managed plaintiff's affairs on a daily basis. He also testified briefly that he had discussed the proposed settlement with plaintiff, and that the reason the settlement included a special needs trust for the daughter was that plaintiff wanted to be sure that her needs were met. A finding that plaintiff was mentally incapacitated on the date of the friendly hearing would require a court to find that the attorney misrepresented or overstated plaintiff's mental capacity, and that the brother either intentionally misstated plaintiff's cognitive ability or believed that plaintiff wanted what the brother thought was best for him, despite plaintiff's inability to make meaningful decisions. We discuss the facts relating to this issue later in this decision.

Over a year later, on May 19, 2010, plaintiff's then-counsel filed a complaint against MidState, alleging negligence in

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the configuration of the turning lane from which the auto driver had exited. That complaint was filed within the two-year statute of limitations. On May 27, 2010, the attorney filed an amended complaint naming several " John Doe" defendants but not describing them with any particularity; that amendment was filed beyond the two-year limitations period.

The attorney attempted service on MidState by Federal Express (FedEx). However, the package was addressed to the mall premises on Route 18 and Tices Lane in East Brunswick, rather than to the Paramus offices of the corporation that owned the Mall. A FedEx invoice dated June 14, 2010 reported " Incorrect [438 N.J.Super. 602] recipient address," and reported that FedEx made a " 1st attempt Jun 09, 2010 at 10:31 A.M." but the package was " undeliverable." However, the invoice also reported that the package was " Delivered" on " Jun 11, 2010 18:36." Hence, viewing this evidence in the light most favorable to plaintiff, the complaint was delivered to the mall premises.

However, MidState submitted evidence that its corporate owner never received the complaint. MidState submitted a certification of the Mall's property manager, attesting that the Mall was owned by a corporation called MidState Hye, L.P., with offices in Paramus. She stated that the mall consisted only of retail stores and there was " no central office for 'Mid State Mall' anywhere at the mall itself." She also attested that there was no location in the mall to leave packages addressed to Mid State Mall, other than one of the ...

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