ANGEL L. LOPEZ v. FERRY PLAZA, SME, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2851-04T52851-04T5

ANGEL L. LOPEZ,

Plaintiff-Appellant,

v.

FERRY PLAZA, SME, and

PASTOR DAVID BOUDWIN,

Defendants-Respondents.

_________________________________________________

 

Argued February 28, 2006 - Decided April 17, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

L-1898-03.

Nicholas Barone argued the cause for

appellant (Peter N. Davis & Associates,

attorneys; Christine Salimbene on the

brief).

Frederick W. Hardt argued the cause for

respondents (Mr. Hardt and Pamela A. Moy

on the brief).

PER CURIAM

Plaintiff Angel Lopez appeals the denial of his motion to reinstate his personal injury complaint against defendants Ferry Plaza, SME and its business manager, Pastor David Boudwin, which had been dismissed for lack of prosecution one year before plaintiff's reinstatement motion was filed. We affirm, finding that the motion judge did not abuse his discretion in determining that plaintiff's motion was untimely and that good cause for reinstatement had not been demonstrated. Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 270 (App. Div. 1989).

On April 26, 2001, a notice of claim by counsel for plaintiff alleging a falldown injury sustained on April 4, 2001 on Ferry Plaza's premises was provided to defendants. Counsel for Ferry Plaza responded in a letter dated May 14, 2001 that questioned plaintiff's alleged status as a tenant and requested information regarding plaintiff's injuries and the basis for his claim of negligence on defendants' part. No information was supplied.

Almost two years later, on March 28, 2003, a complaint was filed on plaintiff's behalf alleging that on April 4, 2001 plaintiff had sustained injuries, while a tenant, in a fall at premises owned by Ferry Plaza, SME and managed by Boudwin. He claimed that a lack of lighting in the hallway created a dangerous condition that caused his fall. The complaint was not personally served on Ferry Plaza until August 27, 2003, five months after the complaint had been filed.

On October 30, 2003, plaintiff sought entry of a default against Ferry Plaza SME. However, because the complaint had been dismissed without prejudice for lack of prosecution pursuant to R. 1:13-7(a) on October 11, 2003, the application was denied. On January 21, 2004, Ferry Plaza and Boudwin sought to file an answer the complaint, but their answer was rejected for the same reason.

A year passed from the date of dismissal until the filing of a motion by plaintiff to reinstate the complaint on October 12, 2004. The motion was denied on November 5, 2004 on the ground that plaintiff had not demonstrated extraordinary circumstances warranting restoration. On November 30, 2004, plaintiff sought reconsideration, claiming that the appropriate standard for restoration was "good cause," not "extraordinary circumstances," and that pursuant to Stanley v. Great Gorge, 353 N.J. Super. 475, 485 (Law Div. 2002), he was entitled to a rebuttable presumption that good cause had been demonstrated, which presumption had not been overcome. Defendants opposed the motion, noting the history of the proceedings in the matter, the fact that almost four years had elapsed since the accident, the absence of any discovery, the fact that the property was under contract of sale to an unrelated third party, and the fact that reinstatement of suit would create an unanticipated title encumbrance. In a reply certification, counsel for plaintiff attested that:

At the time that this matter had been administratively dismissed, and continuing to the present, this office experienced serious staffing problems which interfered with our ability to address "non emergent" matters. These circumstances are recounted here not as an excuse for any delay in filing this motion but rather as an explanation and to demonstrate good cause why the plaintiff's complaint should be restored. Approximately one year ago this office's paralegal of ten years left employment with this office, giving no notice. Since that time a string of approximately eight people have been hired in an attempt to refill that position, each unsuccessfully. Our office is a small office. This revolving door situation involved a key position in our practice created a back log in which we were simply unable to address matters that were not "urgent." That unfortunate situation has been addressed and hopefully resolved.

Plaintiff's motion was denied in an order dated January 21, 2005. In an oral opinion placed on the record, the motion judge found that defendants had been prejudiced by plaintiff's failure to divulge the basis for the complaint and by their consequent inability to investigate. The court observed that, unlike an auto accident where the involved defendant can determine the basis for plaintiff's likely claim, here the defendants had no way of knowing its basis. The court found the sale of the property created additional prejudice.

We affirm the court's decision. In doing so, we find no need to address the validity of the bright-line standard for restoration established by the trial court in Stanley. As we understand the matter, the property owned by defendant Ferry Plaza was a multi-building apartment complex; Lopez was a visitor, not a tenant; and it is alleged by defendants that his fall occurred as the result of intoxication. The defendants' past inability to pinpoint the location of the accident within the building complex, to investigate the alleged dangerous condition that was claimed to have been its cause, and to confirm plaintiff's alleged inebriated state and obtain witnesses to it, along with defendants' present inability to obtain discovery as the result of the sale of the property, provide ample support for the motion judge's conclusion that prejudice has been sustained as the result of the almost four-year delay in the prosecution of this matter.

 
Affirmed.

The courts were not in session on October 11, which was Columbus Day.

(continued)

(continued)

5

A-2851-04T5

April 17, 2006