RAMON DIAZ v. THE CLAM BROTH HOUSE, CADILLAC BAR, HARLEY DAVIDSON MOTORCYCLES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5117-04T55117-04T5

RAMON DIAZ, Administrator of

the Estate of Octavio L. Diaz,

Plaintiff-Appellant,

v.

THE CLAM BROTH HOUSE, CADILLAC BAR,

HARLEY DAVIDSON MOTORCYCLES,

Defendant-Respondents.

_________________________________________________

 

Argued February 28, 2006 - Decided April 17, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

L-1405-04.

Allen Zavodnick argued the cause for

appellant (Zavodnick, Perlmutter &

Boccia attorneys; Mr. Zavodnick on the

brief).

Robert M. Kaplan argued the cause for

respondents (Margolis Edelstein attorneys;

Leor J. Kaplan on the brief).

PER CURIAM

Plaintiff Ramon Diaz, the administrator of the estate of Octavio Diaz, appeals an order dismissing his complaint against defendant Pen Que Risky Corp. (improperly named in the complaint as Clam Broth House and Cadillac Bar) as barred by the statute of limitations. We affirm.

Octavio Diaz was injured in a motorcycle accident on November 4, 2001 and died on November 6, 2001. Plaintiff claims tavernkeeper liability on the part of defendant.

Melinda Flores, the secretary for plaintiff's counsel, has certified that on October 27, 2003, she

3. . . . personally prepared a complaint with the assistance of Allen Zavodnick, Esq., on behalf of the Estate of Octavio Diaz. (See letter transmitting complaint to the Court dated October 27, 2003 along with case information statement).

4. The complaint was mailed with the appropriate check (#4763) and Case Information Statement to Superior Court of New Jersey, Civil/Special Civil/General Equity Fee Office, 595 Newark Avenue, Room G-9, Jersey City, New Jersey 07306.

Flores does not specify when she mailed the complaint, and she does not state either that she placed it in a mailbox or delivered it to a post office. No corroborating proof of mailing or receipt has been provided.

In March 2004, following an inquiry from the sister of Octavio Diaz regarding the status of the case, Zavodnick alleges that he realized that a copy of the complaint stamped "filed" had not been returned to him and, upon inquiry, he determined that filing had not occurred. Filing took place on March 9, 2004 after the two-year statute of limitations applicable to the survivorship and wrongful death claims pursuant to N.J.S.A. 2A: 14-2 and 2A:31-3, respectively, had run. After service had been effected and an answer filed, defendant successfully moved for dismissal of the complaint.

Because plaintiff's proof of mailing is inadequate, no presumption of delivery arose that would permit us to find the complaint timely filed. See SSI Medical Services v. State of N.J., Dept. of Human Servs., 146 N.J. 614, 624 (1996) (requiring proof in a small-office context that the mail was correctly addressed, proper postage was affixed, the return address was correct, and the mail was deposited in a proper mail receptacle); Cwiklinski v. Burton, 217 N.J. Super. 506, 511 (App. Div. 1987) (finding no presumption of delivery to have arisen in the absence of proof of timely mailing); but see Waite v. Doe, 204 N.J. Super. 632 (App. Div. 1985), certif. denied, 102 N.J. 398 (1986) (finding presumption of delivery to exist upon proof of timely mailing by certified mail).

In Cwiklinski, we stated:

Plaintiffs' proofs consist merely of an affidavit of their attorney's secretary that does not indicate that the envelope containing the complaint was delivered to the post office. Indeed, the affidavit does not even state that the secretary witnessed the mail being picked up at the law offices. Since plaintiffs cannot establish that the complaint was mailed, they cannot rely upon the presumption of its delivery to the Clerk's Office within a reasonable period of time.

[217 N.J. Super. at 511.]

In Cwiklinski, we found plaintiff's proofs to be inadequate to permit a presumption of timely delivery to arise. The same defect exists in the present case.

Accordingly, the order dismissing plaintiff's complaint against defendant Pen Que Risky Corp. (incorrectly designated in the complaint as The Clam Broth House and Cadillac Bar) is affirmed.

 

Plaintiffs The Clam Broth House and Cadillac Bar are properly known as Pen Que Risky Corp.

Plaintiff's complaint against defendant Harley Davidson Motorcycles was later dismissed with prejudice for failure to serve discovery. See R. 4:23-5. No appeal from that dismissal has been filed.

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A-5117-04T5

April 17, 2006