DELIA MACKASON v. ROBERT MAURO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5948-04T15948-04T1

DELIA MACKASON,

Plaintiff-Appellant,

v.

ROBERT MAURO,

Defendant-Respondent.

________________________________

 

Submitted April 26, 2006 - Decided July 14, 2006

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

No. L-73-04.

Drazin and Warshaw, attorneys for appellant

(Ralph E. Polcari, on the brief).

Ambar I. Abelar, attorney for respondent.

PER CURIAM

Plaintiff has appealed from a trial court order dismissing his complaint for failure to state a claim. We affirm.

From the sparse record before us, we glean the following facts. Plaintiff Earl Mackason is the son of Delia Mackason and the brother of William Mackason. On July 25, 1995, defendant Mauro filed suit on behalf of William Mackason, seeking damages for an incident in which William alleged he was assaulted in a bar in Long Branch. According to Mauro's certification dated June 23, 2004, Mackason first asked him to file a workers' compensation claim as a result of the incident. He certified that Delia Mackason called him on July 25, 1995, and told him she was calling on behalf of William and that William had been mistaken; according to Delia, William was not working at the bar at which the assault occurred. She said William wanted Mauro to file a personal injury suit for him. Mauro filed the complaint that day, naming as defendants Guido's Cocktail Lounge, Inc., Guido Grock and Horace Cody.

William Mackason, however, died in September 1995, almost two months after the filing of the complaint. Sometime after the complaint was filed, Mauro learned that the date of the assault was not July 29, 1993, as he had understood from William, but, rather, July 23, 1993. Thus, the complaint he had filed on July 25, 1995, was untimely.

According to Mauro, he told Delia of this problem. Mauro also asserted that Delia wished to continue the suit and that he discussed with her the concept of a wrongful death action. The record before us contains a letter to her from Mauro dated July 3, 1996, explaining what is entailed in a wrongful death action and the proof problems she would confront if she wished to pursue such a course of action. In that letter, Mauro informed her that the personal injury action was included on a dismissal list scheduled for July 19, 1996, and that in his opinion the case could not be successfully prosecuted. The record contains a letter to Delia Mackason from the court informing her that this action was dismissed on January 17, 1997. We have not been provided with a copy of this dismissal.

In September 1997, a separate action was filed seeking damages for the assault upon William Mackason. The named plaintiff was Vaughn Mackason, as administrator ad prosequendum, and Vaughn Mackason, individually. We are informed that Vaughn Mackason was the father of William. According to a letter of defendant's attorney dated April 2, 2005, Delia and Vaughn were divorced at the time of William's death. The named defendants in this second suit were Guido's Cocktail Lounge, Inc., Horace L. Cody and fictitiously named defendants. We have not been provided with a complete copy of this complaint; we are informed this action was dismissed for reason of the statute of limitations on December 3, 2002, but we have not been provided with a copy of this order.

In January 2004, Delia Mackason, represented by the firm which filed the September 1997 complaint, sued defendant Mauro for malpractice, based upon the untimely filing of the original complaint. In March 2004, however, Delia Mackason died. We are also informed that Vaughn Mackason has died. We have not been provided with death certificates for either.

We are informed that Earl Mackason, brother of William and son of Delia, has qualified as the general administrator of the estate of Delia. We are further informed that Earl encountered delays in completing this appointment because "certain siblings" (not otherwise identified) would not renounce their claims to serve as administrator. He has not, however, qualified as the administrator ad prosequendum of the estate of Delia.

Meanwhile, defendant Mauro moved to dismiss the complaint. The trial court granted the motion, noting in the order that Earl Mackason lacked standing to pursue this suit. The instant appeal is from that order.

Appellant urges that the failure to qualify as administrator ad prosequendum was a technical matter and that he should have been afforded time to attend to it. In support of that position, he cites Cammarata v. Public Service Co-ordinated Transp., 124 N.J.L. 38 (E. & A. 1940), and In re Baby Strong, 65 N.J. Super. 576 (App. Div. 1961). We consider both distinguishable.

If the problem had been only that Earl Mackason had failed to complete the process of qualifying as administrator ad prosequendum of the estate of Delia Mackason, those cases might bear upon the issue. Here, however, not only has Earl Mackason never qualified as the administrator ad prosequendum of the estate of Delia Mackason, but Delia Mackason never qualified as either the general administrator or the administrator ad prosequendum of the estate of William Mackason. The trial court's conclusion that Earl Mackason lacked standing to prosecute this action was correct.

 
Affirmed.

Our ability to assemble an accurate chronology of what occurred has been significantly hampered by the abbreviated appendices filed on behalf of both parties.

Appellant in his brief says that the matter was reinstated in September 1997. In fact, however, an entirely new complaint was filed, with a new docket number.

(continued)

(continued)

5

A-5948-04T1

July 14, 2006