JEANNE R. COLBERT, et al. v. JOSEPH W. ZIEGLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6636-04T56636-04T5

JEANNE R. COLBERT and DONTE

COLBERT, a minor by his and

through his parent and natural

guardian, STEPHEN J. COLBERT

and STEPHEN J. COLBERT,

Individually,

Plaintiffs-Appellants,

v.

JOSEPH W. ZIEGLER,

Defendant-Respondent.

____________________________________

 

Submitted July 5, 2006 - Decided August 1, 2006

Before Judges Skillman and Lisa.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3231-01.

Powell & Baltimore, attorneys for appellants (Wayne Powell, on the brief).

Law Offices of Gregory J. Sutton, attorneys for respondent (Janet Law, on the brief).

PER CURIAM

Plaintiff filed this action on May 18, 2001. The court dismissed the action on December 1, 2001 pursuant to Rule 1:13-7 for lack of prosecution. Thereafter, the answer submitted by defendant was returned unfiled because the action had been dismissed. On March 20, 2002, defendant's counsel advised plaintiff's counsel that his answer had been returned and the case had been closed. On April 18, 2002, defendant's counsel sent another letter to plaintiff's counsel again advising him that the complaint had been dismissed on December 1, 2001, and inquiring whether "you have filed the appropriate motion to reinstate the Complaint."

Plaintiff did not take any action until more than three years later, when he filed a motion to reinstate the complaint. On the return date of this motion, plaintiff's counsel gave the following explanation for failing to file the motion to reinstate the complaint sooner:

I got a letter, just as Ms. Law says, back in April 2002. I did what we always do when we get that kind of a letter, which is to hand the file to the secretary who's responsible for service . . . .

. . . .

. . . With an indication that, you know, we should, "Here's the letter, file a motion to reinstate. If you need a certification, get the file back to me, I'll dictate the cert." The file went to her and then it disappeared. . . .

. . . .

. . . [T]he only reason that we discovered that the file was in the status that it was is because we got a new computer system at the beginning of 2005, and when that information was taken from that secretary's old computer and placed into the new database, up comes a list of all of these files that should have been active files which appeared to be inactive. So we went back and began to pull the files out, and lo and behold, we find this file and others where we've had the same problem.

The trial court denied the motion, stating in a brief oral opinion:

Above and beyond the good cause requirement of Rule 1:13-7, Rule [4:50-1] requires that the motion be made within a reasonable time, and not more than one year after the judgment or order of proceeding was entered. There is no dispute that this is about three and a half years after the dismissal in this matter.

. . . I am going to deny the motion to reinstate the complaint and restore the matter to active trial list. . . . I find that there was not one but two opportunities for Counsel to determine back in 2002 that this matter had some problems, above and beyond just the dismissal for lack of prosecution. . . . [U]ltimately it is the responsibility of the lawyer to make sure that matters that are filed with the Court are handled properly. I'm going to deny the motion, I find that it's not justified under good cause with two letters being sent and the passage of time under 4:50.

We affirm substantially for the reasons stated by the trial court. The motion to reinstate was not filed until more than three-and-a-half years after the dismissal of the complaint for lack of prosecution. This delay was for longer than the one-year period within which the court in Stanley v. Great Gorge Country Club, 353 N.J. Super. 475, 485 (Law Div. 2002) held a "rebuttable presumption [of] good cause" for reinstatement should apply. Beyond that one-year period, the failure of a secretary to properly attend to her duties does not provide the good cause required for reinstatement of a complaint under Rule 1:13-7. Moreover, relief under Rule 4:50-1(a) for "excusable neglect" is only available for a one-year period following entry of judgment. Therefore, we conclude that the trial court did not abuse its discretion in denying plaintiff's motion to reinstate.

Affirmed.

 

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A-6636-04T5

August 1, 2006