RUBY E. VENTURA v. ISAAC PANCHUM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0499-07T30499-07T3

RUBY E. VENTURA,

Plaintiff-Appellant,

v.

ISAAC PANCHUM,

Defendant-Respondent.

__________________________

 

Argued January 20, 2009 Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4980-02.

Paul Fernandez argued the cause for appellant (Paul Fernandez & Associates, attorneys; Mr. Fernandez, on the brief).

Brian T. Higgins argued the cause for respondent (Norton, Arpert, Sheehy & Higgins, attorneys; Mr. Higgins, of counsel on the brief).

PER CURIAM

Plaintiff, Ruby E. Ventura, appeals from an order of the Law Division entered on September 7, 2007, denying her motion to restore her automobile negligence complaint to the active trial calendar. We affirm.

On October 3, 2001, defendant Isaac Panchum failed to stop at a blinking red light and struck the left side of plaintiff's vehicle as she proceeded through the intersection at a yellow blinking light. As a result, plaintiff filed an automobile negligence complaint seeking to recover damages for injuries and losses sustained during the accident.

The complaint was filed on October 1, 2002, and the answer on October 30, 2002. The parties amicably resolved the property damages claim, and when the stipulation of dismissal as to that count was filed on November 19, 2002, the court mistakenly dismissed the entire complaint for "lack of prosecution." Defendant's attorney, concerned that no scheduling notices had been sent to his office, learned of the error when he contacted the court. He immediately informed plaintiff's attorney of the dismissal by letter dated December 1, 2003.

Nearly three years later, on October 13, 2006, plaintiff's attorney wrote to the court, advising that the dismissal of the entire complaint was a "court clerical error" because only the property damage aspect of the case had been settled. Defense counsel objected to any administrative reinstatement because of the three-year passage of time. Accordingly, the case was not administratively reinstated.

On August 15, 2007, plaintiff's attorney filed a formal motion to reinstate the complaint. On September 7, 2007, the application was denied. The court noted on the order:

This application is denied. This matter was dismissed almost 5 years ago. It is incumbent on plaintiff to monitor its files so that it could have made a timely application to have this matter reinstated. Plaintiff knew in 2006 of this situation but waited nearly 10 months to make this motion.

This appeal followed.

The application to reinstate was made pursuant to Rule 1:13-7(a), which provides that where not consented to, a motion to reinstate "shall be granted only on a showing of exceptional circumstances." Clearly, exceptional circumstances must be established in order for plaintiff to succeed on the application for reinstatement.

In Ghandi v. Cespedes, 390 N.J. Super. 193, 195-96 (App. Div. 2007), pursuant to Rule 1:13-7(a), we reversed a trial court's denial of reinstatement of a complaint that had been administratively dismissed nearly seventeen months earlier. The administrative dismissal resulted from plaintiff's counsel's inattention to the matter and resulting failure to request the entry of judgment when no answer was timely filed. Ghandi, supra, 390 N.J. Super. at 195. In Ghandi, however, defense counsel did not oppose the motion for restoration and was prepared to file an answer and resolve the matter on the merits. Ibid. We held that motions to restore should be viewed with "great liberality" due to the "'general disinclination to invoke the ultimate sanction of dismissal where the statute of limitations has run.'" Id. at 197-98 (quoting Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 268-69 (App. Div. 1989)).

Notwithstanding, Ghandi is inapplicable to this case. This defendant, unlike the defendants in Ghandi, strenuously objects to reinstatement and has done so since the first request for reinstatement. This defendant asserts case-specific prejudice, noting that among other things, the defense's expert physician has retired since the 2001 automobile accident. Furthermore, in Ghandi there was a seventeen-month delay in seeking reinstatement, and the error was due to oversight in the attorney's office. In this case there is an unexplained three-year delay on the part of counsel to prosecute plaintiff's claim even after being notified of the dismissal. Plaintiff's attorney offers by way of explanation the fact that discovery continued through June 19, 2003. That is not relevant as to the lapse in time from December 1, 2003, to August 15, 2007.

Once having been informed of the mistaken dismissal, it was counsel's responsibility to immediately communicate with the court. Had that occurred, the likely outcome would have been reinstatement of the complaint, even in the absence of defendant's consent, because the administrative dismissal stemmed from the court's error. Exceptional circumstances for reinstatement would have been readily established because the fault was with the court.

We review the trial court's decision on reinstatement pursuant to an abuse of discretion standard. Ghandi, supra, 390 N.J. Super. at 196. We find that no abuse of discretion occurred because plaintiff did not show any cause for the delay between notice of the dismissal of the proceeding in December 2003, and the filing of the motion to reinstate on August 15, 2007.

Defense counsel, in an abundance of caution, addresses the refusal to reinstate as if it were the product of an application for relief from judgment or order filed pursuant to Rule 4:50. It is contended that even if the application is characterized as a Rule 4:50 motion, it nonetheless fails. The only applicable sections of the rule are Rule 4:50-1(a) and (f). When a litigant seeks to set aside a judgment on the basis of "mistake, inadvertence, surprise, or excusable neglect," Rule 4:50-1(a), the application must be made within one year of entry. R. 4:50-2. This application was made long after a year had elapsed, so subsection (a) is inapplicable. Rule 4:50-1 (f), the catchall provision, extends to exceptional situations, and "its boundaries are as expansive as the need to achieve equity and justice." Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966). Motions under this section must be made within a "reasonable time." Farrell v. TCI of Northern N.J., 378 N.J. Super. 341, 354 (App. Div. 2005). Had plaintiff offered some circumstance explaining the reason for delay, perhaps relief would have been warranted under this subsection. Without any explanation, however, no basis for relief has been established. Thus, refusal to reinstate cannot be characterized as unjust, oppressive, or inequitable, and no relief is appropriate under the catchall provision either. City of East Orange v. Kynor, 383 N.J. Super. 639, 646 (App. Div.), certif. denied, 188 N.J. 352 (2006).

Affirmed.

 

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6

A-0499-07T3

April 9, 2009