MARIA PAULO CARDOSO v. DENNIS SHEEHY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2696-09T3

MARIA PAULO CARDOSO AS

ADMINISTRATRIX AD PROSEQUENDUM

OF THE ESTATE OF MANUEL CARDOSO,

DECEASED,

Plaintiff-Appellant,

v.

DENNIS SHEEHY and CONRAIL,

Defendants-Respondents,

and

ROBERT HANCOCK, ARTHUR SMALLS,

NEW JERSEY RE-INSURANCE COMPANY and CSX,

Defendants.

___________________________________

November 22, 2010

Argued October 5, 2010 - Decided

Before Judges Wefing and Koblitz.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. L-589-03.

Anthony F. Malanga, Jr., argued the cause for

appellant (Gaccione, Pomaco & Malanga,

attorneys; Mr. Malanga, of counsel and

on the brief; Diana Nikolowski, on the brief).

John W. Gregorek argued the cause for respondents

(Ruprecht, Hart & Weeks, attorneys; Thomas C. Hart,

of counsel and on the brief; Mr. Gregorek, on

the brief).

PER CURIAM

Plaintiff appeals from a trial court order granting defendants' motion for reconsideration and dismissing her complaint with prejudice. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On January 21, 2003, plaintiff, acting pro se, filed an eight-count complaint seeking damages for the death of her husband on January 20, 2001, in a collision in Port Newark between the motor vehicle he was driving and a train.1 Plaintiff did not arrange for service of the complaint, and on August 9, 2003, the complaint was dismissed for lack of prosecution pursuant to Rule 1:13-7. In September 2003, plaintiff retained her present counsel, who filed a substitution of attorney on September 29, 2003. Plaintiff's counsel also arranged for service of the complaint on defendants. In December 2003, the attorney for defendants Sheehy and Conrail submitted an answer to the clerk's office for filing and also sent a copy to plaintiff's counsel. The clerk's office, however, returned the answer to defendants' attorney on December 24, without having filed it, noting that the complaint had been dismissed on August 9, 2003, pursuant to Rule 1:13-7. On that same day, December 24, plaintiff's attorney sent interrogatories and a request for documents to defendants' attorney. Upon being notified that the matter had been dismissed some months earlier, defendants' attorney took no further steps with respect to this matter.

Unfortunately, neither did plaintiff's attorney. In September 2009, six years after the matter had been dismissed for lack of prosecution, plaintiff's attorney filed a motion to restore the matter to the trial calendar. In support of that motion, plaintiff's counsel submitted a certification which recited this chronology and noted that he had never been advised by the clerk's office that the matter had been dismissed pursuant to Rule 1:13-7. The certification did not provide any explanation for the six years in which no actions were taken with respect to the prosecution of plaintiff's claims. In that six-year period, for example, plaintiff's counsel made no inquiry of defendants' attorney with respect to outstanding discovery and sought no relief from the trial court with respect to that discovery. Nor did that certification provide any explanation for what had impelled plaintiff's counsel to file a motion at that point to restore this matter to the calendar.

Defendants opposed this motion, but the trial court, after hearing oral argument, concluded the motion should be granted "in the interests of justice," referring to "clerical errors" and a failure to notify counsel when he filed the substitution of attorney that the matter had been dismissed and, further, that defendants had not made a clear showing that they would be prejudiced if the matter were allowed to proceed at that point. Defendants filed a motion for reconsideration. After further oral argument, the trial court granted reconsideration and dismissed plaintiff's complaint with prejudice. This appeal followed.

Dismissals for lack of prosecution are governed by Rule 1:13-7(a). There is a two-step process to such a dismissal. Initially, the court must issue written notice that the matter is subject to dismissal within 60 days unless the required action is taken. Only after those 60 days have elapsed with no action on behalf of the delinquent party is the matter dismissed. Thus plaintiff would have received a notice two months prior to the August 9, 2003, order of dismissal that she needed to attend to service of this complaint.

Rule 1:13-7(a) also sets forth the procedure to restore such dismissed cases to the active calendar. It provides, in pertinent part, that absent consent, a motion to restore "shall be granted on good cause shown if filed within 90 days of the order of dismissal, and thereafter shall be granted only on a showing of exceptional circumstances." Here, of course, not only was the motion to restore not filed within this 90-day window, it was not filed until more than six years had passed.

The trial court initially concurred with plaintiff's contention that clerical errors in accepting the substitution of attorney and proofs of service he filed justified restoration of the complaint. We concur with defendants, however, and the trial court's ultimate conclusion that the filing of these documents did not indicate a clerical error. "[A]n administratively dismissed complaint with a proper summons may be successfully served on a defendant. Once such service is made, the plaintiff may seek restoration . . . ." Stanley v. Great Gorge Country Club, 353 N.J. Super. 475, 485 (Law Div. 2002) (tracing the history of the 2000 amendments to the rule).

Plaintiff has yet to offer any explanation for the delay in seeking to restore this matter. In our judgment, there is no showing of good cause, let alone exceptional circumstances.

The order under review is affirmed.

1 The complaint itself was prepared by an attorney to assist plaintiff, presumably to meet the statute of limitations, but that attorney declined to represent plaintiff in the action.