CAROLYN MCKINNON-POWELL v. CITY OF NEWARK

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3893-09T3

CAROLYN MCKINNON-POWELL,

Plaintiff-Respondent,

v.

CITY OF NEWARK, 300 BROADWAY CO.,

FLEET FUNDING, JOHN DOES 1-4 (said

names being fictitious), and

ABC CORP. 1-4 (said names being

fictitious and unknown),

Defendants,

and

NEWARK HOUSING AUTHORITY,

Defendant-Appellant.

____________________________________________

October 7, 2010

 

Submitted September 22, 2010 - Decided

 

Before Judges Cuff and Fisher.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2187-08.

 

Buttafuoco, Arce & Price, LLC, attorneys for appellant (James G. Serritella, on the brief).

 

Lord & Kobrin, attorneys for respondent (Craig J. Kobrin, on the brief).

 

PER CURIAM

We granted leave to appeal in this matter to consider whether the trial judge erred in finding an amended complaint, which added Newark Housing Authority (NHA) as a defendant more than two years after the accrual of plaintiff s personal injury claim, related back to the date of the filing of the original complaint. We conclude the amendment was barred by the statute of limitations and should have been dismissed because plaintiff knew or should have known -- within the limitations period -- that NHA was the owner of the property in question as demonstrated not only by plaintiff s timely service on NHA of a notice of claim but also by information provided by NHA to plaintiff prior to the expiration of the limitations period. Accordingly, we reverse.

The circumstances relevant to our disposition of this issue are not in dispute. Claiming she sustained personal injuries upon falling on property located at 301 Broadway in the City of Newark (Newark) on January 21, 2007, plaintiff Carolyn McKinnon-Powell, through her counsel, served a notice of claim on NHA and others on February 13, 2007.

Plaintiff filed a complaint on March 12, 2008. She named as defendants only Newark and fictitious parties she described in part as any . . . individuals, corporations and/or [sic] other entities whose identities are presently unknown to the plaintiff. In early 2009, Judge Alfonse J. Cifelli granted Newark s motion to dismiss based on evidence that Newark did not own the property in question. At approximately the same time, Judge Cifelli granted plaintiff s motion for leave to add 300 Broadway Company and Fleet Funding as defendants in light of evidence received from the tax assessor. On July 31, 2009 -- approximately two years and six months after the accident in question -- Judge Cifelli granted plaintiff s motion for leave to add NHA as a defendant; that amended complaint, which alleged NHA was the owner of the property, was filed on August 17, 2009, but not served on NHA until October 29, 2009. NHA moved to dismiss a few weeks later, relying on the undisputed fact that the amended complaint was filed after the expiration of the two-year limitations period contained in N.J.S.A. 59:8-8.

A different judge denied NHA s motion to dismiss, finding no prejudice to NHA because it had received a notice of claim within ninety days of the accident. After its motion for reconsideration was denied, NHA successfully moved for leave to appeal.

In examining the orders under review, we first observe that the focus in the trial court was on the application of Rule 4:26-4, the fictitious party rule, and whether the late pleading could relate back to the date the original complaint was filed. NHA argued that Rule 4:26-4 could not be utilized because plaintiff actually knew of NHA s identity as a potential owner of the property before the limitations period expired as demonstrated by, among other things, her service of a notice of claim on NHA three weeks after the accident. In response, plaintiff asserted that she was not certain of the owner s identity, as revealed by her service of other notices of claim after the accident, and pursued numerous avenues in her investigation.1 On a date not provided, she asked the person she was visiting when injured for the name of the landlord but the tenant was not forthcoming. Plaintiff also made inquiries of Newark s tax assessor, who, in January 2009, identified 300 Broadway Company and Fleet Funding as the taxpayers on that property. According to plaintiff, the identity of the property owner remained uncertain until Newark asserted, in moving for dismissal, that NHA owned the property. Plaintiff argued she then diligently sought an amendment naming NHA as a defendant and, as a result, the amended complaint should relate back to the filing date of the original complaint. Plaintiff also asserted NHA could not have been surprised or prejudiced at that late date because it had been served with a notice of claim and because it had participated in discovery prior to its joinder. The judge agreed with this analysis and denied the motion to dismiss.

Once a complaint is timely filed, amendments against previously unknown wrongdoers may be permitted after the expiration of the limitations period. Rule 4:26-4 declares that if the defendant s true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification ; the Rule further requires that the plaintiff shall on motion, prior to judgment, amend the complaint to state defendant s true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained. Our Supreme Court has held that Rule 4:26-4 should be construed to balance the defendant s interest in repose with the plaintiff s interest in a just determination of the claim. Viviano v. CBS, Inc., 101 N.J. 538, 547 (1986). In other words, the need to submit claims promptly to judicial disposition must be tempered by the policy favoring the resolution of claims on their merits. Ibid.

As a result, a court s authority to permit late amendments substituting fictitious defendants with their true identities is not without limitation. The Rule itself declares that it may be used only when the plaintiff does not know or have reason to know the identity of a potentially culpable party. Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973); DiMura v. Knapik, 277 N.J. Super. 156, 162 (App. Div. 1994); Cardona v. Data Sys. Computer Ctr., 261 N.J. Super. 232, 234-35 (App. Div. 1992). Also, the plaintiff who seeks to rely on the Rule must not only diligently seek the fictitious defendant s true identity, but must also move to amend promptly upon discovery. Johnston v. Muhlenberg Reg l Med. Ctr., 326 N.J. Super. 203, 208 (App. Div. 1999).

Arguing in the trial court that Rule 4:26-4 required a ruling in her favor, plaintiff claimed she did not know or have reason to know NHA was the property owner until Newark moved for dismissal in early 2009. In response, NHA argued plaintiff s service of a notice of claim on it approximately three weeks after the accident demonstrated plaintiff had reason to believe NHA was the owner. Our decision in Otchy v. City of Elizabeth Bd. of Educ., 325 N.J. Super. 98 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), is instructive.

In Otchy, the plaintiffs served pre-suit notices of claim with both the City of Elizabeth and the Elizabeth Board of Education (Board), but later filed a complaint naming only the City and various fictitious defendants. Id. at 103. The plaintiffs explained they did not name the Board as a defendant in the original complaint because they believed it was not a separate legal entity but rather part of the City. Ibid. The Board was ultimately determined to be a separate legal entity and the trial court denied the plaintiffs motion to amend their complaint after the limitations period had expired, reasoning that the plaintiffs were aware of the Board s identity as a possible responsible party before they filed their complaint, as evidenced by the earlier service of a notice of claim. Id. at 110.

That is precisely what occurred here. Notwithstanding, plaintiff asserted in the trial court that unlike the plaintiffs in Otchy, who were aware the Board was the owner but unaware it was a separate entity, he was uncertain of the identity of the true owner. Although, like Otchy, plaintiff sent a notice of claim to NHA, plaintiff s counsel alleged that he also sent notices of claim to all potential public owners and that the service of a notice of claim should not be viewed as dispositive of the state of a plaintiff s knowledge. We find this factual distinction to be largely irrelevant.

Considering the Legislature s forceful declaration that claims against public entities "shall be forever barred" if not commenced within two years of the accrual of the action, N.J.S.A. 59:8-8, it is enough in such circumstances that a plaintiff have a reasonable suspicion of a public entity s culpability; plaintiff was not entitled to wait until the conclusion of a listless investigation to obtain certainty as to ownership. See, e.g., Mears v. Sandoz Pharm., Inc., 300 N.J. Super. 622, 629-30 (App. Div. 1997). In accordance with and in adhering to our decision in Otchy, we conclude that the service of a notice of claim on NHA within three weeks of the date of the accident demonstrates that plaintiff had sufficient knowledge of NHA s potential ownership as to preclude her reliance on Rule 4:26-4.

Even if we were to agree Otchy is distinguishable and plaintiff s service of a timely notice of claim was alone insufficient to demonstrate plaintiff s knowledge of the recipient s culpability, the fact that NHA admitted its ownership of the property in answers to interrogatories served on plaintiff approximately six months before the limitations period expired dispels all doubt about what plaintiff knew or should have known about NHA as the property owner. On July 3, 2008, NHA provided to plaintiff the following answer to an interrogatory:

[Q.] If the accident or occurrence took place on or about any particular premises, area or location, or involved the use or presence of any object, thing, vehicle, equipment or property, state the name and address of the owner thereof.

 

[A.] Newark Housing Authority, 500 Broad Street, Newark, New Jersey 07108-1639.

 

Notwithstanding the lack of ambiguity in that response, plaintiff was dilatory in acting upon it. Indeed, plaintiff seems to have completely ignored this answer to interrogatory, and failed to move to add NHA as a defendant until nearly one year after receipt of NHA s answers to interrogatories.2

Plaintiff s lassitude in determining the identity of the owner hardly meets the diligence requirement of Rule 4:26-4. A plaintiff must not only investigate the true facts in seeking the identity of fictitious defendants named in a complaint but must also diligently move to amend the complaint in accordance with the information discovered. Matynska v. Fried, 175 N.J. 51, 53-54 (2002); Farrell, supra, 62 N.J. at 115. In this case, plaintiff s obligation to expeditiously move to add NHA as a defendant was triggered no later than July 2008, when her counsel received NHA s answers to interrogatories; the ambiguous information received many months later from Newark s tax assessor as to the identities of the entities paying taxes on the property did not absolve plaintiff of that obligation.3

In her decision denying NHA s motion to dismiss, the judge chiefly relied on her belief that no prejudice inured to NHA as a result of the late amendment. Although the existence of prejudice is not the sole determining factor, and is irrelevant when a plaintiff fails to act with diligence in discovering the identity of the true defendant, we disagree that the record supports a finding that NHA was not prejudiced by the continued maintenance of this action against it. Certainly NHA knew when it received the notice of claim three weeks after the accident that it might be the target of a lawsuit. Furthermore, NHA knew there was a pending action upon being served with interrogatories in this action. NHA may have even contemplated its likely joinder in the immediate future when it conceded ownership of the property in its answers to interrogatories. Nonetheless, once plaintiff failed to take any action against NHA for nearly one year after the concession of ownership and until approximately six months after the expiration of the two-year limitation period, NHA had a right to assume no claim would or could ever be filed against it. We conclude such a right to repose may not be overcome in these circumstances, and the legislative mandate regarding the institution of claims against public entities should not be expanded by way of the unduly generous interpretation of Rule 4:26-4 that plaintiff would have us apply.

T

he orders under review are reversed and the matter remanded to the trial court for the entry of an order dismissing with prejudice the amended complaint insofar as it seeks relief from NHA.

1In her motion to amend the complaint, plaintiff s counsel certified only that [p]ursuant to recent and newly provided information, it is believed that the correct owners [sic] of the premises in question is [NHA] ; no details were then provided.

2As noted earlier, in moving to amend the complaint to name NHA as a defendant, plaintiff asserted that the motion was based upon newly provided information. That unilluminating statement did not likely refer to the answers to interrogatories because, by the time of the motion to amend, plaintiff had NHA s answers to interrogatories in hand for approximately six months. We assume the newly provided information was either the tax assessor s information or Newark s assertion in its motion to dismiss that NHA was the owner.

3Although not urged by plaintiff either in the trial court or on appeal, for the sake of completeness we observe that Rule 4:9-3, which also permits the relation back of an amendment to the original filing date, has no relevance here. Rule 4:9-3 applies when a pleader misidentifies a known party or when the plaintiff did not contemplate the need for the joinder of other parties, Viviano, supra, 101 N.J. at 552, not in the present circumstances.