L.V. and J.V. v. MUHLENBERG REGIONAL MEDICAL CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4924-08T34924-08T3

L.V. and J.V.,

Plaintiffs-Appellants,

v.

MUHLENBERG REGIONAL MEDICAL

CENTER, a business,

Defendant-Respondent,

and

MICHAEL KRIYAS,

Defendant.

_________________________________

 

Argued December 16, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7890-07.

Scott A. Telson argued the cause for the appellants (Lombardi & Lombardi, P.A., attorneys; Mr. Telson, on the brief).

Maxwell L. Billek argued the cause for respondent (Billek & Yesalonis, P.C., attorneys; Mr. Billek, on the brief).

PER CURIAM

Plaintiffs L.V. and J.V. appeal the dismissal of their personal injury action against Muhlenberg Regional Medical Center (Muhlenberg). We reverse and remand to the Law Division for further proceedings consistent with this opinion.

L.V. was a patient at Muhlenberg in September 2005. She alleges that she was sexually assaulted by another patient at the hospital on September 16, 2005. She and her husband retained Lombardi & Lombardi, P.A., to represent her in a personal injury action against Muhlenberg and the other patient.

An attorney who was then a partner at the Lombardi firm filed a complaint on September 14, 2007, just prior to the running of the statute of limitations. The attorney never served the complaint, which was administratively dismissed for failure to prosecute on March 29, 2008.

The Lombardi firm discovered that the attorney had not properly handled numerous cases entrusted to his care, including this one. In March 2009, another attorney at Lombardi filed a motion to vacate the dismissal and restore the complaint. The motion was supported by a certification explaining why the action had not been prosecuted. A copy of the motion was served on Muhlenberg, but was apparently not forwarded to counsel in time for a response to be filed prior to the return date. The motion was granted and the action restored on April 6, 2009.

Muhlenberg filed a motion for reconsideration on April 27, 2009, arguing that service of the complaint after the running of the statute of limitation rendered the action untimely and that restoration of the complaint would prejudice the hospital because of the passage of time and because Muhlenberg had closed. Plaintiffs opposed the motion. The same motion judge granted the motion and dismissed the complaint with prejudice. As was the case with the earlier motion, there was apparently no opinion or statement of reasons, oral or written. This appeal followed.

Muhlenberg's reliance on Rivera v. Prudential Property and Casualty Insurance Co., 104 N.J. 32 (1986), for the proposition that service of a timely-filed complaint following the running of the statute of limitations renders the complaint untimely, is misplaced. The complaint at issue in Rivera was filed after the statute of limitations had run. Id. at 35-37. Muhlenberg also cites Moschou v. DeRosa, 192 N.J. Super. 463 (App. Div. 1984). In that case, the complaint was timely filed, but served after the running of the statute of limitations. Id. at 464. We reversed the trial court's order denying the defendant's motion to dismiss that complaint for late service, finding prejudice due to the fact that the defendant had destroyed its records with respect to the underlying transaction after the statute had run. Id. at 466-67.

In Rivera v. Atlantic Coast Rehabilitation & Health Care Center, 321 N.J. Super. 340, 346-47 (App. Div. 1999), we noted that

we have uniformly held that even a substantial delay [in service of the complaint]--in some cases a year or more--will not bar the continued prosecution of the action where the failure of timely service was either for good cause or attributable only to counsel's neglect and, in addition, the defendant was not prejudiced thereby in the ability to maintain a defense.

The issue, then, is whether there has been prejudice to Muhlenberg such that the trial court's discretion should have been exercised to deny reinstatement of the complaint based upon attorney neglect.

The order under appeal contains no reference to either a written or oral decision, as required by Rule 1:6-2(f). The motion judge's apparent failure to comply with Rule 1:7-4(a) (requiring findings of fact and conclusions of law) or Rule 2:5-1(b) (requiring that, on appeal, an opinion be filed if no contemporaneous findings and conclusions were made) prevents our consideration of the merits of this appeal. Because we do not have the benefit of findings of fact and conclusions of law from the motion judge, we do not know what law the judge applied or what consideration he gave to the issue of prejudice to Muhlenberg.

Consequently, we reverse the order of dismissal and remand to the trial court for an evidentiary hearing concerning prejudice to Muhlenberg, to be followed by findings of fact and conclusions of law as required by Rule 1:7-4(a). We do not retain jurisdiction.

Reversed and remanded.

 

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A-4924-08T3

January 4, 2010