LEOPOLDO A. CABA, AMADO VASQUEZ and NERIS VASQUEZ v. GERALD J. FERENCZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5348-08T15348-08T1

LEOPOLDO A. CABA, AMADO

VASQUEZ and NERIS VASQUEZ,

Plaintiffs-Appellants,

v.

GERALD J. FERENCZ,

Defendant-Respondent.

________________________________

 

Argued: January 27, 2010 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-8645-05.

John A. Klamo argued the cause for appellant.

Cindy B. Shera argued the cause for respondent (Law Office of Debra A. Hart, attorneys; Ms. Shera, of counsel and on the brief).

PER CURIAM

Plaintiffs Leopoldo Caba, Amado Vasquez and Neris Vasquez appeal from the order of the Law Division entered on April 3, 2009, denying their motion to reinstate their complaint that was administratively dismissed pursuant to Rule l:13-7(a), and from the order of May 28, 2009, denying their motion for reconsideration. After considering plaintiffs' arguments in light of the record and applicable law, we affirm.

The motor vehicle accident that gave rise to plaintiffs' complaint occurred on October 5, 2003. Caba was the driver of a vehicle that was stopped in traffic and was rear ended by defendant Gerald Ferenz; Amado Vasquez was a passenger in
Caba's car. The police report listed a post office box in Allenwood, New Jersey as defendant's address, as well as defendant's insurance information. About three months after the accident, plaintiffs' counsel sent defendant a letter at the listed post office address requesting he inform his insurance company of the accident. Apparently there was no response. There is nothing in the record indicating that any correspondence was sent to defendant's carrier.

On October 4, 2005, on the eve of the statute of limitations, plaintiffs filed a personal injury negligence action against defendant. The complaint was not served on defendant and on April 21, 2006, the case was administratively dismissed without prejudice pursuant to Rule 1:13-7(a).

The case lay dormant for almost three years until December 2008, when plaintiffs' counsel sent a process server a request to serve defendant at a street address in Rockaway, New Jersey and a skip tracer a request to locate defendant's address, neither of which was successful. In February 2009, plaintiffs' counsel sent a request to the Horsham postmaster, erroneously listing defendant's address as Allenwood, PA.

On March l, 2009, plaintiffs filed a motion to reinstate their complaint. Plaintiffs' counsel certified that the "extended delay leading to the case's dismissal resulted from the great difficulty in serving" defendant because the post office box address listed on the police report "cannot be used for service of process on the Defendant." He further certified as to the aforementioned efforts he made beginning in December 2008. According to counsel, his office was "going to initiate a DMV search in further attempt to locate and serve" defendant and if unsuccessful, he was "prepared to move for substitution of service" on Prudential Insurance Company, defendant's carrier, and proceed with the case. He further noted that the case had not been dismissed with prejudice and urged that plaintiffs would suffer "great prejudice" if their case were not reinstated.

At argument on April 3, 2009, plaintiffs' counsel stated that he had sent out and received a response back from DMV confirming that defendant's address was listed as the Allenwood post office box. He emphasized that the delay in service was due to his own neglect, not plaintiffs', and that defendant was not prejudiced as a result.

In response, citing Rivera v. Atlantic Coast Rehabilitation Center, 321 N.J. Super. 340, 346 (App. Div. l999), defense counsel argued that the problem leading to the dismissal was not cured as defendant still had not been served, there was not good cause for the failure to prosecute, and defendant was prejudiced by the delay due to the potential inability to obtain plaintiffs' medical records of prior accidents or admissions due to the general seven year retention period. Defense counsel further asserted that the six year passage of time significantly impaired his ability to obtain an accurate independent medical examination (IME). Judge Meloni denied plaintiffs' motion, memorialized in an order of the same date.

Plaintiffs filed a motion for reconsideration shortly thereafter on the basis of "new evidence," namely, that defendant had been served with the complaint. Plaintiffs' counsel certified that on March l8, 2009, the DMV request was sent. The March 27, 2009 response indicated a current vehicle registration for defendant at the post office address in Allenwood. Therefore, on April 2, 2009, the day before the return date of the motion to reinstate, plaintiffs' counsel first sent a copy of the complaint by certified mail to defendant at that address. Following argument on May 28, 2009, the judge concluded, "the reason I denied this application originally is that there was not good cause shown for the two and a half years delay, and that the defendant had, in fact, asserted prejudice, and it seems to me that due cause still has not been shown for the delay." He memorialized his ruling in an order of that date. This appeal ensued.

On appeal, plaintiffs argue the delay in service is attributable only to counsel's oversight and neglect, not that of plaintiffs, thus urging liberality, and urging that defendant's claims of prejudice are merely speculative. Plaintiffs further argue the court denied the motion to reinstate because the problem leading to dismissal had not been cured and thus "the interest of justice" warranted the court reconsidering and reinstating the complaint after it was informed of the new information, i.e., that service had just been made. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. l996). We are not persuaded by plaintiffs' arguments.

Rule 1:13-7(a), as amended effective September l, 2008, provides in pertinent part that "[i]f the defendant has been properly served but declines to execute a consent order, plaintiff shall move on good cause shown for vacation of the dismissal." We have held that "[g]ood cause is an amorphous term, that is it is difficult of precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the Court Rule being applied." Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007) (citation and quotation marks omitted). This Rule appears to codify the case law that requires service before filing for reinstatement as well as good cause. As we held in Rivera, supra, "reinstatement is ordinarily routinely and freely granted when plaintiff has cured the problem that led to the dismissal even if the application is made many months later." 321 N.J. Super. at 346. In determining whether to reinstate a complaint, the court also considers whether the failure of timely service was for good cause or attributable only to counsel's neglect and, in addition, that the defendant was not prejudiced in its ability to maintain a defense. Id. at 346-47.

Under the new Court Rule, plaintiffs technically had no basis for reinstatement when they filed their initial motion as defendant had not been served, R. 1:13-7(a); in other words, they "failed to cure the problem that led to the dismissal." Rivera, supra, 32l N.J. Super. at 346. However, service on defendant was not the be all and end all entitling plaintiffs to reinstatement on their motion for reconsideration. The court considered the appropriate standard for relief, namely that plaintiffs demonstrate both good cause for the failure to prosecute and that restoration of the case would not prejudice defendant, and concluded that neither had been established. We discern no abuse of discretion by the trial court in its ruling on the motion to reinstate and the reconsideration motion.

Good cause for failure to prosecute implicitly encompasses some notions of due diligence, yet there is no evidence of any action taken by plaintiffs' counsel before suit, in the six months prior to the administrative dismissal, or for two and one-half-years following dismissal of the complaint. Furthermore, the efforts made after that time were clearly inadequate. A DMV check was not made until March 2009, almost three years after dismissal of the complaint. Additionally, plaintiffs' counsel was aware of defendant's insurance carrier as indicated in the police report and, yet, made no attempt to contact the carrier to ascertain defendant's address before he filed suit, nor did he file a motion for substituted service after the litigation was commenced. Plaintiffs' excuse for not serving defendant -- because he only had a post office box address -- also fails because on April 2, 2009, forty-two months after the complaint was filed, plaintiffs ultimately served defendant by certified mail at the same post office address listed on the October 5, 2003 accident report.

As opposed to Ghandi, supra, defense counsel has steadfastly opposed the reinstatement. 390 N.J. Super. at l95. It is also highly likely the defense would have been prejudiced by the substantial delay in service if the complaint had been reinstated in May 2009. Although there was no evidence presented that records had actually been destroyed, as occurred in Moschou v. DeRosa, 192 N.J. Super. 463, 466-67 (App. Div. l984), there was a sound basis for defendant's concern with an inability to obtain all pertinent medical records, including records regarding any pre-existing injury, condition or complaints. Defendant also represented that it would be prejudiced due to an inability to obtain an accurate IME as a result of the six years that elapsed since the accident.

 
Affirmed.

Neris Vasquez asserted a per quod claim.

There is no indication in the record of any efforts by plaintiffs' counsel to attempt to serve the complaint or ascertain a street address for defendant prior to the administrative dismissal.

Plaintiffs' counsel represented at argument on his motion to reinstate that he obtained the Rockaway address through Google; defense counsel claimed defendant's "Googled" street address was on a stated drive in Allenwood.

The prior language of Rule l:13-7(a) was "reinstatement of the action after dismissal may be permitted only on motion for good cause shown."

(continued)

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A-5348-08T1

February 24, 2010