JEAN COMUNALE v. INTERNATIONAL TANK TERMINALS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5873-08T25873-08T2

JEAN COMUNALE, an individual,

Plaintiff-Appellant,

v.

INTERNATIONAL TANK TERMINALS,

d/b/a IMTT,

Defendant-Respondent,

and

BREAKWATER MARINE,

Defendant.

__________________________________

Submitted May 18, 2010 - Decided June 21, 2010

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, Docket No. L-8107-05.

Lombardi & Lombardi, P.A., attorneys for appellant

(Nicole M. Lombardi, on the brief).

Bennett, Giuliano, McDonnell & Perrone, LLP, attorneys

for respondent (Joseph J. Perrone and Matthew J.

Cowan, on the brief).

PER CURIAM

Plaintiff Jean Comunale appeals from June 17, 2009 orders of the Law Division denying her motion to vacate a June 3, 2006 order of dismissal for lack of prosecution and dismissing her complaint against defendant International Tank Terminals d/b/a IMTT (IMTT or defendant) with prejudice. We affirm.

In a complaint filed on November 10, 2005, plaintiff, an employee of the Department of Homeland Security, Customs and Border Protection, alleged she was injured on November 13, 2003, in a slip and fall while working at defendant's Bayonne terminal. She claimed that while exiting a ship, the gangway shifted and disconnected, causing her to fall and injure her neck, shoulder, and back. Plaintiff retained the law firm of Lombardi & Lombardi, P.A., to represent her with respect to her rights as a federal employee under the Federal Employees Compensation Act, and as to her third-party liability action against the owners and operators of the terminal, vessel, and ramp.

Although filed on the even of the expiration of the applicable two-year statute of limitations, N.J.S.A. 2A:14-2, plaintiff's complaint was never served upon defendant. R.

4:4-4. Consequently, plaintiff's complaint was dismissed on June 3, 2006, for lack of prosecution. It is undisputed that the lack of service was not plaintiff's fault, but rather solely attributable to the attorney at the law firm assigned to plaintiff's file. Nevertheless, the law firm did not learn that plaintiff's complaint was dismissed until March 2009, even though indications of the attorney's various lapses in other cases became evident in September 2008. In any event, shortly after discovering the status of plaintiff's case, on April 20, 2009, the law firm moved to vacate the dismissal and reinstate plaintiff's complaint to the active trial list.

In support of her motion, plaintiff argued that she was the victim of legal malpractice and that her complaint should be restored in the interest of justice. In opposition, defendant claimed that to do so would be severely prejudicial and submitted an affidavit from its director of insurance risk attesting to the fact that the passage of almost six years resulted in the destruction of all documents that defendant would have used to locate witnesses and ascertain facts necessary to further its investigation and defend against plaintiff's claim. In denying relief, the motion judge reasoned:

(1) the delay in this matter is almost 6 years. Complaint filed but never served. Dismissed for lack of prosecution [on] June 3, 2006[;] (2) Attorney malpractice appears to be the sole reason for dismissal[;] (3) The litigant is blameless but[;] (4) the prejudice to the defendant is obvious since this motion to restore is the 1st notice of the incident.

On appeal, plaintiff contends that the court abused its discretion in denying plaintiff's motion to reinstate her complaint. We disagree.

A trial court has broad discretion under Rule 4:50-1(f) to reopen a judgment or relieve a party from the operation of an order "where such relief is necessary to achieve a fair and just result." Manning Engineering, Inc. v. Hudson County Park Comm'n, 74 N.J. 113, 122 (1977). However, "that relief may be granted only where the court is presented with a reason not included among any of the reasons subject to the one-year limitation, including "newly discovered evidence." Id. at 123; see Doyle v. Chase Manhattan Bank, 80 N.J. Super. 105, 125 (App. Div.), certif. denied, 40 N.J. 508 (1963). Indeed, the very essence of subsection (f) "is its ability to afford relief in exceptional situations." Hodgson v. Applegate, 31 N.J. 29, 41 (1959). Although no categorization can be made of the situations which would warrant redress under subsection (f), Court Invest. Co. v. Perillo, 48 N.J. 334, 341 (1966), because subsection (f) "provides for extraordinary relief[,] [it] may be invoked only upon a showing of exceptional circumstances." Baumann v. Marinaro, 95 N.J. 380, 393 (1984).

Here, the June 3, 2006 order of dismissal, from which relief is now sought, was predicated on plaintiff's failure to serve the summons and complaint upon defendant, notice of which defendant never received until plaintiff's motion to restore was filed on May 6, 2009. R. 4:4-1; R. 4:4-4; R. 4:37-2(a). The guiding principles that a trial court should follow when a plaintiff fails to comply with court rules and requests that they be relaxed include: "(1) the extent of the delay, (2) the underlying reason or cause, (3) the fault or blamelessness of the litigant, and (4) the prejudice that would accrue to the other party." Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 195 (App. Div. 1985). Applying these criteria here, the record clearly discloses that the delay in seeking to reinstate the complaint was substantial. While plaintiff's present counsel took prompt action to attempt to restore the case to the trial list once the previous counsel's lapses were discovered, nonetheless almost three years had passed since the entry of the dismissal order and five-and-one-half years since the occurrence of the underlying incident.

Granted, the record is equally plain that plaintiff herself was faultless. She was entitled to believe that her attorney was properly representing her and pursuing her interests, and had no reason to suspect he was derelict in performing his professional responsibilities. See Jansson, supra, 198 N.J. Super. at 195-96. As such, the fault of plaintiff's errant attorney should not be visited upon the client absent demonstrable prejudice to the other party. Id. at 197. Here, however, as the motion judge found, defendant would be severely prejudiced by reinstatement of plaintiff's complaint. The complaint was filed shortly before the two-year statute of limitations had run and defendant never even learned of it until May 6, 2009 when plaintiff filed her motion to restore. According to the uncontradicted proofs, there was no record of any incident report ever filed by plaintiff and defendant had disposed of any records or documents that may have shed light on the occurrence or helped defend itself against plaintiff's cause of action. That the failure to ever serve defendant with a summons and complaint prejudiced defendant's substantial rights is evident from the uncontroverted facts of record.

We are convinced, therefore, that the court properly applied the relevant legal principles and its findings are adequately supported by the record. The decision not to relax the requirements of Rules 4:4-1 and 4:4-4 and finding no exceptional circumstances to warrant the extraordinary relief requested was not an abuse of the trial court's broad discretion in this matter.

 
Affirmed.

In the latter action, plaintiff also sued Breakwater Marine, against whom plaintiff's complaint was also dismissed with prejudice, but who is not a party to this appeal.

(continued)

(continued)

7

A-5873-08T2