VICTOR M. TORAL v. MARIA R. DEJESUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VICTOR M. TORAL and

JORGE GUILEOPI,

Plaintiffs-Appellants,

v.

MARIA R. DEJESUS,

Defendant-Respondent.

____________________________________________________

December 9, 2013

Submitted October 1, 2013 Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-6088-10.

Paul Femia, attorney for appellants.

Chasan Leyner & Lamparello, P.C., attorneys for respondent (Jason M. Hyndman, on the brief).

PER CURIAM

Plaintiffs Victor M. Toral and Jorge Guileopi appeal the August 10, 2012 Law Division order denying their motion to amend their motor vehicle negligence complaint to add another party and granting defendant Maria DeJesus' summary judgment motion to dismiss the complaint. Plaintiffs also appeal the September 19, 2012 order denying their motion for reconsideration. For the reasons that follow, we affirm.

The record reveals the following undisputed facts. On December 11, 2008, plaintiffs were passengers in a motor vehicle involved in a collision with a vehicle owned by and registered to defendant. The driver of defendant's vehicle fled the scene before the police arrived. Plaintiffs obtained the information about the ownership and registration of defendant's vehicle through the license plate number.

Alleging injuries from the collision, plaintiffs filed a complaint for damages against defendant, claiming that she was the owner and operator of the vehicle at the time of the accident. Defendant denied these allegations in her answer. Plaintiff included fictitious names in the complaint to preserve claims against unknown tortfeasors.

On July 8, 2011, the complaint was dismissed without prejudice due to plaintiffs' failure to provide answers to discovery. After defendant moved to dismiss the complaint with prejudice in December 2011, plaintiffs filed a motion to reinstate the complaint. On February 17, 2012, the court issued an order reinstating the complaint and setting the discovery end date for April 17, 2012, and the arbitration date for April 26, 2012.

On February 27, 2012, defendant, in answers to interrogatories, stated that her son was driving the vehicle at the time of the accident. After the unsuccessful arbitration, the court set the trial date for September 4, 2012.

On July 2, 2012, defendant filed a motion for summary judgment based on the fact that she was not the driver of the vehicle at the time of the accident. Plaintiff filed a cross-motion seeking leave to amend the complaint to add defendant's son as a defendant.

In granting defendant's motion and denying plaintiffs' motion, the court stated that plaintiffs provided no explanation why they did not obtain the identity of the driver earlier. The court pointed out that earlier service of interrogatories or a deposition of the registered owner would have revealed this information in a timely manner. Moreover, the court found that "[t]he granting of [plaintiffs'] application would unduly delay the resolution of this matter." The court also denied plaintiffs' subsequent motion for reconsideration, again stressing that there was no explanation for the delay in ascertaining the identity of the driver who had fled the scene of the accident. This appeal followed.

On appeal plaintiffs contend that the denial of their request to amend the complaint to include the driver of the vehicle was an abuse of discretion. Accordingly, we examine whether the denial of the request was a reasoned exercise of the court's discretion under the circumstances. Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998); Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994).

The disposition of a motion to amend generally rests with the sound discretion of the court. Fisher, supra, 270 N.J. Super. at 467. Rule 4:9-1 sets forth the considerations guiding a court's review of a motion to amend a pleading. As plaintiffs' motion was filed after discovery had ended and a trial date was set, the amendment of the pleadings should be considered "only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice." R. 4:9-1. Consideration of the application should "be liberally granted and without consideration of the ultimate merits of the amendment." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:9-1 (2014).

We ordinarily will not disturb a trial judge's determination on a motion to amend a pleading, unless it constitutes a "'clear abuse of discretion.'" Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J. Super. 494, 506 (App. Div. 2003) (quoting Salitan v. Magnus, 28 N.J. 20, 26 (1958)). We reverse a trial court's exercise of discretion on such matters "if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). Reasoned discretion requires the trial court to provide "a rational explanation," relying on established principles. Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks and citation omitted).

"It is well-settled that an exercise of [] discretion will be sustained where the trial court refuses to permit new claims and new parties to be added late in the litigation and at a point at which the rights of other parties to a modicum of expedition will be prejudicially affected." Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J. Super. 349, 364 (App. Div. 1989), certif. denied, 121 N.J. 617 (1990); see also Globe Motor Car Co. v. First Fid. Bank, N.A., 291 N.J. Super. 428, 429 (App. Div.) (concluding that trial court did not abuse its discretion in denying motion to amend on eve of trial three years after complaint filed), certif. denied, 147 N.J. 263 (1996); Fisher, supra, 270 N.J. Super. at 467 (holding no abuse of discretion in denying late motion to add new claims and parties).

Considering plaintiffs' motion "'in light of the factual situation existing at the time [the] motion is made,'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (citation omitted), we concur with the trial judge's determination that plaintiffs knew at the outset that the driver of the vehicle had fled the scene and had not yet been identified. Additionally, defendant denied in her answer plaintiffs' allegation that she was the driver of the vehicle on the day of the accident.

We are satisfied that plaintiffs had a fair opportunity to develop their claims in a timely manner. Having carefully reviewed the entire record, we find no basis to conclude that the trial court abused its discretion when denying plaintiffs' belated motion to amend the complaint.

Affirmed.