VINCENZO LINTERNO v. CAROLYN LUTHY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VINCENZO LINTERNO,

Plaintiff-Appellant,

v.

CAROLYN LUTHY,

Defendant-Respondent,

and

DOMINGO ORTIZ JR., NEW JERSEY

MANUFACTURERS INSURANCE

COMPANY,

Defendants.

_______________________________

December 23, 2014

Submitted October 21, 2014 Argued

Before Judges Reisner and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-285-12.

Dario Yacker Suarez & Albert, LLC, attorneys for appellant (Brian E. Eyerman, of counsel and on the brief).

Law Offices of Cindy L. Thompson, attorneys for respondent (Bryan T. Kurtzberg, on the brief).

PER CURIAM

Plaintiff Vincenzo Linterno (Linterno) appeals from the order of the court granting defendant Carolyn Luthy's (Luthy) motion to dismiss plaintiff's complaint with prejudice, or in the alternative, deny plaintiff's motion to reinstate his complaint. We affirm.

Plaintiff was the owner and operator of a motor vehicle involved in an automobile accident on February 1, 2010. He alleges Luthy made an illegal left turn and struck his vehicle. He also alleges defendant struck the co-defendant, Domingo Ortiz's vehicle. Approximately three months after the accident, plaintiff's counsel sent a letter of representation to Government Employees Insurance Company (GEICO), Luthy's insurance company. Almost two years later, less than one month before the statute of limitations period expired, plaintiff filed a multi-party complaint against his insurance company, New Jersey Manufacturers (NJM), for personal injury protection benefits, and against co-defendants, Carolyn Luthy and Domingo Ortiz Jr., for negligence.

On March 7, 2012, two months after filing the complaint, counsel for plaintiff sent another letter to Luthy's insurance company. This letter did not include a copy of the complaint, and in fact, did not refer to the complaint. The letter stated that plaintiff would like to resolve the case without unnecessary litigation. Counsel for plaintiff enclosed a copy of the police report and advised GEICO that his client had been transported to the hospital from the accident scene, but that despite the fact that over two years had passed since the accident, he had not yet obtained the hospital records.

Plaintiff's counsel sent a copy of the complaint and a summons to Allstate Subpoena Service (Allstate) for service on co-defendants, Carolyn Luthy and Domingo Ortiz. Domingo Ortiz was served and filed an answer on May 7, 2012. There is no evidence in the record as to whether defendant NJM was ever served.

On June 13, 2012, plaintiff's counsel sent a letter to Allstate requesting the status of service on Luthy. The record does not include any response to this inquiry, or any follow-up by plaintiff's counsel. Plaintiff's counsel alleges in a certification that plaintiff was misled for almost a year by someone at Allstate who stated that they were attempting to locate defendant Luthy, but were not successful in their attempts. In fact, however, the office manager had died and no efforts were being made to serve the defendant.

The record does demonstrate that approximately two months after the letter was sent to Allstate requesting status of service, a court initiated order dated August 3, 2012, was entered, dismissing the complaint against Luthy for failure to prosecute the claim under Rule 1:13-7. At that time, counsel for plaintiff took no action to obtain relief from the court. There was no application filed for over a year to allow substituted service on Luthy's carrier, and there was no evidence that counsel made any efforts to obtain a good address for her other than relying on Allstate until May of 2013.

The discovery period in the case against Ortiz, the remaining defendant, expired, and the matter was scheduled for arbitration. Plaintiff attempted to serve Luthy on May 30, 2013, through a new process server, but service was unsuccessful. Arbitration was held on June 21, 2013, but only Ortiz appeared. The case was dismissed with prejudice against Ortiz on July 23, 2013, when no request for a de novo review of the arbitration award was filed.

Finally, on August 26, 2013, plaintiff made a motion to reinstate the complaint against Luthy, and to permit substituted service on Luthy's insurance company. However, the motion erroneously misnamed NJM, which was plaintiff's PIP carrier, instead of GEICO, which insured Luthy. GEICO filed a cross motion requesting plaintiff's complaint as to Luthy be dismissed with prejudice, or in the alternative, that plaintiff's motion to reinstate the complaint be denied. This motion was granted on October 1, 2013, and is the subject of this appeal.

Our review of an order denying reinstatement of a complaint dismissed for lack of prosecution is decided under an abuse of discretion standard. Baskett v. Kwokleung Cheung, 422 N.J.Super. 377, 382 (App. Div. 2011). Under Rule 1:13-7(a), if reinstatement is sought beyond ninety days after the date of dismissal in a multi-party case, the "exceptional circumstances" test applies. Id. at 384. We have previously concluded that lack of proper diligence by counsel does not create exceptional circumstances. Rivers v. LSC Partnership, 378 N.J. Super. 68, 78-82 (App. Div. 2005); see also Hartsfield v. Fantini, 149 N.J. 611, 618 (1997).

Here, the trial court denied the application finding that exceptional circumstances which would justify reinstating the complaint over a year after it was dismissed were not demonstrated. Counsel's attempt to lay the blame on the process server does not justify the delay, since diligent counsel would have filed the motion for substituted service and reinstatement much earlier. Rule 1:13-7(a) is intended to prevent delay in multi-party litigation where, as here, the lawsuit has proceeded against one party (Ortiz) but not against a dismissed party (Luthy). Hence, the Rule is fully applicable here, and there are no countervailing equitable reasons to withhold its application. We cannot find that the trial court abused its discretion.

We affirm.