LINA MARIA GRAJALES v. BJ POWER, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LINA MARIA GRAJALES,

Plaintiff-Appellant,

v.

BJ POWER, LLC,

Defendant-Respondent,

and

JASPI TRANSPORT, INC. and

SPARTA INSURANCE COMPANY,

Defendants.

________________________________

February 10, 2014

Before Judges Fuentes, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2493-11.

Michael C. Kazer, attorney for appellant.

Wasserstrum & Fabiano, PC, attorneys for respondent (Bennett Wasserstrum, of counsel and on the brief).

PER CURIAM

Plaintiff Lina Grajales appeals from an order entered by the Law Division on November 16, 2012, denying her motion for reinstatement of her complaint pursuant to Rule 1:13-7(a). We affirm.

Plaintiff claims that she sustained injuries on May 7, 2009, after she fell on the exterior staircase of a commercial building. On May 9, 2011, two days after the statute of limitations for personal injury actions1 expired, plaintiff filed a complaint naming BJ Power, L.L.C., the owner of the building, as a defendant. The complaint also named Jaspi Transport, Inc., a lessee of the building, and Sparta Insurance Company, which allegedly provided insurance to BJ Power, as defendants.

Plaintiff did not serve BJ Power with a summons and complaint until June 29, 2011. She did not file an affidavit of service with the court until September 15, 2011. Plaintiff never served either Jaspi Transport, Inc. or Sparta Insurance Company. BJ Power did not file an answer to the complaint.

On February 3, 2012, the court dismissed the complaint "for failure to prosecute pursuant to [Rule] 1:13-7[.]" Two days earlier, plaintiff had mailed a motion to the court seeking permission "to enter default out of time" on BJ Power. On February 17, 2012, the court denied this motion because the matter had already been dismissed.

Eight months later, plaintiff filed a motion to vacate the dismissal and reinstate her complaint. On November 16, 2012, the court found that plaintiff had not demonstrated exceptional circumstances and denied the motion to reinstate the complaint.

"Our review of an order denying reinstatement of a complaint dismissed for lack of prosecution proceeds under an abuse of discretion standard." Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 382 (App. Div. 2011). Rule 1:13-7(a) provides for reinstatement of a dismissed complaint:

After dismissal, reinstatement of an action against a single defendant may be permitted on submission of a consent order vacating the dismissal and allowing the dismissed defendant to file an answer, provided the proposed consent order is accompanied by the answer for filing, a case information statement, and the requisite fee. If 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. In multi-defendant actions in which at least one defendant has been properly served, the consent order shall be submitted within 60 days of the order of dismissal, and if not so submitted, a motion for reinstatement shall be required. The motion shall be granted on good cause shown if filed within 90 days of the order of dismissal, and thereafter shall be granted only on a showing of exceptional circumstances.

This is a multi-defendant case. Therefore, because reinstatement was sought beyond ninety days of the order of dismissal, the exceptional circumstances test applies. Baskett, supra, 422 N.J. Super. at 384 (citing R. 1:13-7(a)). Against this standard, we see no abuse of discretion.

Although plaintiff asserts she was not aware that her complaint was dismissed on February 3, 2012, she concedes that she received the court's February 17, 2012 order that confirmed the dismissal. Yet, she did not take any action to reinstate the complaint for eight months. Plaintiff never adequately explained why she did not act to seek reinstatement in a timely manner. In addition, the statute of limitations had already expired by the time plaintiff filed her complaint on May 9, 2011. Under these circumstances, we discern no basis to disturb the court's finding that plaintiff failed to demonstrate exceptional circumstances supporting the reinstatement of her complaint.

1 N.J.S.A. 2A:14-2a.