DANIEL EDEBIRI OMOKARO v. OCS SECURITY COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02138-12T2

DANIEL EDEBIRI OMOKARO,

Petitioner-Appellant,

v.

OCS SECURITY COMPANY,

Respondent-Respondent.

________________________________

March 21, 2014

Submitted March 4, 2014 Decided

Before Judges Fisher, Espinosa and O'Connor.

On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Docket No. 2005-16086.

Daniel Edebiri Omokaro, appellant pro se.

Ann DeBellis, attorney for respondent (Ms. DeBellis, of counsel; David P. Kendall, on the brief).

PER CURIAM

On March 28, 2011, the Workers' Compensation Court granted respondent OCS Security Company's motion to dismiss petitioner Daniel Edebiri Omokaro's claim petition for lack of prosecution. On August 1, 2012, over a year later, petitioner moved to restore the matter to the active trial list. On December 3, 2012, a judge of compensation dismissed the petition, finding the motion untimely under N.J.S.A. 34:15-54, which mandates that, to obtain reinstatement, a petitioner must move for relief within one year.

Petitioner raises three points on appeal. He claims the judge erred for failing to find: (1) the late filing of the motion for reinstatement was the product of "excusable neglect" under Rule 4:50-1(a); (2) the late filing of the motion was due to "exceptional circumstances" under Rule 4:50-1(f); and (3) the notice of motion to dismiss for lack of prosecution was defective, rendering the March 28, 2012 order dismissing the petition void.

We affirm.

On April 16, 2005, petitioner was injured while employed as a security guard by respondent. Specifically, the driver of a truck owned by FedEx struck the security booth in which petitioner was stationed, causing him to sustain injuries to his head, neck and right eye. Petitioner filed a civil lawsuit against FedEx, which subsequently settled. Petitioner also filed a claim petition against respondent in the Division of Workers' Compensation, on August 25, 2005, seeking benefits.

On or about August 11, 2010, respondent filed a notice of motion to dismiss the claim petition for lack of prosecution. A copy of the motion was served upon petitioner's counsel on August 16, 2010. The motion was adjourned several times but was ultimately heard and decided on March 28, 2011. Petitioner did not file any opposition.

During oral argument on the motion to dismiss, the judge noted petitioner's attorney had filed a motion to be relieved as counsel; however, as no action had been taken on the motion to be relieved, the court regarded petitioner's counsel as the attorney of record.1 Satisfied petitioner had been properly served, through counsel, with the motion to dismiss for lack of prosecution and that it was unopposed, the court dismissed the claim petition.

On August 1, 2012, sixteen months later, petitioner filed a motion to restore his claim petition through new counsel. In a certification filed in support of his motion, petitioner represented that, on August 9, 2010, his former attorney "resigned" from the case, and "even though I sought his counsel to restore my case, he refused to do so." Petitioner further claimed he was "unable to find a new attorney to restore the case until recently, when [his second attorney] agreed to represent me in this matter."

During oral argument on petitioner's motion to restore the claim petition, the court observed N.J.S.A. 34:15-54 precluded the restoration of a petition that has been dismissed for lack of prosecution for over one year. The court rejected petitioner's argument there were grounds under Rule 4:50-1(a), specifically excusable neglect, to overcome the one-year requirement for filing a motion for reinstatement. Petitioner had argued there was excusable neglect because neither he nor his former attorney was "dilatory in moving this case forward." Petitioner's counsel also argued, contrary to his own client's certification, that petitioner was ignorant of the fact his case had been dismissed.

On the issue of excusable neglect, petitioner does not assert the same arguments on appeal as those raised before the compensation judge. He now claims there was excusable neglect because his previous counsel refused to turn over his file in a "timely manner," and that the court failed to "effect" a change in petitioner's mailing address. Petitioner does not say when he received his file from his attorney; more important, he does not articulate how the aforementioned actions impeded him from timely filing a motion to restore his claim petition.

We find no merit in the claim that the late filing of the motion to restore was attributable to excusable neglect under Rule 4:50-1(a). First, the arguments petitioner advances on appeal were not asserted before the compensation judge. It is well-settled that reviewing courts "will decline to consider questions or issues not properly presented [below] . . . when [the] opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the [proceeding] or concern great matters of public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).

Second, the record demonstrates that, at some point in time not specified by petitioner, he became aware his matter had been dismissed. He admitted imploring former counsel, without success, to take action to reinstate his case. He then searched for and finally found an attorney to file a motion to reinstate his petition, albeit beyond the one-year time bar. Clearly, he was aware of his predicament.

The record is devoid, however, of evidence that would enable us to conclude the petitioner's neglect was excusable. Neglect may be excused when "attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 335 (1993) (citing Baumann v. Marinaro, 95 N.J. 380, 394 (1984)). Here, petitioner was aware of the dismissal of his action and sought to find counsel to restore his matter. What he did not elaborate upon were the efforts he made to find counsel before the time to file a motion to restore under N.J.S.A. 34:15-54 expired, depriving us of any basis to evaluate, let alone conclude, there was excusable neglect in his failing to file a motion to restore by March 28, 2012.

Petitioner argues he is also entitled to relief under Rule 4:50-1(f). Relief under this provision of the Rule requires a showing of "exceptional circumstances." State Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 438 (App. Div.), certif. denied, 205 N.J. 14 (2010) (citing Baumann, supra, 95 N.J. at 393); Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 122 (1977). Petitioner does not specify how the circumstances were exceptional. He does claim the facts are analogous to those in Beese v. First Nat'l Stores, 52 N.J. 196 (1968), a case in which our Supreme Court recognized the one-year time bar imposed by N.J.S.A. 34:15-54 may be waived upon the grounds set forth in Rule 4:50-1. In Breese, the petitioner suffered from paranoid schizophrenia, which disabled her from understanding her claim petition had been dismissed. 52 N.J. at 198. The Court found that under those circumstances, "the equities . . . are sufficiently strong to call for reopening of the dismissal, despite the fact that a year and a half elapsed between the dismissal and the motion for reopening." Id. at 200. The facts in Breese are hardly analogous to those in the matter sub judice.

Finally, petitioner argues respondent's notice of motion to dismiss the claim petition for lack of prosecution was defective because petitioner was not advised, as required by N.J.S.A. 34:15-54, that unless he moved for a hearing within thirty days of being served with the motion, the claim would be considered abandoned and the petition dismissed. Our examination of respondent's notice of motion reveals respondent fully complied with the mandates of the statute. Petitioner was appropriately advised of the time within which he had to move for a hearing before his petition would be dismissed.

Affirmed.

1The record indicates that petitioner's attorney filed a motion to be relieved of counsel in August 2010. The record does not reflect the outcome of the motion.