FRANCIS PRIOR et al. v. JOHN MacEVOY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2915-04T22915-04T2

FRANCIS PRIOR and

KATHLEEN PRIOR,

Plaintiffs-Appellants,

v.

JOHN MacEVOY,

Defendant-Respondent,

and

MARIA S. DeCOSIMO, CAROLYN

MacEVOY, JAMES McDONALD, and

BANNON, RAWDING, McDONALD &

MASCERA, P.A.,

Defendants,

and

CAROLYN MacEVOY,

Defendant/Third-Party

Plaintiff,

v.

WEICHERT REALTORS, INC.,

Third-party Defendant.

 

Submitted: January 25, 2006 - Decided February 28, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Number ESX-L-1808-02.

Michelle Treiber, attorney for appellants.

Durkin & Durkin, attorneys for respondent (M. Murphy Durkin, of counsel; Gregory F. Kotchick, on the brief).

PER CURIAM

Plaintiffs Francis Prior and Kathleen Prior appeal from an order entered in the Law Division on December 17, 2004, denying their application to reinstate their complaint against defendant John MacEvoy. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

On August 9, 1997, plaintiffs contracted to purchase a residential home built by defendant for the sum of $410,000, and closing of title occurred thereafter. On February 15, 2002, plaintiffs filed a complaint against defendant, alleging faulty construction; against Maria S. DeCosimo, the architect, alleging negligent design of the plans for the home; against Carolyn MacEvoy, the realtor who sold plaintiffs the subject property; and against James McDonald and the law firm of Bannon, Rawding, McDonald & Mascera, alleging malpractice in representation of both the plaintiffs and defendant during the transaction.

On April 10, 2002, defendant was served, but never filed an answer to the complaint. On April 25, 2002, Carolyn MacEvoy filed an answer and a third-party complaint against her employer, Weichert Realtors, Inc. On or about May 23, 2002, DeCosimo filed an answer; on or about July 19, 2002, McDonald and his law firm filed an answer.

On October 18, 2002, the complaint against defendant John MacEvoy was dismissed pursuant to R. 1:13-7(a) for failure to prosecute the matter against him. On or about October 28, 2002, plaintiffs filed a request to enter default against said defendant with the Clerk of the Superior Court Court. No action was taken on plaintiffs' request, apparently because the complaint had already been dismissed as to defendant John MacEvoy, and there is no indication that plaintiffs ever followed through to determine whether any action had been taken on their request for entry of default.

Approximately twenty-one months later, on or about July 13, 2004, plaintiffs filed a motion seeking restoration of their complaint against defendant John MacEvoy. That motion was denied by an order entered on September 28, 2004, "for an absence of timely good cause shown to vacate dismissal for lack of prosecution entered on October 19, 2002[,] R. 1:13-7(a)." On November 12, 2004, plaintiffs filed a second motion seeking an order to correct a clerical error in the October 19, 2002 dismissal. On December 17, 2004, the court entered an order denying that motion. Notations on the order indicate it was denied due to

an absence of good cause, no supporting certification for exercise of court discretion to grant restoration of court ordered dismissal entered on 10-19-02 pursuant to R. 4:50-1 et seq. Order of Reconsideration of Order entered on 9-28-04 denied.

 
On appeal, plaintiffs argue that the trial court abused its discretion by denying their motion to reinstate the complaint. After analyzing the record in the light of written arguments advanced by the parties, we conclude that plaintiffs' contention is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated by the motion judge. Given the inordinate delay between the date of dismissal and the application for reinstatement, absent a showing of good cause, we cannot conclude that the motion judge misapplied his discretion in denying plaintiffs' motion.

Affirmed.

(continued)

(continued)

4

A-2915-04T2

February 28, 2006