JOSEPH CHATMAN v. BRIAN FENNELLY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0054-06T30054-06T3

JOSEPH CHATMAN,

Plaintiff-Appellant,

v.

BRIAN FENNELLY,

Defendant-Respondent.

_______________________________________________________________

 

Submitted October 17, 2007 - Decided October 29, 2007

Before Judges Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-293-06.

Scott J. Capriglione, attorney for appellant.

Kevin M. Shanahan, attorney for respondent.

PER CURIAM

Plaintiff Joseph Chatman appeals from the July 26, 2006 order that dismissed his complaint for failing to comply with the statute of limitations. We affirm.

Plaintiff was involved in a motor vehicle accident with defendant Brian Fennelly in Ewing Township on January 9, 2004, and claimed injuries as a result. Defendant moved to dismiss the complaint, which was stamped "received and filed" by the Superior Court on January 23, 2006, contending it was barred by the two-year statute of limitation governing any personal injury claim. N.J.S.A. 2A:14-2.

In opposition to the motion, plaintiff's counsel certified that the summons and complaint were mailed to the court on December 23, 2005, some sixteen days before the statutory deadline, and he produced a number of documents in support of that claim. These included: 1) his cover letter to the clerk enclosing the pleadings; and 2) his firm's checks to the Sheriff and the clerk, all dated December 23, 2005. Plaintiff's opposition also included a certification from Kristin Kralle, an employee of plaintiff's counsel who certified

On December 23, 2005, under the direction of [plaintiff's counsel] [she] placed in the United States Mail an original and three copies of a Summons and Complaint on behalf of the Plaintiff . . . .

Plaintiff argued that he had substantially complied with the filing requirements and that equitable concerns weighed in his favor since defendant could show no prejudice occasioned by the fact that the pleading was filed two weeks after the statutory period passed.

Judge Mary C. Jacobson thoroughly considered plaintiff's evidence and arguments prior to granting defendant's motion to dismiss. We affirm substantially for the reasons set forth by Judge Jacobson in detail in her oral opinion delivered on July 26, 2006, and in her written amplification of reasons filed pursuant to R. 2:5-1(b). We add only these brief comments.

Plaintiff's proofs here were similar to those which we deemed inadequate in Cwiklinski v. Burton, 217 N.J. Super. 506 (App. Div. 1987). In short, no "person stated that the letter containing the complaint was actually deposited at the post office." Id. at 508. Unlike the plaintiff in Waite v. Doe, 204 N.J. Super. 632, 633 (App. Div. 1985), certif. denied, 102 N.J. 398 (1986), who possessed a date-stamped certificate of mailing from the post office, plaintiff "cannot establish that the complaint was mailed," and because of that deficiency he "cannot rely upon the presumption of its delivery to the Clerk's Office within a reasonable period of time." Cwiklinski, supra, 217 N.J. Super. at 511.

Moreover, as we noted in Luiz v. Sanjurjo, 335 N.J. Super. 279, 282 (App. Div. 2000), given advances in office technology, "[a]n attorney owes a duty to monitor whether a mailed document has actually been received and filed." Here, where the statute was about to expire in less than three weeks, it was incumbent upon counsel to assure himself that the pleadings had been appropriately filed. See also Cwiklinski, supra, 217 N.J. Super. at 511-12 (noting counsel was required "to ascertain if the complaint had reached its destination" after failing to receive confirmation of receipt within three to four weeks of mailing). Thus, even if plaintiff's proofs were sufficient to create a presumption that the pleadings were mailed on December 23, 2005, and they were not, we would nevertheless agree with Judge Jacobson that the complaint should have been dismissed.

Lastly, plaintiff argues that the complaint should not be dismissed because of the "discovery rule." Lopez v. Swyer, 62 N.J. 267 (1973). Since he was subject to the limitation on lawsuit threshold, N.J.S.A. 39:6A-8, he claims he was uncertain whether his injuries were sufficient to overcome the litigation bar until he was diagnosed with "carpal tunnel syndrome." He argues that this was the first time he "discovered" he had suffered a "permanent injury" in the accident and was now in a position to pursue the claim by filing this lawsuit. Although plaintiff fails to state precisely when he became aware of the diagnosis, the appendix to his brief contains a "prescription blank" from a Dr. Michael S. Grenis, dated July 3, 2006, that contains the diagnosis. He argues his cause of action did not accrue until he was diagnosed with a "permanent injury," and therefore he did not run afoul of N.J.S.A. 2A:14-2.

In Mancuso v. Mancuso, 209 N.J. Super. 51, 54 (App. Div. 1986), the plaintiff sought the refuge of the "discovery rule" when she filed her complaint two years and nine months after the date of her automobile accident. She had been advised some eight months earlier that the onset of her Parkinson's disease was causally related to the accident. Ibid. Prior to that diagnosis, however, the plaintiff had chosen "not to commence an action to recover damages for her negligible and transient soft tissue injuries" consistent with the belief that N.J.S.A. 39:6A-8(a) barred her action. Id. at 59. While we concluded the "discovery rule" was applicable, and remanded the matter for a hearing pursuant to Lopez, supra, we noted

[A] plaintiff claiming the benefit of the discovery rule in respect of an injury so sustained has an extraordinarily high burden of demonstrating that he did not and could not have timely known of the existence of the cause of action. This is particularly so where, as here, the existence of the actionable injury is known shortly after the occurrence of the accident.

[Mancuso, supra, 209 N.J. Super. at 57.]

In this matter, plaintiff has failed to carry his "extraordinarily high burden." Initially, we note that plaintiff raised this argument in passing before Judge Jacobson and it was essentially unsupported by anything contained in the papers filed in opposition to defendant's motion. Secondly, plaintiff has failed to demonstrate that he did not know his wrist was injured in the accident or that he did not experience pain or limitation in the use of his wrist as a result of the accident at some earlier time. Third, plaintiff actually filed his complaint, at the latest, sometime in January 2006. That was some six months prior to the diagnosis of carpal tunnel syndrome. Clearly the juxtaposition of those two events demonstrates that plaintiff's equitable argument regarding the "discovery rule" must fail.

Affirmed.

The check to the clerk was actually made payable to "United States Treasury," and the amount of the check to the sheriff was incorrect.

(continued)

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A-0054-06T3

October 29, 2007