BEATRIZ SILVA v. JESSE L. WALKER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2298-05T32298-05T3

BEATRIZ SILVA,

Plaintiff-Appellant,

v.

JESSE L. WALKER, NJ TRANSIT

CORP., JAMES A. HARRIS,

WENDELL A. HARRIS, UNSATISFIED

CLAIM & JUDGMENT FUND, NEW

JERSEY PROPERTY-LIABILITY

INSURANCE GUARANTY ASSOCIATION

as Statutory Administrator for

UNSATISFIED CLAIM AND JUDGMENT

FUND,

Defendants,

and

AMANDA LYNN PEREZ and

LOUIS VAZQUEZ,

Defendants-Respondents.

________________________________

 

Submitted October 5, 2006 - Decided March 2, 2007

Before Judges Collester and Sabatino.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, L-4634-04.

Cary & Icaza, attorneys for appellant

(Douglas D. Burgess, of counsel and on the

brief).

Respondent Perez has not filed a brief.

Respondent Vasquez has not filed a brief.

PER CURIAM

The genesis of this case is a motor vehicle accident in Elizabeth on October 11, 2002, when plaintiff was a passenger in a New Jersey Transit bus driven by defendant Jesse L. Walker. A vehicle owned by defendant Louis Vasquez and driven by Amanda Lynn Perez went through a red light and struck the right side of the bus. The bus then struck a vehicle owned by defendant Wendell A. Harris and driven by defendant James A. Harris. Plaintiff filed his complaint for personal injury on June 8, 2004, naming all of the above as defendants and the Unsatisfied Claim and Judgment Fund/PLIGA (Fund). Answers were filed on behalf of Harris, Walker, New Jersey Transit and the Fund, but not Vasquez or Perez. The case has been resolved through unopposed dismissals as to all defendants, except defendants Vasquez and Perez.

Plaintiff's counsel certified that there were problems serving the two remaining defendants. Mail service was returned as to Vasquez at the address listed on the police report with a statement that he had moved. Counsel then obtained a Division of Motor Vehicles (DMV, presently known as Motor Vehicle Services) driver abstract for Vasquez, which indicated that his New Jersey license had not been renewed. Subsequently, a skip trace report indicated a new address in Brandon, Florida. Perez's address on the police report was in Tampa, Florida, but the complaint and summons were returned as unclaimed. Plaintiff then effected constructive service on Motor Vehicle Services (MVS) in July 2004 for Perez and in October 2004 for Vasquez.

Because no answer, default or proof of service was filed with the court, written notice from the court was sent to plaintiff's counsel advising that the action against the defendants would be dismissed without prejudice sixty days after receipt of the notice unless acknowledgement or proof of service was filed, default was requested or a motion was made to remove these defendants from the dismissal list. R. 1:13-7(c). No response was received within sixty days, and the action against Perez and Vasquez was therefore dismissed without prejudice for lack of prosecution. Meanwhile, plaintiff's counsel did serve Vasquez and received information from a skip tracer with a new address for Perez.

It was not until May 17, 2005, that plaintiff moved to restore the complaint against Vasquez and Perez. The motion was denied on the papers on June 10, 2005. The order prepared by the court denied reinstatement. Plaintiff thereafter moved for reconsideration, which was denied by the judge following oral argument. The judge gave the following reasons: (1) the movant did not identify the reasons why the earlier order denying reinstatement was erroneous; (2) certification by counsel in support of the motion violated R. 1:6-6 because it contained matters not based on personal knowledge; (3) service of the administratively-dismissed complaint on defendants in Florida was improper until the complaint was restored; and (4) the initial substituted service on defendants through the DMV was invalid under N.J.S.A. 39:7-2 because they may have been New Jersey residents at that time. Plaintiff has appealed.

Plaintiff contends that the judge's ruling that the subsequent service of the defendants in Florida was improper because the complaint had not been restored, is erroneous based on Stanley v. Great Gorge Country Club, 353 N.J. Super. 475 (Law Div. 2002). That case held that under revised Rules of Court, a summons and complaint may be served after a R. 1:13-7(a) dismissal and that good cause is presumed if an application to vacate the dismissal is made within a year, unless a defendant is prejudiced by the delay. Id. at 486. The trial judge correctly stated she was not bound by Stanley, and stated her disagreement with its reasoning and result.

N.J.S.A. 39:7-2 permitting service through Motor Vehicle Services is only applicable when the defendant is a non-New Jersey resident. Here, the police report gives a Florida address for Perez. Moreover, as to Vasquez, we disagree with the trial judge that service of a complaint upon a defendant after an R. 1:13-7(a) dismissal is invalid and constitutes an ethical violation by plaintiff's counsel. We are persuaded to the contrary by the reasoning of Stanley and find the decision of the trial judge to be erroneous.

 
Moreover, R. 1:13-7(a) is primarily a case management tool to ascertain whether a case is viable. See Rivera v. Atlantic Coast Rehabilitation & Health Care Ctr., 321 N.J. Super. 340, 346 (App. Div. 1999). As we said in Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989), the Rule is administrative and "designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion." Most dismissals without prejudice under this Rule are the result of problems with service of process. Rivera, supra, 321 N.J. Super. at 346, and the Rule should not be invoked to effect an injustice in those circumstances. The trial judge properly admonished counsel for waiting unnecessarily to seek restoration of the case, but we conclude sufficient good cause existed to restore the complaint and permit the case to go forward for a decision on the merits, subject to a claim of prejudice by either defendant because of the lapse of time.

Reversed.

(continued)

(continued)

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A-2298-05T3

March 2, 2007