IBRAHIM ELBALLAT v. PARC HARRISON CONDO ASSOC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1587-07T11587-07T1

IBRAHIM ELBALLAT,

Plaintiff-Appellant,

v.

PARC HARRISON CONDO ASSOC.,

d/b/a ALMA REALTY COMPANY,

Defendant,

and

SLADE INDUSTRIES, INC.,

Defendant-Respondent.

________________________________________________________________

 

Argued October 2, 2008 - Decided

Before Judges Cuff and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3939-04.

Michael C. Kazer argued the cause for appellant (Michael C. Kazer, P.C., attorney; Mr. Kazer, on the brief).

David J. McKenna argued the cause for respondent (Law Offices of Joseph Carolan, attorney; Mr. McKenna and George H. Sly, Jr., on the brief).

PER CURIAM

Plaintiff Ibrahim Elballat appeals from an October 20, 2006 grant of summary judgment to defendant Slade Industries, Inc. (Slade) on the grounds that his complaint was barred by the statute of limitations. On appeal, plaintiff maintains that he is entitled to reversal of that order because the judge misapplied the fictitious defendant procedures established by Rule 4:26-4. We disagree and affirm.

I.

On April 27, 1999, plaintiff was injured while using the elevator in his apartment building located at 270 Harrison Avenue in Jersey City. On June 12, 2000, he filed a complaint against Parc Harrison Condo Assoc. (Parc), the owner of the building. He also named as a John Doe defendant the person or entity that maintained or repaired the elevator in question. Along with his complaint, plaintiff served a demand that Parc answer interrogatories. Although Parc provided answers to some of the questions, Parc failed to answer the question that asked Parc to state the name of the company that provided elevator maintenance and repair services at the time in question. Plaintiff did not file a motion to compel discovery or take any other action to compel Parc to provide the identity of such company.

In March 2002, Parc's liability insurance carrier, Legion Insurance Company (Legion), commenced bankruptcy proceedings in Pennsylvania, which caused a Pennsylvania judge to issue a stay of all Pennsylvania proceedings against Legion or its insureds. The stay was effective on September 28, 2002 and ended on May 31, 2003. Although counsel for Parc requested the Law Division on three occasions between October 2002 and April 2003 to "enter an order extending comity to the Commonwealth Court's Order and stay the trial of this matter," a records search in the Hudson County Civil Division Case Management Office established that no stay was ever issued.

Despite the absence of any stay affecting the instant matter, Parc notified plaintiff that Legion was refusing to take any further action on the file during the pendency of the Pennsylvania bankruptcy proceedings. Consequently, Parc agreed that in return for plaintiff taking a voluntary dismissal without prejudice of its complaint against Parc, Parc would not assert a statute of limitations defense once plaintiff reinstituted his complaint. Hence, on or about March 2, 2004, plaintiff filed a stipulation of dismissal without prejudice.

More than two years later, on July 26, 2004, plaintiff filed the present complaint. Plaintiff propounded the same interrogatories that he had propounded when he filed the first complaint in June 2002. In response, Parc provided the same partial answers to discovery that it had provided in March 2002. This time, however, on May 19, 2005, plaintiff filed a motion to strike Parc's answer based upon Parc's failure to answer interrogatories. On May 31, 2005, prior to the return date of that motion, Parc identified defendant Slade as the company with whom Parc had an elevator maintenance contract at the time of plaintiff's fall in 1999.

Although Parc provided the contract, it did not provide details of any repairs or scheduled maintenance. In addition to providing its contract with Slade, Parc also provided copies of repair bills from an unrelated elevator repair company, Arctec Elevator Service. Plaintiff attempted to obtain elevator inspection records from State and municipal regulatory authorities, but the records provided were not helpful. On July 18, 2005, plaintiff served a notice to produce on Slade. Six months of inactivity ensued until on January 30, 2006, counsel for Parc forwarded the relevant repair records to plaintiff's counsel. Those records revealed that Slade was the company that had performed maintenance and repair of the elevator for the months of January through May 1999. Plaintiff maintains that in February 2006, he moved to amend his complaint to add Slade as a defendant in place of the John Doe designation in his complaint. The record, however, does not contain a copy of that motion. We assume the motion was granted because on March 22, 2006, plaintiff filed an amended complaint naming Slade as a defendant, nearly seven years after the April 27, 1999 accident.

In October 2006, Slade moved for summary judgment, alleging that plaintiff's complaint against it was barred by the statute of limitations. Slade argued in support of its motion that: 1) although plaintiff's original and second complaints both named a fictitious defendant, plaintiff cannot be permitted to use a fictitious defendant to indefinitely toll the running of the statute of limitations; and 2) plaintiff failed to exercise due diligence in seeking to discover the identity of Slade, a potentially culpable party. Plaintiff opposed defendant's motion by arguing that "there is no prejudice to the defendant by the actual elaps[ing] of time." The court rejected plaintiff's arguments and granted defendant's motion for summary judgment.

On appeal, plaintiff maintains that the motion judge applied an improper legal standard when he granted Slade's motion for summary judgment.

II.

We review the trial court's grant of summary judgment de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Employing the same standard the trial court uses, ibid., we review the record to determine whether there are material factual disputes and, if not, whether the undisputed facts viewed in the light most favorable to plaintiff nonetheless entitle defendants to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

A plaintiff must file an action for personal injury that was caused by the negligence of another within two years of the happening of the accident. N.J.S.A. 2A:14-2. "Statutes of limitations are designed to stimulate litigants to pursue their causes of action diligently and 'to spare the courts from litigation of stale claims.'" Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973) (quoting Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct. 1137, 1142, 89 L. Ed. 1628, 1635 (1945)). Limitations periods "penalize dilatoriness and serve as measures of repose." Ibid.

When a plaintiff knows he has a cause of action against a defendant but the identity of that defendant is unknown at the time the complaint is filed, the plaintiff is entitled to utilize the fictitious name procedure contained in Rule 4:26-4.

However, the fictitious names procedure authorized by Rule 4:26-4 will not indefinitely defer the running of the statute of limitations. Johnston v. Muhlenberg Reg'l. Med. Ctr, 326 N.J. Super. 203, 207-08 (App. Div. 1999). In order for the provisions of that Rule to protect a plaintiff from the statute of limitations defense, a plaintiff must act during the pretrial discovery period without undue delay to ascertain the identity of the unknown defendant. Ibid.

Here, we agree with Judge Sarkisian's conclusion that "the steps taken [by plaintiff] were not sufficient from the date of the filing of this complaint to allow this court to approve the implementation of the fictitious rule or practice." We so conclude for two reasons. First, plaintiff unjustifiably allowed years to elapse before filing the discovery motion in May 2005 that forced Parc to name Slade. Specifically, although defendant Parc failed to answer an interrogatory question in 2000 that asked Parc to identify the company that repaired and maintained the elevator, plaintiff never in the forty-month period that the initial complaint was pending, filed a motion to compel discovery in order to secure the missing information. Nothing in the record justifies plaintiff's failure to file a discovery motion in 2000 or excuse plaintiff's decision to wait until May 19, 2005, to file that motion.

Second, plaintiff waited from May 31, 2005, which was the date Parc supplied the identity of Slade, until March 22, 2006, some ten months later, to actually file an amended complaint naming Slade as a defendant. Plaintiff seeks to justify this additional ten-month delay by arguing that in May 2005, Parc provided merely a copy of its maintenance contract with Slade for the applicable time period but did not produce actual repair records. Plaintiff asserts that without copies of the actual repair records, had he named Slade as a defendant, such action would have constituted the filing of a frivolous complaint. We need not address that issue because even if we were to agree that plaintiff was required to obtain the actual repair records before naming Slade as a defendant, we are satisfied that the ten-month time lapse between May 2005, when plaintiff obtained the repair contract from Parc, and March 2006, when plaintiff finally filed his amended complaint naming Slade, was simply too long, and is not compatible with due diligence. Johnston, supra, 326 N.J. Super. at 207-08

We likewise reject plaintiff's argument that the litigation stay that resulted from the liquidation proceedings by Parc's insurance carrier justifies the considerable delay that occurred here. As Slade rightly observes, no stay was entered by a New Jersey court. Additionally, even the Pennsylvania stay lasted for only eight months. Thus, even if we were to accept plaintiff's argument regarding the stay, it would account for only eight months of the four years and eleven months by which the filing of plaintiff's amended complaint in March 2006 exceeded the applicable two-year statute of limitations.

Last, we reject plaintiff's argument that because there was no prejudice to Slade resulting from the delay, the Law Division was required to deny Slade's summary judgment motion. First, there was prejudice. The employee who repaired the elevator is no longer in Slade's employ. Second, as we observed in Marion v. Borough of Manasquan, 231 N.J. Super. 320, 335 (App. Div. 1989), an absence of prejudice does not entitle a plaintiff to an indefinite relaxation of the requirements of Rule 4:26-4:

[P]laintiffs argue that the key to relaxation of the requirements of R. 4:26-4 hinges on the absence of prejudice to the defendants. Thus, plaintiffs contend that individual defendants may be named after the period of limitations has expired so long as there is no showing of prejudice to them by reason of the late joinder. Such a broad proposition is not substantiated by any case decided by this court or the Supreme Court and ignores the holding in Farrell.

[Marion, supra, 231 N.J. Super. at 335.]

Consequently, we conclude that plaintiff has failed to adequately explain the extraordinarily long period of four years and eleven months that elapsed between the running of the statute of limitations and the filing of his amended complaint on March 22, 2006. Plaintiff's inaction and delay is not compatible with the exercise of due diligence that Farrell, supra, 62 N.J. at 122-23, and Johnston, supra, 326 N.J. Super. at 208, require. There were no material facts in dispute and Slade was entitled to judgment as a matter of law. See Brill, supra, 142 N.J. at 540. The grant of summary judgment to defendant Slade is affirmed.

Affirmed.

Plaintiff did not file a notice of appeal from the order of October 20, 2006 until he settled on October 22, 2007 with the remaining defendant, causing the order under review to become final. He filed his notice of appeal on January 7, 2008.

(continued)

(continued)

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A-1587-07T1

October 20, 2008