DRAKE BARANYI v. LAWRENCE J. PENN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3101-09T3

DRAKE BARANYI,

Plaintiff-Appellant,

v.

LAWRENCE J. PENN and

DIANA PENN,

Defendants-Respondents.

_________________________________________________

December 27, 2010

Submitted1 December 7, 2010 - Decided

Before Judges Payne and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Docket No.

L-500-09.

Scott J. Capriglione, attorney for

appellant.

McLaughlin & Cooper, attorneys for

respondents (John J. Gentile, of counsel;

William F. Hartigan, Jr., on the brief).

PER CURIAM

On January 20, 2007, a motor vehicle collision occurred between a car driven by Drake Baranyi and one driven by Lawrence Penn. On or about February 20, 2009, Baranyi filed suit. In the complaint filed on Baranyi's behalf, it was alleged that "[p]laintiff was unaware of his injuries until several weeks after the accident, approximately February 28, 2007, at which time he was experiencing neck and back pain." Thereafter, the complaint was dismissed for lack of prosecution, but after service of the complaint in October 2009, the complaint was reinstated on November 30, 2009. Approximately one month later, Penn moved for its dismissal as barred by the applicable two-year statute of limitations. N.J.S.A. 2A:14-2. At the request of Baranyi's counsel, the motion was adjourned from January 8, 2010 to February 5, 2010. However, no opposition to the motion was ever filed. The motion was granted by order dated February 5, 2010, and the matter was dismissed with prejudice. This appeal followed.

On appeal, Baranyi claims that, at the time of the accident, he was noted as having sustained only minor injuries, and that he did not discover that he had sustained serious injuries to his neck and knee2 until the latter part of February 2007. He therefore claims entitlement to the tolling provisions of the discovery rule as set forth in Lopez v. Swyer, 62 N.J. 267, 272 (1973).3

We reject Baranyi's argument. The police report prepared on the day of the accident indicates that Baranyi complained of "minor neck and knee pain." We have held in connection with a suit arising from injuries sustained in an automobile accident:

We are aware that ordinarily a cause of action based on automobile negligence occurs when the accident takes place and hence that plaintiff is then chargeable with knowledge of the cause of action even if it should thereafter appear that the injuries then known to have been sustained turn out to be more serious than originally believed. See, e.g., Montag v. Bergen Bluestone Company, 145 N.J. Super. 140, 144-145 (Law Div. 1976); Raskulinecz v. Raskulinecz, 141 N.J. Super. 148, 151 (Law Div. 1976). Accordingly, 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 v. Mancuso, 209 N.J. Super. 51, 57 (App. Div. 1986).]

In Mancuso, we recognized for the first time the applicability of the discovery rule in an automobile accident context. In doing so, we noted "two common threads" running through cases in which the discovery rule had been found applicable: (1) that the case was "one subject to a period of limitations measured by accrual rather than the occurrence of an objective event" and (2) it was one in which "the circumstances . . . strongly militated towards the grant of equitable relief." Id. at 56. We then considered the plaintiff's evidence that she believed that she had sustained only negligible and transitory injuries in an automobile accident and neither did nor could have known that the accident had severely exacerbated her latent Parkinson's disease until advised of that fact by a neurologist one month after the statute of limitations had run. Id. at 53-54, 58. Finding the case thus to be "extraordinary," we reversed an order of summary judgment based on the expiration of the statute of limitations and remanded the matter for a hearing as to the applicability of the discovery rule. Ibid.

In contrast to Mancuso, our review of the allegations set forth in the present case leads us to conclude that Baranyi has failed to set forth a factual foundation for his claim that he did not and could not have known of the existence of a cause of action at the time that the motor vehicle accident occurred and thus is entitled to a discovery rule hearing to determine the date of accrual of his cause of action. Indeed, the record is devoid of any certification by Baranyi as to the nature of his injuries and the date of their manifestation, any medical records or reports, or any competent evidence in any form that might serve as a basis for Baranyi's discovery rule claim. Further, Baranyi offers nothing that would cause us to conclude that he is entitled to equitable relief.

In Mancuso, we noted that we did not intend to suggest by our holding, in the context presented there, that the relief of the discovery rule "should be available to a plaintiff who merely misjudges the severity of a known injury or who suffers consequent symptoms or ailments reasonably related to the originally known causally-connected injury." Id. at 59; see also Abboud v. Viscomi, 111 N.J. 56, 64 (1988) (citing Mancuso). Viewing Baranyi's allegations indulgently, we conclude that his case falls into that category as to which the discovery rule is unavailable. The admission by Baranyi's counsel on appeal that Baranyi complained of minor injuries to his neck and knee immediately after the accident supports that view, as does the police officer's description of Baranyi's injuries set forth in his report.

1 Oral argument was requested in the above matter. However, Baranyi's attorney failed to appear in court, and we were informed that he had been "involved in an automobile accident." On two occasions thereafter, argument by telephone conference call was scheduled. However, on each occasion Baranyi's attorney, who was directed to arrange the call, failed to do so. Defense counsel was available on both occasions.

2 We note that Baranyi's late-discovered injuries were alleged in the complaint to have been to his neck and back, whereas on appeal it is claimed that they were to his neck and knee.

3

The rule provides that, in appropriate cases, a cause of action does not accrue until the injured party discovers or should have discovered through reasonable diligence that he may have a basis for an actionable claim. Ibid. The applicability of the discovery rule is determined by the court following an evidentiary hearing on that issue. Id. at 275.