AWILDA OYALA v. ELAINE'S RESTAURANT L.L.C CITY OF JERSEY CITY 755-757 BERGEN AVENUE CORP.; and MONTGOMERY CHECK CASHING and POWER CONCRETE CO INC and ASSUNCAO BROS INC -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5145-09T3

AWILDA OYALA,

Plaintiff-Appellant,

v.

ELAINE'S RESTAURANT, L.L.C.;

CITY OF JERSEY CITY; 755-757 BERGEN

AVENUE CORP.; and MONTGOMERY CHECK

CASHING,

Defendants,

and

POWER CONCRETE CO., INC.;

and ASSUNCAO BROS., INC.,

Defendants-Respondents.

_______________________________________________

April 6, 2011

Submitted January 31, 2011 - Decided

Before Judges Kestin and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2997-08.

Kenneth M. Sunberg, attorney for appellant.

Respondents have not filed a brief.

PER CURIAM

Plaintiff, Awilda Oyala, appeals from orders denying her latest motion to amend the complaint and her motion for reconsideration. Because of other orders that had been entered in the matter, the result of the challenged orders was to leave plaintiff without a defendant against which to proceed. We affirm.

The initial complaint, in four counts, was filed on June 12, 2008. It alleged personal injury to plaintiff when, "on or about December 31, 2006, . . . [as] a pedestrian", she fell on a public sidewalk at 755 Montgomery Street in Jersey City. Plaintiff alleged, further, that the sidewalk had been negligently maintained or lacked a proper warning of a hazardous condition.

The first count of the complaint named as a defendant Elaine's Restaurant,1 apparently a commercial establishment at that address. The second count named the City of Jersey City (the City) as a defendant. The third count named fictitious defendants, "ABC Companies 1-10 . . . the owner, contractor, lessee or otherwise [which] had control over the sidewalk in question." The fourth count named another fictitious defendant, "XYZ Maintenance Co. [which] through its agents, servants, and/or employees was the owner, operator, lessee or otherwise [and] had control over the sidewalk in question."

After the City's motion to dismiss was denied,2 it filed an answer and a third-party complaint naming Power Concrete Co, Inc. (Power Concrete) and Assuncao Bros. Inc. (Assuncao) as third-party defendants. Plaintiff then, on March 20, 2009, filed an amended complaint naming those entities as direct defendants. The latter entities eventually joined issue as direct defendants. The City also filed an answer to the amended complaint.

There had already been some discovery in the matter when, on September 17, 2009, plaintiff's deposition revealed that the incident that resulted in her injury had occurred on the sidewalk at 755 Bergen Avenue, not at the address initially alleged in the complaint and throughout the discovery process that had occurred to date. Plaintiff's attorney learned from the City that the owner of 755 Bergen Avenue was 755-57 Bergen Avenue Corporation, and that the tenant of the premises was Montgomery Check Cashing (Montgomery).

On October 15, 2009, plaintiff filed a motion for leave to amend the complaint to add the newly discovered owner and tenant. The motion was granted and a further amended complaint was filed on November 18, 2009, and served on all parties.

Also on November 18, 2009, the City filed a motion for summary judgment in lieu of answer seeking a dismissal of the amended complaint as to it. Nevertheless, on December 8, 2009, the City filed an answer to the newly amended complaint. Plaintiff opposed the City's motion for summary judgment and the motion was denied in an order entered on December 18, 2009. The City moved for reconsideration and that motion was granted; an order entered on February 5, 2010 dismissed the complaint against the City with prejudice. By that time the other original defendants and the newly identified defendants had filed answers to the most recently amended complaint.

On February 8, 2010, an attorney representing the City informed plaintiff's attorney that the City had a contract with Manhattan Signs and Banners of NJ, Inc. (Manhattan Signs). Plaintiff represents on appeal with no documentary support that that contract was for work to be performed in front of 755-57 Bergen Avenue. After receiving the communication from counsel for the City, plaintiff moved for leave to file another amended complaint to add Manhattan Signs as a defendant. The motion was returnable on April 1, 2010. An order denying the motion was entered on April 16, 2010. The reason for the denial stated in the order was that the "moving papers fail to set forth a factual basis to implead Manhattan Signs . . . . Fax cover sheet dated 2/8/10 provides no info as to a party's involvement."

In the interim, defendant Montgomery had moved for dismissal of the complaint on Statute of Limitations grounds. That motion was granted on April 1, 2010. Defendant 755-757 Bergen Avenue Corporation had also moved for dismissal on the same grounds; and that motion was granted in an order entered on May 14, 2010. Apparently, plaintiff has not appealed from either of the latter orders. Defendants Power Concrete and Assuncao moved for summary judgment on March 25, 2010 and April 6, 2010, respectively. Those motions were granted on May 14, 2010, on the basis that those defendants had no relationship to the actual site of plaintiff's injury.

On April 29, 2010, plaintiff moved for reconsideration of the order denying the last motion for leave to amend the complaint. The April 29 motion was returnable on May 14, 2010. The order denying that motion was entered on May 28, 2010, stating "There is no pending matter. All defendants have been dismissed from case by court orders."

This appeal is from the April 16, 2010 order denying leave to amend the complaint and from the May 28, 2010 order denying reconsideration.

We discern no misapplication of discretion in the trial court's denial of the two motions. The court's statement of the reason for denying the motion for leave to amend the complaint once again, accurately reflected the state of the record. No factual basis had been provided in the papers before the court for adding Manhattan Signs as a defendant, The certification in support of the motion gave as the reason for amending:

The attorney for the City of Jersey City indicated in a letter dated 2/8/10, that the City of Jersey City was contracted with Manhattan Signs & Banners of NJ, Inc. and thereby should be named as an additional defendant in this matter. (See letter from Priti Vakharia, Esq., dated 2/8/10, attached).

The attachment referred to was, apparently a "fax transmittal cover sheet" that stated: "Attached please see the judge's order granting the City of Jersey City's motion for reconsideration and the City of Jersey City's contract with Manhattan Signs and Banners of NJ Inc." Apparently, aside from that cover sheet, and counsel's certification as set out above, no further documentation was provided in support of the April 2010 motion to amend the complaint. We note that the fax cover sheet from counsel for the City does not state what the contract with Manhattan Signs entailed, and the contract itself was not provided in support of the motion to amend the complaint.

The trial court's decision to deny the motions reflected a record in which several amended complaints had already been filed, and two newer defendants had succeeded in their motions to dismiss on Statute of Limitations grounds because the event giving rise to the complaint occurred more than two years before the complaints against them had been filed. A high likelihood, if not an inevitability, existed that Manhattan Signs would raise the same defense and succeed, as others had, in obtaining a summary judgment dismissal. Plaintiff's error in initially designating the incorrect address for the location of her injury was the precipitating factor in the late claims made against several defendants, including Manhattan Signs. Thus, we not only discern a lack of error or misapplication of discretion on the part of the trial court in entering the orders giving rise to this appeal, we also conclude, in the light of the fact that no defendant other than Manhattan Signs (only potentially) remains, that there is no reasonable likelihood of plaintiff's success on the merits.

The orders appealed from are affirmed.

1 According to the list of parties in the notice of appeal, this defendant was "never served[,] so is not a party to the action."

2 Some of the procedural background we recount is taken directly from the procedural history in plaintiff's brief on appeal. The appendix to her brief omits some of the supporting documents. As none of the respondents has filed a brief, we have no other recounting of the factual setting and procedural history of the case other than that provided by plaintiff.