AFAF ABOUSHABAIEK v. WILLOWBROOK MALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

AFAF ABOUSHABAIEK,

Plaintiff-Appellant,

v.

WILLOWBROOK MALL, WAYNE TOWN

CENTER ASSOCIATION and MARCH

ASSOCIATES, INC.,

Defendants-Respondents.

_______________________________________________

June 10, 2014

Submitted June 3, 2014 Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3769-10.

Zareh H. Beylerian, attorney for appellant.

Naulty, Scaricamazza & McDevitt, LLC, attorneys for respondent Willowbrook Mall (Gerard X. Smith, on the brief).

Law Offices of Linda S. Baumann, attorneys for respondent Wayne Town Center Association (Evert W. Van Kampen, on the brief).

Maloof, Lebowitz, Connahan & Oleske, P.A., attorneys for respondent March Associates, Inc. (Therese M. Hough, on the brief).

PER CURIAM

In reviewing the denial of a motion to reinstate this action to the active trial calendar, we start by acknowledging that: plaintiff alleged she was injured at a mall on August 8, 2008;1 she filed a complaint against defendants on July 28, 2010; and no defendant had answered or filed an appearance when the action was administratively dismissed, pursuant to Rule 1:13-7(a), on February 11, 2011.

On April 3, 2013, more than two years after the administrative dismissal, plaintiff moved for reinstatement and for an order permitting substituted service on defendant Wayne Town Center Association (Wayne Town) by serving its insurance carrier. Defendants opposed the motion, which was denied on April 19, 2013. In his order, the trial judge provided the rationale for his ruling: "Exceptional circumstances not demonstrated in this multi-defendant case in which at least one party had been served, why this matter was allowed to remain dismissed for over two years." Plaintiff moved for reconsideration, asserting that the case was mistakenly viewed as a multi-defendant action because, among the three defendants named in the complaint, the only "correct party" is Wayne Town. This motion was denied on May 24, 2013, for the same reason given in the earlier order. Plaintiff appeals, arguing: that the motion should have been viewed with "great liberality"; that the 2008 amendment to Rule 1:13-7(a) regarding multi-defendant actions does not bar reinstatement; and that the record presents no factual bar to reinstatement.2

Initially, we reject plaintiff's attempt to transform her action into a single-defendant action in order to avoid the application of that part of Rule 1:13-7(a) that was used to deny reinstatement. In filing this action, plaintiff named three separate defendants and, thus, cannot now argue that this is not a multi-defendant action simply because she later understood that the defendants other than Wayne Town need not have been joined. Notwithstanding the rejection of this contention, we agree the judge misapplied Rule 1:13-7(a).

To explain, we first observe that relief from an administrative dismissal in a single-defendant case is governed by whether the plaintiff has demonstrated "good cause" for reinstatement. Ibid. In multi-defendant actions, however, when "at least one defendant has been properly served," the plaintiff need only present "good cause" if the motion is filed within ninety days of dismissal but, thereafter, reinstatement "shall be granted only on a showing of exceptional circumstances." Ibid. The reason for this sterner standard in multi-defendant actions is because of the disconcerting potential that the vacating of a dismissal as to one or more defendants "has the capacity of substantially delaying all further proceedings" regarding others. Pressler, Current N.J. Court Rules, comment 1.2 on R. 1:13-7 (2014). That is, application of the exceptional-circumstances standard in multiple-defendant actions presupposes that at least one defendant has participated in the action to some degree and, therefore, allows the trial judge to consider the impact of reinstatement on the ongoing proceedings. That circumstance is not present here no defendant appeared or answered until plaintiff sought reinstatement; there were no ongoing proceedings as to an appearing defendant that would be delayed if reinstatement were permitted. Indeed, the record is not clear as to whether any defendant had even been served by the time the action was dismissed in 2011. Because the circumstances that the 2008 amendment to Rule 1:13-7(a) were intended to address were not present here, we conclude that the judge mistakenly applied the exceptional-circumstances standard in ruling on plaintiff's motion to reinstate.

Accordingly, we vacate the order denying reinstatement insofar as it applies to the action against Wayne Town and remand for further consideration of the motion to reinstate upon the application of the good-cause standard. Of relevance to that determination is the extent to which plaintiff or her attorneys were at fault and whether or to what extent Wayne Town would be prejudiced by reinstatement at this late date. We affirm the denial of the motion to reinstate insofar as it applies to the other defendants.

Affirmed in part; vacated in part; and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1Plaintiff did not include a copy of the complaint in her appendix contrary to Rule 2:6-1(a)(1)(A), and we only assume the date of the accident from other parts of the record. Nothing in the record reveals the location of the accident.

2Although defendants Willowbrook Mall and March Associates, Inc. have responded to this appeal and filed briefs on the merits, we discern from plaintiff's brief that she only seeks reinstatement of the claims against Wayne Town. For example, plaintiff argues in her appeal brief:

The other defendants, Willowbrook Mall and March Associates apparently never needed to be included in the complaint. Willowbrook Mall was named only by reason of confusion as to the ownership of the premises where plaintiff sustained her fall. It is now evident that Willowbrook Mall and Wayne Towne Center Mall are separate distinct entities and only the latter is a proper defendant in this case.

To the extent plaintiff may be arguing for reinstatement of the action as to defendants other than Wayne Town, we find such an argument to have insufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).