CHRISTINE M. GRAZIANO v. SHELLEY I. FINKELSTEIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHRISTINE M. GRAZIANO,

Plaintiff-Appellant,

v.

SHELLEY I. FINKELSTEIN,

Defendant,

and

FELIX J. GRAZIANO,

Defendant-Respondent.

___________________________

May 13, 2014

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1152-11.

Pierce L. Butler argued the cause for appellant.

John P. Gillespie argued the cause for respondent (Law Offices of Walter F. Skrod, attorneys; Mr. Gillespie, on the brief).

PER CURIAM

Plaintiff Christine Graziano (Christine)1 appeals from the May 3, 2013 order: denying her motion to reinstate her complaint against her husband, defendant Felix Graziano (Felix); and granting Felix's cross-motion to dismiss the complaint with prejudice pursuant to Rule 4:6-2(e) based on the entire controversy doctrine. We reverse and remand for further proceedings.

We derive the following facts from the record. On April 24, 2009, Felix and Christine were involved in a motor vehicle accident with Shelley and Karen Finkelstein, and all four sustained personal injuries. On July 8, 2009, the Finkelsteins filed a complaint against Christine, as the car's owner, and Felix, as the driver (the Finkelstein matter). Christine's defense counsel James L. Pantages, Esq. filed an answer on her behalf, and Felix's defense counsel, John P. Gillespie, Esq., filed an answer on his behalf.2

On September 10, 2009, Robert D. Kobin, Esq. filed a complaint on behalf of Felix and Christine against the Finkelsteins (the Graziano matter). Felix sought damages for his injuries and Christine asserted a per quod claim. At the same time, Pierce Butler, Esq., was representing Christine with respect to her personal injury claim. Butler did not file a separate complaint, or a counterclaim or cross claim in the Finkelstein and Graziano matters. In a November 3, 2009 letter, Pantages advised Gillespie that Butler was representing Christine with respect to her personal injuries.

The Finkelstein and Graziano matters were consolidated on January 8, 2010, and dismissed with prejudice as to Christine on November 18, 2010. On April 5, 2011, Christine's per quod claim in the Graziano matter was dismissed with prejudice for failure to provide discovery.

On April 20, 2011, Butler filed a complaint on Christine's behalf against Shelley Finkelstein and Felix. Butler complied with Rule 4:5-1(b)(2) by certifying that the matter was subject to the Finkelstein and Graziano matters. Butler also filed an undated Physician's Certification, which stated that Christine suffered a permanent injury sufficient to vault the verbal threshold, N.J.S.A. 39:6A-8a. Butler did not move to consolidate Christine's complaint with the other matters, which were still pending.

On November 4, 2011, the court administratively dismissed Christine's complaint as to Felix without prejudice for lack of prosecution.3 In December 2011, the Finkelsteins and Felix settled their respective claims and later dismissed their respective complaints.

On September 4, 2012, Christine filed a motion to restore her complaint against Felix. Butler claimed that he served Felix by certified and regular mail on April 30, 2011, and Christine claimed that Felix received the complaint and sent it to GEICO, but GEICO did not file an answer.

Felix filed a cross-motion to dismiss based on the entire controversy doctrine. In opposition, Christine requested a plenary hearing to produce evidence of equitable considerations, such as her inability to obtain a Physician's Certification at an earlier date and GEICO's failure to provide medical records, which required her to file for personal injury protection arbitration in 2012.

Relying on Prevratil v. Mohr, 145 N.J. 180 (1996), the motion judge denied Christine's motion and granted Felix's cross-motion. The judge concluded that the entire controversy doctrine required Christine to assert her personal injury claim in the Finkelstein matter, and Christine's equitable considerations did not interfere with her ability to do so. The judge made no findings on Christine's motion to restore. This appeal followed.

The entire controversy doctrine "applies to actions arising out of automobile-accident cases." Id. at 183. However, to assure the fairness of a dismissal based on the entire controversy doctrine, the court may consider whether the injured party had sufficient information to have included the claim in the prior lawsuit. Thomas v. Hargest, 363 N.J. Super. 589, 596 (App. Div. 2003). In verbal threshold cases, such as the present case, the court may consider if the injured party lacked sufficient information to assert a claim in the prior lawsuit because of uncertainty about the permanency of the loss of use of a body part or organ. Prevratil, supra, 145 N.J. at 197.

Accordingly, we reverse and remand for a plenary hearing for the court to consider whether Christine lacked sufficient information to assert a claim in the prior lawsuit because of uncertainty about the permanency of the loss of use of a body part or organ. If the court so finds, it shall then determine whether Christine has shown that she served Felix with the summons and complaint and that there are exceptional circumstances for vacating the dismissal. R. 1:13-7(a).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 We refer to the parties by their first names for convenience. We mean no disrespect in so doing.

2 We assume that the Graziano's automobile insurance carrier, GEICO, retained Pantages and Gillespie to defend them in the Finkelstein matter.

3 Finkelstein was served, and Christine settled her claims against him.