ANTHONY IANNONE v. DIANE GUERINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANTHONY IANNONE and MARIE

IANNONE, his wife,

Plaintiffs-Appellants,

v.

DIANE GUERINO, ELRAC L.L.C.

d/b/a ENTERPRISE RENT A CAR,

Defendants-Respondents.

______________________________

August 27, 2015

Submitted August 17, 2015 Decided

Before Judges Haas and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8529-13.

The Dasaro Law Firm, P.C., attorneys for appellants (Julia S. Dasaro-Drescher, on the brief).

Dwyer, Connell and Lisbona, attorneys for respondents (Raymond R. Connell, on the brief).

PER CURIAM

Plaintiffs appeal from an order granting summary judgment on behalf of defendants and dismissing all plaintiffs' claims with prejudice for failure to file the complaint within the two-year Statute of Limitations, N.J.S.A. 2A:14-2(a). We reverse.

We discern the following facts from the record. Plaintiff Anthony Iannone allegedly sustained injury as a result of an automobile accident on October 21, 2011. He and plaintiff Marie Iannone, his wife, brought suit against defendants. Plaintiffs' attorney sent a complaint for filing on September 26, 2013, to Monmouth County rather than Essex County, which would have been the proper venue. The clerk of the Civil Part mailed back the complaint on October 17, 2013, with a form letter that indicated that the document lacked an original signature and should have been filed in Essex County. The letter also instructed that "[i]f this pleading is resubmitted with the correct filing fee and documents within 10 days after the stamped received date, filing will be considered to be on said date ([Rule] 1:5-6)."

Plaintiffs' counsel received that letter on October 23, 2013, two days past the Statute of Limitations deadline, N.J.S.A. 2A:14-2(a), then sent an original signed complaint to Essex County which was received and filed on October 29, 2013. Defendant filed an answer and then filed a summary judgment motion asserting the Statute of Limitations, N.J.S.A. 2A:14-2(a), which the trial court granted, dismissing the complaint. The trial judge applied Rule 1:5-6 and determined that because the complaint had not been received in Essex County within ten days of the Monmouth County clerk's letter, it was untimely and the plaintiffs were not entitled to rely upon the dating back provision in Rule 1:5-6. This appeal followed.

Relying primarily on White v. Katz, 261 N.J. Super. 672 (App. Div. 1993), plaintiffs argue on appeal that the trial court erred in its application of the dating back provisions of Rule 1:5-6 in two ways, first by determining that the lack of an original signature on the complaint rendered it subject to return without filing under Rule 1:5-6(c), and second by determining that in order to benefit from the ten-day grace period of Rule 1:5-6(c), the corrected pleading must be received by the county within ten days. Because we agree with plaintiffs' first contention, we need not reach the second.

We review a ruling on summary judgment applying the same standard as the motion court. Nicholas v. Mynster, 213 N.J.463, 477-78 (2013). "Summary judgment must be granted if 'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J.76, 91 (2013) (quoting R.4:46-2(c)). The trial court's interpretation of the law and the legal consequences that flow therefrom are not entitled to any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

In Whitewe said that

[Rule] 1:5-6(c) clearly mandates that the clerk file all papers which are received, even those that are nonconforming. Only in limited circumstances, where the papers are not accompanied by the appropriate filing fee or a required Case Information Statement, may the clerk return the submitted papers to their sender. . . . [Generally] the clerk is required to file all papers which are received. The clear purpose behind this change from the prior rule, which had authorized the return of nonconforming papers by the clerk, was to protect the filing party from the risks which may attend untimely filing.

[Supra, 261 N.J. Super. at 680 (citation and internal quotation marks omitted).]

Here, the complaint should have been filed upon receipt in Monmouth County. Thereafter, the notification sent out by the clerk would have allowed plaintiff to correct the defects. None of the circumstances provided in Rule1:5-6(c) which would have triggered the requirement that the plaintiffs refile within ten days are present. Accordingly, the complaint should be reinstated.

Reversed and remanded. We do not retain jurisdiction.