THOMAS PIRK v. CITY OF EGG HARBOR COUNTY OF ATLANTIC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THOMAS PIRK,

Plaintiff-Respondent,

v.

CITY OF EGG HARBOR, COUNTY

OF ATLANTIC, and DYLAN HUTTON,

Defendants-Respondents,

and

STATE OF NEW JERSEY,

Defendant-Appellant,

and

NICHOLAS ERMAN and WILLIAM CAREW,

Defendants.

___________________________________

June 9, 2016

Submitted May 17, 2016 Decided

Before Judges Fisher and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1670-15.

Robert Lougy, Acting Attorney General, attorney for appellant (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen R. Tucker, Deputy Attorney General, on the brief).

Jerry C. Goldhagen, attorney for respondent.

PER CURIAM

Defendant, State of New Jersey, appeals from the October 27, 2015 order denying its motion for dismissal. Because we find the judge erred in applying the fictitious defendant rule, R. 4:26-4, thus permitting plaintiff, Thomas Pirk, to amend the complaint to add the State as a defendant after the expiration of the statute of limitations, we reverse.

As a result of an incident that occurred on July 22, 2013, plaintiff forwarded a notice of tort claim to the City of Egg Harbor, Atlantic County and the State of New Jersey. In the notice he described the prospective defendants as "Nicholas Erman of the Atlantic County Prosecutor's Office Police Department," William Carew and Dylan Hutton. On July 22, 2015, plaintiff filed a complaint against the City of Egg Harbor, County of Atlantic, Erman, Carew, Hutton, and John Doe fictitious defendants.

After plaintiff amended his complaint on August 18, 2015 to add the State as a defendant, the State moved to dismiss the complaint in lieu of answer.1 It argued that plaintiff's claims against it were barred by the two-year statute of limitations as the time for filing this action had expired prior to the filing of the amended complaint. The State contended that the fictitious defendant rule was inapplicable as plaintiff was aware of the identity of the State prior to the running of the statute of limitations.

In a written decision denying the motion, the judge permitted the application of the fictitious defendant rule to relate back to the amendment of the complaint, finding that

counsel exercised adequate diligence and precaution by the recitation of potential conduct referenced in Par. #10 of the original Complaint. . . . [T]he filing of the Amended Complaint 27 days after the statute and service approximately two weeks later does no prejudice to NJ, especially in view of the fact that the State will likely be defending the three individual Defendants.

We granted the State's leave to appeal.

Our review of this interlocutory order is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). After reviewing the record in light of the arguments raised on appeal and the applicable legal principles, we find the judge erred in applying the fictitious defendant rule and we reverse.

Rule 4:26-4 provides that if a defendant's true name is unknown to plaintiff, a fictitious name may be used with an appropriate identifying description. See Rutkowski v. Liberty Mut. Ins. Co., 209 N.J. Super. 140, 146-47 (App. Div. 1986). Such was not the situation here. Plaintiff knew of the allegedly culpable parties, identifying the State, in October 2013 when he filed the notice of tort claim. See DiMura v. Knapik, 277 N.J. Super. 156, 161 (App. Div. 1994) (holding that the fictitious name practice authorized by R. 4:26-4 may only be employed when a plaintiff does not know or does not have a reason to know the name or identity of an alleged culpable party). In the ensuing two years, he made no inquiry of the public entities as to the relationship between them and the individuals named in the complaint. It was not until September 2015, after the statute of limitations had expired, that plaintiff sent an inquiry form to the entities to determine the relationship among the parties. We conclude it was not appropriate to apply the fictitious defendant rule under these circumstances, and it was error to deny the State's motion to dismiss the complaint.

Reversed.

1 The County's motion to dismiss the complaint was granted; that order has not been appealed.