ELAINE DZIUBEK v. CEDAR GLEN LAKES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ELAINE DZIUBEK,

Plaintiff-Respondent,

v.

CEDAR GLEN LAKES, INC., CEDAR

GLEN LAKES, INC., BOARD OF

DIRECTORS,

Defendants-Respondents,

and

CEDAR GLEN LAKES, INC.,

Defendant/Third-Party

Plaintiff-Respondent,

v.

FRANK TYGER,

Third-Party Defendant-

Appellant.

___________________________________

July 20, 2016

Submitted April 27, 2016 Decided

Before Judges Alvarez and Ostrer.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3155-13.

Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for appellant (Richard J. Mirra, of counsel and on the briefs).

Eichen Crutchlow Zaslow & McElroy, attorneys for respondent Elaine Dziubek (Edward McElroy, on the brief).

PER CURIAM

On leave granted, defendant Frank Tyger appeals from the trial court's order allowing plaintiff Elaine Dziubek to amend her personal injury complaint to substitute Tyger for a fictitiously named defendant. Having considered the parties' arguments in light of the record and applicable law, we conclude the trial court misapplied the standards governing fictitious party practice, and therefore reverse.

I.

On December 7, 2012, Dziubek fell and was injured while walking down the steps outside the front of her home at Cedar Glen Lakes (Cedar Glen), a cooperative housing development in Whiting.1 Tyger, Cedar Glen's outside masonry contractor, had one of his employees repair the steps three days earlier. As a part of the repair process, the handrails were temporarily unbolted from the steps while the cement cured. Dziubek alleged she fell after the unbolted handrail she grabbed for support gave way.

On October 25, 2013, plaintiff filed a complaint against Cedar Glen, its board of directors, and various fictitious persons and business entities. She alleged that defendants negligently "constructed, maintained, repaired and/or supervised" the premises, causing her to fall and suffer injury. Although Dziubek later testified that she noticed a young man repairing the steps before her fall, she made no effort before filing her complaint to determine his identity.

In its answer, Cedar Glen did not identify Tyger as a party who should be joined in its statement pursuant to Rule 4:5-1(b)(2). However, in its February 2014 responses to Dziubek's form interrogatories, Cedar Glen disclosed that Tyger had performed the masonry work. It did so by producing Tyger's billing statement, as well as a memorandum by Cedar Glen's maintenance supervisor, Glenn Houman, stating that he gave a work order "to our mason, Frank Tyger. . . ." Houman also asserted in the memorandum that he inspected Tyger's work; "caution tape was on both railings"; and he issued a work order for Cedar Glen's maintenance workers to re-anchor the handrail posts on December 6, 2012. In an April 2014 response to Dziubek's supplemental interrogatories inquiring about relevant contracts or agreements, Cedar Glen stated, "Cedar Glen Lakes has had an unwritten agreement with a contractor, Frank Tyger of Barnegat, New Jersey to perform certain masonry work."

The parties do not dispute that Cedar Glen, and not Tyger, assumed responsibility for re-anchoring the handrail. In response to the question whether Cedar Glen intended to assert a third-party action, Cedar Glen did not identify Tyger, but stated "various separate defenses have been pled on our behalf including . . . the comparative fault or negligence of third persons . . . ."

Houman, Dziubek, and one of Dziubek's neighbors, John Mago, were deposed in January 2015, roughly a month after the two-year statute of limitations had expired. N.J.S.A. 2A:14-2. Whether caution tape was placed on the unanchored railings, and who had responsibility for doing so, emerged as significant issues in the case. Dziubek testified that the young man she saw working on the steps did not apply caution tape after he left. Mago, who assisted Dziubek after she fell, also testified there was no caution tape on the railings.

Houman testified that it was "standard procedure" that the retained mason place yellow caution tape across unanchored railings to alert people not to use them. In response to Dziubek's counsel's specific inquiries, Houman identified Tyger as the mason on the job.

In February 2015, Cedar Glen obtained leave to file a third-party complaint for contribution and indemnification from Tyger. The third-party complaint was filed the same month, and Tyger filed his answer on April 1, 2015.

Tyger was deposed on July 17, 2015. Tyger explained that his employee was responsible for making the repairs at plaintiff's residence. He stated that his employees are responsible for installing caution tape, although Cedar Glen usually supplied it. Tyger did not personally know whether his employee installed caution tape after he repaired Dziubek's steps, but he stated that it was his employee's standard practice to do so. Tyger confirmed that it was Cedar Lakes's responsibility, not his, to re-anchor the railings into the masonry once it cured.

On July 22, 2015, Dziubek sought leave to amend her complaint to substitute Tyger for a fictitiously named defendant. In his certification in support of the motion, Dziubek's counsel referred to the January 8, 2015 depositions of Dziubek and Houman, and Houman's testimony that "Mr. Tyger and/or his employees performed the work requested on December 4, 2012." Counsel stated, "Based upon this new information, plaintiff now seeks to amend her Complaint to add Frank Tyger as an additional defendant."

Notwithstanding his reliance on the January 2015 depositions, Dziubek's counsel asserted at oral argument that he lacked a sufficient good faith basis to assert a claim against Tyger until Tyger himself was deposed in July 2015. Counsel contended he exercised due diligence in ascertaining Tyger's identity and determining to assert a claim against him on Dziubek's behalf. Counsel argued that Cedar Glen's answer, and its response to the interrogatory regarding third-party complaints, failed to clearly apprise him of Tyger's potential liability.

Tyger opposed the motion, asserting that Dziubek did not act with due diligence. He noted that Cedar Glen's February and April 2014 interrogatory answers referred to the "comparative fault or negligence of third persons." Cedar Glen produced Houman's memorandum, which disclosed that Tyger was hired to repair the steps. Counsel also noted that the dispute over whether the mason put up caution tape was clearly raised in Dziubek's and Houman's depositions in January 2015.

Relying primarily on Claypotch v. Heller, Inc., 360 N.J. Super. 472 (App. Div. 2003), the court granted plaintiff's motion for leave to amend her complaint. The court found that plaintiff had been diligent in attempting to ascertain Tyger's identity before the limitations period expired, and Tyger would not be prejudiced if joined as a direct defendant. The court subsequently denied Tyger's motion for reconsideration.

In December 2015, the court granted Cedar Glen's motion for summary judgment dismissal based on its statutory immunity from claims for ordinary negligence pursuant to N.J.S.A. 2A:62A-13.

Thereafter, we granted Tyger's motion for leave to appeal. Renewing his argument that Dziubek did not exercise requisite due diligence, Tyger contends the trial court erred in allowing Dziubek to amend her complaint to substitute him for a fictitiously named party.

II.

The decision to grant leave to amend a pleading rests in the sound discretion of the motion judge. Kernan v. One Washington Park Urban Renewal Assoc., 154 N.J. 437, 456-57 (1998); R. 4:9-1. However, we may reverse a trial court's discretionary order if it "was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). We also need not defer to a discretionary decision that inexplicably departs from established policies or rests on an impermissible basis. Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A.

We begin our analysis with a review of the fictitious party practice rule. Rule 4:26-4 provides, in relevant part

In any action, . . . if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained.

A plaintiff invoking fictitious party practice must satisfy four requirements. First, the plaintiff must not know the identity of the defendant said to be named fictitiously. R. 4:26-4. Second, the fictitiously-named defendant must be described with sufficient detail to allow identification. Ibid. Third, a party seeking to amend a complaint to identify a defendant previously named fictitiously must provide proof of how it learned the defendant's identity. Ibid.

Fourth, although not expressly stated in the rule, the party invoking the rule must act diligently in attempting to identify the defendant. Matynska v. Fried, 175 N.J. 51, 53 (2002); Claypotch, supra, 360 N.J. Super. at 479-80; Mears v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 629 (App. Div. 1997). The rule is unavailable to a defendant who, through diligence, could have identified a defendant before filing the complaint. Claypotch, supra, 360 N.J. Super. at 479-80; Mears, supra, 300 N.J. Super. at 629. The plaintiff must also diligently seek to identify the defendant before the limitations period has expired or within a reasonable time thereafter. Matynska, supra, 175 N.J. at 53; Mears, supra, 300 N.J. Super. at 629.

The purpose of the rule is "to protect a diligent plaintiff who is aware of a cause of action against a defendant but not the defendant's name, at the point at which the statute of limitations is about to run." Greczyn v. Colgate-Palmolive, 183 N.J. 5, 17-18 (2005). Upon learning the real name of a defendant, the diligent plaintiff may seek permission to file an amended complaint, specifically identifying the defendant who was previously named fictitiously. R. 4:26-4. "Fictitious-party practice renders the initial filing against the identified but unnamed defendant timely in the first instance, subject only to diligent action by the plaintiff to insert defendant's real name." Greczyn, supra, 183 N.J. at 17 n.3. In that respect, the amended complaint substituting the real name of a fictitiously named party is said to "relate back" to the date the complaint was originally filed. Claypotch, supra, 360 N.J. Super. at 480.

A showing of diligence is a threshold requirement for resort to fictitious party practice. See Matynska, supra, 175 N.J. at 53 (referring to the "due diligence threshold"); Claypotch, supra, 360 N.J. Super. at 479-80 (stating that defendant may use fictitious name "only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint.") (emphasis added).

If a plaintiff did not use diligence, and a court still permitted him or her to amend his or her original complaint to name a previously unknown defendant, it would not only fail to penalize delay on the plaintiff['s] part, but would also disregard considerations of essential fairness to [the] defendant[], thereby violating the purpose behind the statute of limitations.

[Mears, supra, 300 N.J. Super. at 630 (internal quotation marks and citations omitted).]

Where the Court found that a party had acted diligently, the Court considered the absence of prejudice to the defendant as a factor supporting its conclusion that allowing an amendment served the interests of justice and fairness. Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 122-23 (1973). However, "[t]here cannot be any doubt that a defendant suffers some prejudice merely by the fact that it is exposed to potential liability for a lawsuit after the statute of limitations has run." Mears, supra, 300 N.J. Super. at 631. We recognize that the court in Claypotch held that "[i]n determining whether a plaintiff has acted with due diligence . . . a crucial factor is whether the defendant has been prejudiced by the delay . . . ." Claypotch, supra, 360 N.J. Super. at 480. However, the absence of prejudice to defendant does not necessarily imply that plaintiff has exercised due diligence.2

A party seeking to invoke fictitious party practice bears the burden of demonstrating compliance with the Rule. See Giovine v. Giovine, 284 N.J. Super. 3, 38 (App. Div. 1995) (Skillman, J.A.D., concurring and dissenting) (citing Lopez v. Swyer, 62 N.J. 267, 276 (1973)) ("A party who seeks to avoid the bar of a statute of limitations by invocation of the discovery rule or other comparable doctrine has the burden of proof.").

B.

Applying these principles, we are constrained to reverse the trial court's order. Dziubek failed to demonstrate that she acted diligently in identifying the person whom she alleged negligently constructed or repaired her steps. She has presented no evidence regarding her efforts before she filed the complaint that would have entitled her to resort to fictitious party practice in the first place. She knew that a "young man" appeared at her building in early December to repair the steps. She also knew the railing fell away, and there were no warning signs. Yet, there is no evidence that she ever asked Cedar Glen's management who the young man was, or for whom he worked. See Cardona v. Data Sys. Computer Ctr., 261 N.J. Super. 232, 234-35 (App. Div. 1992) (affirming dismissal of complaint where plaintiff and his counsel failed to make an "easy and routine inquiry" to determine defendant's identity). In light of Cedar Glen's subsequent production of Houman's memorandum and Tyger's bill, it is clear that had she asked, she would have learned of Tyger's identity. On this basis alone, Dziubek's motion should have been denied.

Furthermore, Dziubek failed to act with due diligence after she filed the complaint. She and her attorney were placed on notice as early as February 2014, by Cedar Glen's form interrogatory responses and document production, that Tyger was the mason hired to do the job. According to Houman's memorandum, caution tape was put up on the site and Houman put in a work order to have the rails re-anchored by Cedar Glen's own workers. Based on those disclosures, Dziubek or her counsel was sufficiently informed to seek leave to amend her complaint. Had she done so in approximately the next ten months, her complaint against Tyger would have been within the limitations period, which expired December 6, 2014.

Dziubek did not seek an amendment after she, Mago, and Houman were deposed in January 2015. By that point, the respective responsibilities of the mason and Cedar Glen had crystalized. Houman admitted that Cedar Glen assumed responsibility for re-anchoring railings and the mason was responsible for putting up caution tape. Both Dziubek and Mago insisted there was no tape. Yet Dziubek did not seek to amend her complaint to name Tyger. The following month, Cedar Glen filed a third-party complaint against Tyger. Dziubek and her counsel still did not act. Only after Tyger was deposed in July 2015, did Dziubek's counsel file a motion seeking to name Tyger in place of a fictitiously named party.

Dziubek's counsel also renews his argument that he "pursued and accomplished" Tyger's deposition before seeking to amend to ensure plaintiff's complaint was not frivolous. The argument is unpersuasive on several grounds. First, Dziubek had already sued the person who constructed or repaired the steps; she simply failed to identify him. Second, the argument lacks factual support in the record. Counsel's certification in support of the motion to amend did not mention the July 2015 deposition. Rather, he certified that he sought leave to amend based upon the information obtained in the depositions several months earlier. Furthermore, there is no evidence that Dziubek sought Tyger's deposition, particularly since Cedar Glen's counsel conducted direct examination. Finally, Dziubek does not indicate what revelations in Tyger's deposition rendered her complaint against him non-frivolous. Indeed, Tyger testified that he was not present, and had no personal knowledge as to whether tape was placed or not; he could only assert that it was standard practice. No later than the January 2015 depositions, it was clear that a good faith claim could be made against Tyger, for his agent's alleged negligent failure to install warning tape, which Houman said was Tyger's responsibility.

We reject Dziubek's argument that Cedar Glen's omission, in its Rule 4:5-1 statement, of any third party who should be joined, excused Dziubek's delay. Even if Cedar Glen should have named its outside contractor, the omission was corrected in its discovery responses shortly thereafter. Cedar Glen's delay in filing its third-party complaint does not erase Dziubek's independent obligation to Tyger to act diligently to identify the defendant she named fictitiously in her own pleading.

In addition, the trial court placed undue weight on its determination that Tyger suffered no prejudice from the amendment. Tyger certainly suffered the prejudice of facing a complaint after the statute of limitations had run. But he was also deprived of the opportunity to participate in the depositions of Dziubek, Houman, and Mago. This is a form of prejudice, notwithstanding that Tyger's counsel conceded that he was prepared to attend mandatory non-binding arbitration of the case, and did not seek additional depositions.

Tyger suffered an additional form of prejudice arising out of the late filing. Tyger did not perform the repair work or personally observe whether the caution tape was in place. He depended on the recollection of his employee. Tyger stated in his July 2015 deposition that he had not talked to his employee about the circumstances of a repair he performed two-and-a-half years earlier. Even if he claimed to recall thereafter, his recollection would be subject to greater question than if he had been asked earlier upon the filing of a timely complaint against Tyger.

We recognize that the panel in Claypotch, in determining that the plaintiff acted diligently and the defendant was not prejudiced, placed weight on the fact that the fictitiously named defendant whom plaintiff sought to identify had already been brought into the case as a third-party defendant. However, Claypotch and this case differ in significant respects.

The plaintiff in Claypotch, supra, 360 N.J. Super. at 477, suffered personal injuries while operating an industrial machine. He sued Heller, Inc., reasonably believing that it manufactured the machine, as Heller's name prominently appeared on it. Id. at 478. The plaintiff also sued fictitiously named defendants described as other manufacturers, distributors, designers, repairers and sellers of the machine. Ibid. After the statute of limitations had run, Heller filed a third-party complaint against a company named FICEP, without expressly asserting that FICEP was the manufacturer; and FICEP filed an answer, without identifying itself as manufacturer. Id. at 478-80. However, sometime after FICEP filed its answer, Claypotch learned that FICEP was indeed the manufacturer. Id. at 482. Claypotch's counsel then delayed more than nine months before moving to name FICEP in place of a fictitiously named defendant. Ibid.

We found that the plaintiff had acted with sufficient diligence, particularly inasmuch as FICEP was already in the case, and had notice of the plaintiff's injury and its potential liability. Id. at 483. Furthermore, FICEP actively participated in discovery. Ibid. We held that FICEP should have anticipated plaintiff would seek to assert a claim against it directly. Ibid.

Although Tyger was named a third-party defendant, his potential risk at that point was not equivalent to that of FICEP. Tyger's potential liability to indemnify or contribute to Cedar Glen was limited by Cedar Glen's own immunity. Dziubek's direct complaint arguably subjected Tyger to greater exposure. Moreover, unlike the plaintiff in Claypotch, Dziubek's counsel was on notice of Tyger's role over a year before the filing of the third-party complaint, but did not act. As a result of the delay, Tyger did not participate in the January 2015 depositions, nor was he able to inquire of his employee when his recollection likely would have been fresher.

We find more analogous such cases as Johnston v. Muhlenberg Regional Medical Center, 326 N.J. Super. 203, 204-08 (App. Div. 1999), where the plaintiff waited a year after discovering the identity of a fictitiously named defendant before seeking to file an amended complaint. We affirmed the dismissal of the complaint, noting that the defendant "was prejudiced by the passage of time, even if only in the context of her right to repose," which was "magnified" by the plaintiff's "hiatus of about a year between discovery of [the defendant's] identity and service of the complaint . . . ." Id. at 208.

In sum, Dziubek did not act with due diligence to substitute Tyger for the fictitiously named party. Consequently, the trial court erred in granting her leave to amend.

Reversed.

1 In her deposition, plaintiff asserted the fall occurred on December 6, 2012. However, for purposes of our opinion, we will rely on the allegation in her complaint.

2 While it is true that greater diligence by plaintiff will generally result in lesser prejudice to defendant (because there will be correspondingly less delay in substituting the defendant for a fictitious party), the converse is not necessarily true. Lesser prejudice to defendant does not necessarily imply greater diligence by plaintiff. Asserting that it does is an example of "affirming the consequent" or "converse error." Prejudice may be a function of lack of diligence, but diligence is not a function of lack of prejudice.