I.K.M., INC v. LAW OFFICE OF JOHN D. KOSYLO

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5072-17T2

I.K.M., INC.,

         Plaintiff-Appellant,

v.

LAW OFFICE OF
JOHN D. KOSYLO,

     Defendant-Respondent.
_____________________________

                   Submitted September 25, 2019 – Decided October 18, 2019

                   Before Judges Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Gloucester County, Docket No. L-
                   1724-14.

                   Peter A. Ouda, attorney for appellant.

                   Gregory Charles Dibsie, attorney for respondent.

PER CURIAM
      Plaintiff I.K.M., Inc. appeals from a May 25, 2018 Law Division order,

denying its motion to vacate an order dismissing its legal malpractice complaint

against its former attorney, defendant John D. Kosylo. We affirm.

      We glean these facts from the record. In September 2012, Kosylo filed a

breach of contract complaint on plaintiff's behalf against plaintiff's landlord, 825

Realty, LLC, and plaintiff's sub-lessee, OzSa, LLC, in relation to an October 8,

2008 sub-lease of lease agreement entered into by all three parties.             On

September 12, 2013, the complaint was dismissed on an unopposed summary

judgment motion.

      Although plaintiff's corporate charter had been revoked since November

16, 2012, and plaintiff therefore lacked standing to pursue the claim, the specific

reason for granting the summary judgment motion is unclear in the record. The

moving papers submitted in support of the motion relied on plaintiff's revoked

corporate charter as well as plaintiff's execution of a December 2009 assignment

of lease and assumption agreement. The assignment and assumption agreement

terminated the lease between plaintiff and its landlord in favor of its sub-lessee,

which agreed to assume all of plaintiff's obligations for the remaining lease term.

Although the parties refer to both grounds, the record does not include the court's

reasoning in granting the summary judgment motion.


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      In June 2014, Kosylo attempted to have the breach of contract complaint

reinstated by moving for reconsideration on the ground that neither he nor

plaintiff had been served with the summary judgment motion. However, the

motion for reconsideration was denied.1 Thereafter, on December 1, 2014,

plaintiff filed a malpractice complaint against Kosylo, alleging he "deviat[ed]

from accepted standards of practice" by failing "to communicate to his client the

status of the [underlying] matter[,]" and failing to oppose the summary judgment

motion, resulting in the "irretrievabl[e]" loss of plaintiff's claims. Kosylo filed

a contesting answer with affirmative defenses, and later moved for summary

judgment on the eve of trial.

      In his statement of material facts, see R. 4:46-2(a), which was unsupported

by any certification, Kosylo asserted that he had filed the breach of contract

complaint on plaintiff's behalf unaware that in December 2009, an assignment

of lease and assumption agreement had been executed by Dennis and Kathy

Ravas, plaintiff's principals. The effect of the December 2009 agreement was

to effectively sign over any and all rights plaintiff possessed under the lease and

sub-lease agreement to OzSa, LLC. According to Kosylo, in a subsequent


1
    Neither the moving papers nor the order denying the motion for
reconsideration was included in the record.


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meeting with the Ravases and Peter Sideris, Kathy Ravas's brother, the Ravases

acknowledged executing the agreement on plaintiff's behalf. 2 Thereafter, upon

contacting the Ethics Board for advice, Kosylo moved for reconsideration based

on improper service as it would have been an "ethical violation" for him to deny

that plaintiff executed the agreement. Additionally, Kosylo indicated plaintiff's

corporate charter remained suspended.

      In opposition, plaintiff asserted that had the summary judgment motion

been opposed, it would have been denied because the agreement relied upon to

grant the motion was a forgery. In support, plaintiff submitted a certification

prepared by Kathy Ravas, averring that the purported agreement was never

signed by her or her husband, and neither ever admitted signing the agreement

to Kosylo. According to Kathy, 3 Kosylo never advised them about the summary

judgment or reconsideration motions so that they could "have advised [the] court

of the fraud that had taken place[,]" and Kosylo never told them "he could[ not]

ethically handle the case" so that they could "have gone to another attorney."


2
  Kosylo submitted a certification dated January 16, 2017, prepared by Sideris
in which he admitted being present in a meeting with the Ravases and Kosylo
during which the Ravases "both acknowledged that the signatures were genuine
and that they had signed the document."
3
  Hereafter, we refer to the Ravases by their first names to avoid any confusion
created by their common surname and intend no disrespect by this informality.
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Kathy also certified that an application for reinstatement of plaintiff's corporate

charter was pending as of December 1, 2016. Additionally, plaintiff's attorney

submitted a supporting certification, asserting that "no expert testimony" was

"required in th[e] case" because the allegations were "so basic" and plaintiff

intended to prove its allegations based on common knowledge. Counsel averred,

however, that "[p]laintiff should be allowed to use [an expert] if they decide to"

at trial because he was never served with "a demand for an expert[.]"

      Following oral argument, on January 20, 2017, three days before the

scheduled trial date, the motion judge granted the summary judgment motion

and dismissed plaintiff's complaint without prejudice. In an oral decision, the

judge explained "[t]here[] [was] no dispute" plaintiff was still "not a recognized

corporation . . . in the State of New Jersey[,]" and therefore lacked standing to

pursue the claim. According to the judge, although an application was pending,

as a corporation, "in order to sue and be sued in the State . . . , you have to be

properly recognized, active and otherwise compliant with the laws of the State."

The judge noted, however, that in the event the corporate charter and the

complaint were reinstated, then "an expert would be required if th[e] matter were

tried" based on Kosylo relying on "his communications with the ethics

committee" as his defense.


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      Over fourteen months later, on April 6, 2018, plaintiff moved to vacate

the dismissal of the complaint, and restore the matter to the active trial list, with

ninety days to complete discovery.         In support, Dennis certified that the

corporate charter was reinstated, effective June 30, 2017, and a business

registration certificate was issued on November 6, 2017. Kosylo opposed the

application and cross-moved to dismiss the complaint with prejudice.                In

support, Kosylo essentially certified to the representations contained in the

statement of undisputed material facts previously submitted in support of his

original motion for summary judgment.

      Following oral argument, on May 25, 2018, the judge denied plaintiff's

motion, and granted Kosylo's cross-motion, thereby dismissing plaintiff's

complaint with prejudice.       In an oral opinion, memorialized in written

statements of reasons accompanying the orders, the judge explained that "the

essence of the . . . motion to vacate the prior order dismissing [the complaint

without prejudice was] governed by [Rule] 4:50-1 which [was] not addressed or

briefed in [p]laintiff's moving papers." In addition, according to the judge,

"[t]he doctrine of laches" also applied. Applying these principles, the judge

concluded that plaintiff's delay in reinstating its corporate charter "well after the

litigation began" was inexcusable.


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      The judge stated:

            There is no explanation as to why the ministerial
            procedure involved in reinstating the [p]laintiff's
            corporate charter was not done more timely or why . . .
            [p]laintiff waited for [fourteen] months to seek to set
            aside the dismissal.        The process involves the
            completion of a one[-]page form which is filed with the
            Secretary of State. However, the reinstatement was not
            completed until June 30, 2017. Nonetheless[,] . . .
            [p]laintiff apparently did nothing to revive the
            complaint until filing the present motion . . . . In the
            very limited certifications filed with the court, nothing
            is stated to explain this serious delay.

The judge concluded "there was no diligence[,]" or "sense of urgency[,]" and to

restore plaintiff's complaint "without any basis in law" would be "unfair and

unjust."

      The judge continued:

            Additionally, although . . . [p]laintiff supplied an
            Affidavit of Merit, an expert report has not been
            supplied. An expert report is needed in a malpractice
            action. If the [j]udgment is vacated and . . . [p]laintiff's
            case is reopened, . . . [p]laintiff will not be able to prove
            exceptional circumstances that will warrant a reopening
            of discovery. Trial has been scheduled twice in this
            case, thus . . . [p]laintiff had ample time to conduct
            discovery and was afforded a careful preparation
            process.

See R. 4:24-1(c) (allowing "[n]o extension of the discovery period . . . after a[]

. . . trial date is fixed, unless exceptional circumstances are shown.").


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      According to the judge, "the most telling conduct" was plaintiff's "pattern"

of ignoring "[c]ourt [o]rders" and deadlines.       The judge determined that

plaintiff's conduct "caus[ed] a waste of judicial resources," and was "harmful"

to defendant. In that regard, the judge noted:

            Defendant hasn't articulated and hasn't complained with
            a specific basis of prejudice.

                 However, . . . more than a year, has been . . .
            wasted by . . . [p]laintiff in reinstating the action.

                   And that time has caused memories to continue
            to become stale, witnesses' availab[ility] is questioned
            and there is, no doubt, a diminution in the ability of
            . . . [d]efendant, to . . . obtain the attention that they
            need in the case because those factors have interrupted
            the fresh flow of evidence.

      On appeal, plaintiff argues the judge erred in denying its motion to

reinstate the complaint and extend discovery because there was "no time limit"

set for moving to restore once the corporate charter was reinstated. Plaintiff

argues further that the judge erred in dismissing its complaint with prejudice

because it was relying on the common knowledge doctrine, which did not

require expert testimony. We agree with the judge that plaintiff's delay was

inexcusable. Because we affirm on that basis, we need not address plaintiff's

remaining arguments.



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      Under Rule 4:50-1(a), "upon such terms as are just, the court may relieve

a party . . . from a[n] . . . order" for "excusable neglect[.]" "Carelessness may

be excusable when attributable to an honest mistake that is compatible with due

diligence or reasonable prudence." Mancini v. EDS ex rel. N.J. Auto. Full Ins.

Underwriting Ass'n,  132 N.J. 330, 335 (1993). A motion to vacate an order

under Rule 4:50-1(a) "shall be made . . . not more than one year after the . . .

order . . . was entered . . . ." R. 4:50-2. "The [r]ule is 'designed to reconcile the

strong interests in finality . . . and judicial efficiency with the equitable notion

that courts should have authority to avoid an unjust result in any given case.'"

N.J. Auto,  132 N.J. at 334 (quoting Baumann v. Marinaro,  96 N.J. 380, 392

(1984)). However, "[c]ourts should use Rule 4:50-1 sparingly," limited to

"exceptional situations . . . in which, were it not applied, a grave injustice would

occur." Hous. Auth. of Morristown v. Little,  135 N.J. 274, 289 (1994).

      A "trial court's determination under the rule warrants substantial

deference, and should not be reversed unless it results in a clear abuse of

discretion." US Bank Nat'l Ass'n v. Guillaume,  209 N.J. 449, 467 (2012). An

abuse of discretion "arises when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" Iliadis v. Wal-Mart Stores, Inc.,  191 N.J. 88, 123-24


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                                         9
(2007) (quoting Flagg v. Essex Cty. Prosecutor,  171 N.J. 561, 571 (2002)).

Further, "[t]he party seeking relief bears the burden of proving that events have

occurred subsequent to the entry of [an order] that, absent the relief requested,

will result in 'extreme' and 'unexpected' hardship." Hous. Auth. of Morristown,

 135 N.J. at 285-86 (quoting Mayberry v. Maroney,  558 F.2d 1159, 1163 (3d Cir.

1977)).

      Here, plaintiff failed to meet its burden.     As the judge pointed out,

plaintiff's motion was untimely because it was filed more than one year after the

order was entered, and plaintiff failed to even articulate excusable neglect or

demonstrate due diligence or reasonable prudence to warrant relief from the

order. Thus, we discern no abuse of discretion, clear or otherwise, to warrant

intervention.

      Likewise, we agree with the judge that plaintiff's motion to vacate the

dismissal was barred by the doctrine of laches. "That doctrine is invoked to

deny a party enforcement of a known right when the party engages in an

inexcusable and unexplained delay in exercising that right to the prejudice of

the other party." Knorr v. Smeal,  178 N.J. 169, 180-81 (2003) (citing In re

Kietur,  332 N.J. Super. 18, 28 (App. Div. 2000)). "Laches may only be enforced

when the delaying party had sufficient opportunity to assert the right in the


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proper forum and the prejudiced party acted in good faith believing that the right

had been abandoned." Id. at 181 (citing Dorchester Manor v. Borough of New

Milford,  287 N.J. Super. 163, 172 (Law Div. 1994), aff'd,  287 N.J. Super. 114

(App. Div. 1996)).

      While "[t]he time constraints for the application of laches 'are not fixed

but are characteristically flexible[,]'" ibid. (quoting Lavin v. Bd. of Educ.,  90 N.J. 145, 151 (1982)), "[t]he key factors to be considered in deciding whether

to apply the doctrine are the length of the delay, the reasons for the delay, and

the 'changing conditions of either or both parties during the delay.'" Ibid.

(quoting Lavin,  90 N.J. at 152). "The core equitable concern in applying laches

is whether a party has been harmed by the delay." Ibid. (citing Lavin,  90 N.J.

at 152-53). "[W]hether laches should be applied depends upon the facts of the

particular case and is a matter within the sound discretion of the trial court."

Mancini v. Twp. of Teaneck,  179 N.J. 425, 436 (2004) (quoting Garrett v. Gen.

Motors Corp.,  844 F.2d 559, 562 (8th Cir. 1988)).

      Given these principles, we again agree with the judge that plaintiff's

unreasonable delay, for which it offered no plausible justification, was

inexcusable and Kosylo was harmed by the delay. Thus, by application of the

doctrine of laches, plaintiff forfeited his right to pursue the complaint, and we


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discern no abuse of discretion in the judge's decision to dismiss the complaint

with prejudice.

      Affirmed.




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