STEVEN CHOKAS v. MAST CONSTRUCTION

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4212-19T2

STEVEN CHOKAS and
KIM CHOKAS, Per Quod,

Plaintiffs-Appellants,

MAST CONSTRUCTION,
TERMINAL CONSTRUCTION,
KAS CONSTRUCTION
CONSULTANTS, LLC, and
KENVIL UNITED CORP.,

Defendants,

and

TERRACON,

Defendant-Respondent,

Argued October 5, 2020 - Decided November 6, 2020

Before Judges Sabatino, Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2267-18.
Nehal Modi argued the cause for appellant (The Haddad
Law Firm, PC, attorneys; Nehal Modi, on the brief).

Joseph M. Gaul, Jr. argued the cause for respondent
(Gaul, Baratta, & Rosello, LLC, attorneys; Joseph M.
Gaul, Jr., on the brief).

PER CURIAM

On leave granted, we consider whether plaintiffs complied with the

requirements of the fictitious pleading rule, Rule 4:26-4, permitting them to

amend their complaint to include defendant Terracon Consultants, Inc.,1 an

engineering firm, after the expiration of the statute of limitations. Although the

trial court found plaintiffs provided a sufficient fictitious description of

Terracon in their complaint, the court concluded plaintiffs failed to exercise the

due diligence required under the rule. Therefore, the court granted Terracon's

motion for dismissal.2 Because we are satisfied plaintiffs were sufficiently

diligent in pursuing discovery as to Terracon's identity under the presented

circumstances, we reverse.

1
Terracon Consultants, Inc. was improperly pled in the amended complaint as
Terracon.
2
We also reverse the denial of plaintiffs' motion for reconsideration.

A-4212-19T2
2
On November 4, 2016, plaintiff Steven Chokas 3 was injured when he fell

through a rebar beam while working at the 350,000 square foot site for the

construction of a high school in Secaucus, New Jersey. At the time, Steven was

employed by Nordic Contracting Co., Inc. as a concrete laborer. Within weeks

of the accident, Steven applied for workers compensation benefits.

In September 2017, plaintiffs retained counsel to represent them in a

personal injury suit. On October 3, 2017, plaintiffs filed an Open Public Records

Act (OPRA), N.J.S.A. 47:1A-1 to -13, request with Secaucus. Plaintiffs

requested copies of all permits pulled for construction at the site as well as

insurance and other contact information for all contractors and subcontractors

involved in the project. The records provided from Secaucus disclosed the

identity of nine contractors associated with the project, including the general

contractor and project manager, defendant Terminal Construction Corporation

and the project owner, defendant Mast Construction Services, Inc. The records

further disclosed that the construction site was located on land owned by the

Hudson County Improvement Authority (HCIA). The records did not identify

Terracon.

3
Kim Chokas, as Steven's wife, asserts a per quod claim.
A-4212-19T2
3
On June 11, 2018, plaintiffs filed their initial Complaint naming Mast,

ABC Company 1-10, Terminal, and ABC Company 11-20 as defendants. The

fictitious entities were described as "responsible for organizing, maintaining,

supervising and otherwise controlling the safety of the project, the site and

premises, and for directing the work and other activities of all general

contractors, construction managers, subcontractors, safety engineers, architects,

design engineers, steel fabricators, and tradesmen and their respective agents,

servants and employees." Plaintiffs alleged defendants' negligence in failing to

maintain a safe construction site caused Steven to sustain injuries.

In September 2018, counsel for Mast identified two additional contractors

associated with the project: KAS Construction Consultants, LLC and Kenvil

United Corporation. Mast's counsel stated that "[s]hould we learn of the identity

of parties we believe should be in the case, we will advise."

Thereafter, in October 2018, plaintiffs filed their First Amended

Complaint adding defendants KAS, Kenvil, and ABC Company 21-30.

Plaintiffs described ABC Company 21-30 as "subcontractors for the project at

the subject facility pursuant to its contract with MAST CONSTRUCTION

and/or ABC COMPANY 1-10 (being fictitious entities unknown at this time)

and/or ABC COMPANY 11-20 (being fictitious entities unknown at this time)

A-4212-19T2
4
and/or others." Plaintiffs further described ABC Company 21-30 as owing a

duty of care to Steven and "responsible for organizing, maintaining, supervising,

and otherwise controlling the safety of the project, the site and premises, and for

directing the work and other activities of all general contractors, construction

managers, subcontractors, safety engineers, architects, design engineers, steel

fabricators, and tradesmen and their respective agents, servants, and

employees."

Defendants Mast, Terminal, Kenvil, and KAS answered plaintiffs'

discovery requests between March and June 2019. None of the defendants

mentioned Terracon in their discovery responses.

On September 5, 2019, Mast amended its answers to interrogatories to

include reports from Terracon reflecting Terracon had inspected the area of the

construction site where the accident occurred. This was the first time Terracon's

involvement and identity were disclosed to plaintiffs.

Under a case management order dated September 27, 2019, the court

extended discovery and permitted plaintiffs to file a Second Amended

Complaint to add Terracon as a defendant. Plaintiffs filed the complaint that

day and served Terracon on October 1, 2019.

A-4212-19T2
5
Terracon moved to dismiss the Second Amended Complaint, arguing it

was time-barred as the statute of limitations had expired and plaintiffs had not

complied with the requirements of Rule 4:26-4. Terracon contended the First

Amended Complaint did not sufficiently describe ABC Company 21-30 to later

identify and include Terracon. Terracon further argued plaintiffs failed to

exercise due diligence in discovering its identity because plaintiffs did not file

an OPRA request with the HCIA.

In response, plaintiffs asserted the First Amended Complaint sufficiently

described ABC Company 21-30 as performing inspections and supervising

control of the project, permitting them to later identify this fictitious party as

Terracon. Plaintiffs also disputed they failed to exercise due diligence.

Plaintiffs described the size and complexity of the construction project

and noted none of the named defendants had identified Terracon in their initial

discovery responses. They stated they filed an OPRA request with Secaucus

seeking the identity of all entities and individuals who worked on the project,

and filed their initial complaint based on the information received in response

to their request. Furthermore, plaintiffs contended they only learned of

Terracon's identity after Mast amended its written discovery responses.

A-4212-19T2
6
Plaintiffs asserted they immediately sought leave to amend their complaint to

include Terracon – ten months after the statute of limitations lapsed.

On March 4, 2020, the trial court issued an order and memorandum of

decision granting Terracon's motion. Although the judge found that plaintiffs'

First Amended Complaint sufficiently described Terracon under Rule 4:26-4,

she concluded that plaintiffs did not exercise due diligence in attempting to

discover Terracon's identity. The court advised that plaintiffs could have filed

an OPRA request with the HCIA after learning it owned the construction site,

"check[ed] with" Steven's employer, Nordic, and followed up with their OPRA

request to Secaucus after receiving incomplete responses. Because plaintiffs

failed to exercise due diligence, the court concluded they were not entitled to

pursue their claim against Terracon under Rule 4:26-4.

Upon receipt of the court's ruling, plaintiffs filed an OPRA request with

the HCIA seeking documentation for all permits issued for the construction site,

all contractor and subcontractor insurance policies, and the names and addresses

of all contractors and subcontractors involved in the project. The HCIA

responded to the request. None of the documents identified Terracon. Plaintiffs

also sent a similar request to Nordic. There was no response.

A-4212-19T2
7
Plaintiffs moved for reconsideration, arguing they exercised due diligence

and informing the court of their correspondence with the HCIA and Nordic,

which failed to reveal the identity of Terracon.

On June 11, 2020, the court issued an order and memorandum of decision

denying plaintiffs' motion. The court found plaintiffs' efforts regarding the

HCIA and Nordic were untimely. If plaintiffs had presented the court with the

information in their initial submissions opposing the motion to dismiss, they

could have demonstrated their inability to determine Terracon's identity.

Because plaintiffs were not diligent, they were not entitled to relief from the bar

of the statute of limitations under Rule 4:26-4.

We granted plaintiffs leave to appeal on July 23, 2020.

Our review of an order dismissing a complaint as barred by the statute of

limitations is de novo. See Estate of Hainthaler v. Zurich Commercial Ins., 387 N.J. Super. 318, 325 (App. Div. 2006). Thus, the 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). We review a trial court's decision to grant

or deny an ensuing motion for reconsideration for an abuse of discretion.

Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).

A-4212-19T2
8
On appeal, plaintiffs renew their argument that they were diligent in

discovering Terracon's identity. They also contend that Terracon will not be

prejudiced if added to the suit because plaintiffs have provided Terracon with

all discovery, pleadings and correspondence related to the case and Terracon's

counsel has appeared at all of the court proceedings and depositions.

Terracon argues the court was correct in its finding that plaintiffs were not

diligent. Terracon also asserts it will be prejudiced if required to defend

plaintiffs' suit because it has not filed an answer and has not had an opportunity

to locate witnesses and project files or prepare and serve discovery demands.

N.J.S.A. 2A:14-2(a) requires an action for personal injuries to be filed

within two years after the accrual of the cause of action. The principal

consideration underlying the enactment of statutes of limitations is one of

fairness to defendants. Lopez v. Swyer, 62 N.J. 267, 274 (1973).

Still, our courts also recognize the significant policy interest favoring the

resolution of claims on their merits. Viviano v. CBS, Inc., 101 N.J. 538, 547-

49 (1986) (noting that "[j]ustice impels strongly towards affording the plaintiffs

their day in court on the merits of their claim"). Therefore, certain procedural

rules aim at balancing these competing interests.

A-4212-19T2
9
One of those rules is the fictitious pleading rule, Rule 4:26-4, which

provides in pertinent part:

In any action, irrespective of the amount in controversy,
other than an action governed by R. 4:4-5 (affecting
specific property or a res), 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.

[R. 4:26-4 (emphasis added).]

Our Supreme Court has construed Rule 4:26-4 to allow "a plaintiff who institutes

a timely action against a fictitious defendant to amend the complaint after the

expiration of the statute of limitations to identify the true defendant." Viviano,

101 N.J. at 548. When this procedure is properly used, "'an amended complaint

identifying the defendant by its true name relates back to the time of filing of

the original complaint.'" Baez v. Paulo, 453 N.J. Super. 422, 437 (App. Div.)

(citing Viviano, 101 N.J. at 548), appeal denied, 235 N.J 107 (2018).

Although the fictitious pleading rule allows a party to amend its complaint

after the expiration of the statute of limitations, "case law has emphasized the

need for plaintiffs and their counsel to act with due diligence in attempting to

identify and sue responsible parties within the statute of limitations period."

Ibid.; see, e.g., Matynska v. Fried, 175 N.J. 51, 52-54 (2002); Claypotch v.

A-4212-19T2
10
Heller, Inc., 360 N.J. Super. 472, 479-80 (App. Div. 2003). Simply put, "Rule

4:26-4 may only be used by a plaintiff if a defendant's true name cannot be

ascertained by the exercise of due diligence prior to filing the complaint." Baez,

453 N.J. Super. at 438 (citations omitted). See also Claypotch, 360 N.J. Super.

at 479-80 ("To be entitled to the benefit of the rule, a plaintiff must proceed with

due diligence in ascertaining the fictitiously identified defendant's true name and

amending the complaint to correctly identify that defendant.").

In determining whether a plaintiff has proceeded in a sufficiently diligent

manner when substituting the true name of a fictitiously identified defendant, "a

crucial factor is whether the defendant has been prejudiced by the delay in its

identification as a potentially liable party and service of the amended

complaint." Claypotch, 360 N.J. Super. at 480. As we stated in Baez, a plaintiff

must satisfy two levels of diligence to be accorded the tolling benefits of the

rule:

First, a plaintiff must exercise due diligence in
endeavoring to identify the responsible defendants
before filing the original complaint naming John Doe
parties. Second, a plaintiff must act with due diligence
in taking prompt steps to substitute the defendant's true
name, after becoming aware of that defendant's
identity.

[ 453 N.J. Super. at 439.]

A-4212-19T2
11
Here, the trial court concluded plaintiffs sufficiently described Terracon

in their First Amended Complaint. Therefore, the only issue for our

consideration is whether plaintiffs acted diligently in discerning Terracon's

identity. Under the circumstances presented, we are satisfied plaintiffs

exercised due diligence.

Upon retention, plaintiffs' counsel immediately sought to identify

potentially liable parties by filing an OPRA request with Secaucus seeking

documents that would identify all the contractors and subcontractors associated

with the construction project. The municipality's responses revealed the identity

of nine contractors on the project, none of which were Terracon. Five months

before the statute of limitations expired, plaintiffs filed suit against Mast and

Terminal and named fictitious parties to preserve the ability to add later-

identified defendants. Plaintiffs also began the process of discovery to discern

the identity of other parties with potential liability for Steven's accident.

When Mast identified KAS and Kenvil as iron work contractors

performing work on the site, plaintiffs amended their complaint to include those

entities. The statute of limitations lapsed prior to any defendant providing its

answers to written discovery. But when the discovery was produced, none of

the defendants identified Terracon or mentioned the company in their responses.

A-4212-19T2
12
It was not until September 5, 2019, when Mast amended its answers to

interrogatories to include engineering inspection reports from Terracon, that

plaintiffs learned Terracon's identity. After the court granted leave to amend,

plaintiffs filed their Second Amended Complaint on September 27, 2019, adding

Terracon as a named defendant.

Terracon suggested in its brief supporting its motion to dismiss that

plaintiffs could have exercised greater efforts to identify Terracon, including

issuing an OPRA request to the HCIA and contacting Steven's employer for

information. In finding plaintiffs were not diligent, the trial court mentioned

those additional discovery efforts would have demonstrated plaintiffs' attempts

to identify other potentially liable parties. However, following the court's

ruling, when plaintiffs submitted an OPRA request to the HCIA, the 80-page

response did not mention Terracon. Nordic did not respond to plaintiffs' request.

We are satisfied that, under these circumstances, where Steven was

injured while working on a small portion of an immense construction project,

and could not personally know the identities of the myriad of trades and

companies involved in the project, plaintiffs were diligent in their efforts to

identify potential responsible parties. None of the named defendants, including

the project owner and general contractor, provided any information regarding

A-4212-19T2
13
Terracon in the voluminous production of discovery materials. When plaintiffs

learned of Terracon's involvement, they promptly amended the complaint.

We are not persuaded by Terracon's assertion that it is prejudiced by the

late amendment. The company has been represented by counsel upon service of

the complaint. All written discovery was provided, and counsel has been

actively attending case management conferences and depositions.

We, therefore, reverse the trial court's orders granting the dismissal of

Terracon and denying reconsideration.

Reversed and remanded for proceedings in accordance with this opinion.

We do not retain jurisdiction.

A-4212-19T2
14

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