MARIA SANTIAGO VS. JUAN CASTILLO-ALMONTE (L-2259-15, PASSAIC COUNTY AND STATEWIDE) ( 2021 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-4143-19
    MARIA SANTIAGO,
    Plaintiff-Appellant,
    v.
    JUAN CASTILLO-ALMONTE
    and YAHELY CEPEDA,
    Defendants-Respondents.
    __________________________
    Submitted April 28, 2021 – Decided May 20, 2021
    Before Judges Accurso and Vernoia.
    On appeal from the Superior Court of New Jersey, Law
    Division, Passaic County, Docket No. L-2259-15.
    Goldstein & Handwerker, LLP, attorneys for appellant
    (Steven Goldstein, on the brief).
    Norton, Murphy, Sheehy & Corrubia, P.C., attorneys
    for respondents (Harry D. Norton, Jr., of counsel;
    Jessica J. Centauro-Petrassi, on the brief).
    PER CURIAM
    Plaintiff Maria Santiago appeals from a June 3, 2020 order denying her
    request to reinstate her personal injury complaint against defendants Juan
    Castillo-Almonte and Yahely Cepeda dismissed more than four years earlier for
    lack of prosecution under Rule 1:13-7(a). Because plaintiff failed to offer any
    explanation for her long delay in reinstating the action, we affirm.
    Plaintiff alleges she was involved in a car crash in Paterson on June 27,
    2013, with a car driven by Castillo-Almonte and owned by Cepeda. Days before
    the running of the two-year statute of limitations, plaintiff filed a personal injury
    action against both defendants. Two months later, plaintiff successfully served
    Castillo-Almonte with the summons and complaint. Despite several attempts by
    a process server, however, she was unable to serve Cepeda. Castillo-Almonte
    never answered.
    Plaintiff's counsel failed to request entry of default against Castillo -
    Almonte, and in November, the court sent him a sixty-day notice pursuant to
    Rule 1:13-7(a) that the action would be dismissed without prejudice as to both
    defendants on January 5, 2016, unless plaintiff took action. Counsel apparently
    took no action, and the case was dismissed without prejudice on January 8, 2016.
    Plaintiff's counsel made a motion in March 2019 to reinstate the matter,
    but withdrew it for reasons unknown. He filed a second motion in early May
    A-4143-19
    2
    2020 seeking reinstatement and entry of an order permitting substituted service
    on Cepeda's insurance carrier, New Jersey Manufacturers, pursuant to Rule 4:4-
    4(b)(3).    See Feuchtbaum v. Constantini, 
    59 N.J. 167
    , 178-79 (1971)
    (authorizing substituted service in auto negligence cases on a defendant's
    liability insurance carrier when the defendant cannot be located for service).
    Counsel filed a certification discussing the "good cause" standard for
    reinstatement under Rule 1:13-7, but did not mention the "exceptional
    circumstances" standard the rule imposes in multi-defendant cases when the
    motion for reinstatement is made after ninety days. See R. 1:13-7(a). More
    important, counsel nowhere explained the reason for the four-year delay in
    seeking reinstatement of the complaint.
    Judge Thomas F. Brogan denied the motion to reinstate, noting on the
    order the failure to address either the good cause or exceptional circumstances
    that could have "allowed [the case] to remain dismissed [for] well over four
    years." Plaintiff appeals, contending the court erred in denying her motion to
    reinstate her complaint in order to serve Cepeda's liability insurance carrier. We
    disagree.
    We review an order denying reinstatement only for abuse of discretion,
    Weber v. Mayan Palace Hotel & Resorts, 
    397 N.J. Super. 257
    , 262 (App. Div.
    A-4143-19
    3
    2007), mindful that Rule 1:13-7(a) is a "docket-clearing rule . . . designed to
    balance the institutional needs of the judiciary against the principle that a just
    result should not be forfeited at the hands of an attorney's lack of diligence."
    Baskett v. Kwokleung Cheung, 
    422 N.J. Super. 377
    , 379 (App. Div. 2011).
    Although counsel for New Jersey Manufacturers, appearing for both
    defendants on appeal, argues the court correctly determined plaintiff failed to
    establish exceptional circumstances warranting reinstatement, we are not
    convinced exceptional circumstances is the correct standard or the one Judge
    Brogan applied. As we explained in Baskett, the 2008 amendments to Rule
    1:13-7 created "separate standards for cases with a single defendant and cases
    with multiple defendants." 
    422 N.J. Super. at 383
    . The more demanding
    exceptional circumstances standard is required after ninety days in multi -
    defendant cases because when "there has been a dismissal with respect to fewer
    than all defendants, . . . the case likely will have proceeded and discovery
    undertaken at least with respect to the action(s) against the remaining defendant
    or defendants," resulting in vacation of the dismissal having "the capacity of
    substantially delaying all further proceedings." Pressler & Verniero, Current
    N.J. Court Rules, cmt. 1.2 on R. 1:13-7 (2021).
    A-4143-19
    4
    Here, where the case has not proceeded at all and defendants are
    represented by the same lawyer, the exceptional circumstances standard may not
    be appropriate. We surmise Judge Brogan thought the same, given his reference
    to both standards. As the judge noted, however, plaintiff's counsel's failure to
    provide any reasons explaining the four-year delay in moving to reinstate the
    complaint precluded even a good cause finding, much less that there were
    exceptional circumstances to excuse the delay.
    Plaintiff's counsel has not corrected the omission on appeal.        While
    counsel again explains his inability to serve Cepeda despite multiple attempts,
    he does not address the reasons for the delay in seeking reinstatement.
    Acknowledging that counsel "took over four years to vacate the dismissal" of
    plaintiff's case, he argues only that "case law suggests that dismissals are
    routinely vacated in favor of a blameless plaintiff who has not had an
    opportunity to litigate her case."
    Counsel is correct that our courts look indulgently on the many reasons
    that can cause a plaintiff's counsel to fail to timely move to reinstate an action
    dismissed under Rule 1:13-7(a), excusing even reasons that "are meager and
    incomplete," so long as a defendant has not come forward with evidence of
    prejudice. Baskett, 
    422 N.J. Super. at 385
     (finding three-year delay, based on
    A-4143-19
    5
    counsel's "operational difficulties," in acting to reinstate a complaint filed on the
    eve of the statute of limitations did not defeat "good cause" showing in the
    absence of prejudice to the defendant). The problem here is not that counsel's
    reasons for the delay are "meager and incomplete," it is that they are wholly
    absent.   Given counsel's failure to provide any explanation at all for the
    inordinately long delay in moving to reinstate this complaint, we cannot find the
    trial judge abused his discretion in denying the motion, even under the more
    indulgent good cause standard that might arguably apply in this instance.
    Affirmed.
    A-4143-19
    6
    

Document Info

Docket Number: A-4143-19

Filed Date: 5/20/2021

Precedential Status: Non-Precedential

Modified Date: 5/20/2021