AMANDA AGUILAR v. VIVIAN VARGAS (2011)

Plaintiff, Amanda Aguilar, appeals from the denial of her motion to restore a premises liability action, filed on her behalf on October 17, 2007, arising out of an injury allegedly sustained on October 17, 2005 as the result of a slip and fall on snow and ice present at premises owned by Vivian Vargas.   We affirm.

I.

The procedural history of this matter is lengthy.   Plaintiff's claim was initially filed by Thomas Lynch of the Union City firm of Campbell, Lynch & Ortiz.   Five and one-half months later, on April 1, 2008, personal service on Vargas was attempted at 149 Sterling Avenue, Jersey City, but it was unsuccessful.   A post office inquiry disclosed no change of address.   Because service was not made on Vargas, on April 30, 2008, the case was dismissed for lack of prosecution pursuant to Rule 1:13-7.

Thereafter, Lynch attempted service pursuant to Rule 4:4-4(c) by regular and certified mail on Vargas and on Atlantic Risk Consultants, the claims adjustment company representing Vargas's carrier, Scottsdale Insurance Company.   Vargas signed a certified mail receipt on June 3, 2008, but did not answer the complaint.   Mail addressed to Atlantic Risk at 19 Hampton House Road # 333, Newton, New Jersey 07860, at 100 Sparta Avenue, Newton, New Jersey 07860, and at P.O. Box 517, Newton, New Jersey 07860 was returned as not deliverable.   As Rule 4:4-4(c) provides, service was thus ineffective for obtaining in personam jurisdiction.

Lynch then moved to reinstate the complaint and for substituted service.   His motion was granted on June 20, 2008, and substituted service on Vargas through service on Atlantic Risk by regular and certified mail was authorized.   On July 2, 2008, Lynch attempted service by certified mail on Atlantic Risk at P.O. Box 571, Newton, New Jersey 07860, but the mailing was not claimed.

A few days earlier, on June 30, 2008, George Prutting advised Lynch that Prutting had been retained by Scottsdale to represent Vargas, and he requested a copy of the complaint and proof of service through Atlantic Risk as soon as it was received.   On July 8, 2008, Lynch responded by sending a copy of the complaint to Prutting and the order for substituted service, but no proof of such service.   On July 10, 2008, Prutting again requested proof of service.

On October 25, 2008, the case was again dismissed for lack of prosecution.

Sometime thereafter, alleged negligence in the handling of files by Lynch became known to his partners and, on May 29, 2009, the partnership was dissolved.   The firm of Campbell Ortiz was constituted, with offices at the same Union City location previously occupied by the firm of Campbell, Lynch & Ortiz.   Brian Campbell took over plaintiff's file.

On July 7, 2009, Campbell informed Prutting's office that service on Scottsdale had occurred on February 19, 2009.   Campbell stated that if Prutting did not wish to answer on behalf of Vargas, Campbell would have to move to restore the complaint and seek a default.

On July 21, 2009, Prutting responded, but to Lynch, stating that he could not file an answer until the matter was restored, and restoration would require a demonstration of exceptional circumstances.   Although Campbell claims that a motion to restore the complaint was prepared in early August 2009, no evidence that such a motion was timely prepared or filed exists.

The motion to reinstate was not filed until January 6, 2010 and, following objection on behalf of Vargas, it was denied in an order of March 5, 2010 as the result of the absence of exceptional circumstances.   This appeal followed.

II.

Rule 1:13-7(a) provides for dismissal without prejudice of actions that have been pending for four months without an answer having been filed.   After dismissal, reinstatement can occur upon a showing of good cause if the motion to reinstate is filed within ninety days of the order of dismissal.   Thereafter, a showing of exceptional circumstances is required.

On appeal, plaintiff, relying on dictum in Judge Todd's decision in O'Donnell v. Ahmed, 363 N.J.Super. 44, 51 (Law Div.2003), claims that the break-up of the firm of Campbell, Lynch & Ortiz and the departure of Lynch constitute the exceptional circumstance that the rule requires.   However, even if we were to accept that argument, the dissolution of the partnership occurred on May 29, 2009 and the motion to restore the complaint was not filed until January 6, 2010, seven months later.   Campbell claims a timely motion was prepared in early August 2009, thereby incidentally establishing that he was aware of the need for action.   However, evidence of that motion and of its receipt by the court has not been produced.   Moreover, counsel has not explained why, if the motion were misdelivered or mislaid by the court, no follow-up by counsel occurred at the time of the motion's return date or thereafter.

The need to demonstrate exceptional circumstances if reinstatement is not sought within ninety days of dismissal was added by amendment to Rule 1:13-7(a) effective September 1, 2008.   Previously, a good cause standard applied regardless of when reinstatement was sought, and reinstatement was “ordinarily routinely and freely granted when plaintiff ha[d] cured the problem that led to the dismissal even if the application [was] made many months later.”  Rivera v. Atl. Coast Rehab.   Ctr., 321 N.J.Super. 340, 346 (App.Div.1999).

What constitutes exceptional circumstances has been discussed in various contexts, but not in a reported decision construing the language of Rule 1:13-7.   However, in Flagg v. Twp. of Hazlet, 321 N.J.Super.   256 (App.Div.1999), we engaged in an extensive discussion of the closely related term, extraordinary circumstances, in the context of an application to extend the time for the filing of a trial de novo.   In rejecting the defendant's arguments in that case, we observed:

Defendant's arguments belie a fundamental misunderstanding of the meaning of the term “extraordinary.”   This word, in common parlance, denotes something unusual or remarkable.   The dictionary includes among its definitions of the word:  “exceptional to a very marked extent;  most unusual;  far from common ․ rarely equaled, singular, phenomenal;  striking impressive ․ having little or no precedent and usually totally unexpected․”  Webster's Third New International Dictionary Unabridged 808 (1971).   Defendant's claim here is nothing more than a claim of human error or carelessness which is part of the fabric of every day existence and which Wallace [v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605 (1997) (holding attorney mistake cannot give rise to extraordinary circumstances capable of relaxing the period for demanding a trial de novo) ] specifically rejected as “extraordinary.”   Even if the case is characterized as one involving lax attorney supervision of staff, Hartsfield [v. Fantini, 149 N.J. 611 (1997) ] has already declared that such circumstances are not “extraordinary.”

[Flagg, supra, 321 N.J.Super. at 260.]

Applying Flagg 's standard to the present case, we find no evidence that would suggest the presence of exceptional circumstances.   Rather, the circumstances leading to the seven-month delay in the period between May 29, 2009 and January 6, 2010 upon which we are focusing are unexplained.   As such, they cannot be deemed exceptional.  Cooper v. Consol.   Rail Corp., 391 N.J.Super. 17, 24 (App.Div.2007) (holding unexplained delay in compliance with Rule 4:23-5 after withdrawal of prior counsel could not constitute extraordinary circumstances).

Moreover, regardless of whether we attribute the negligence of Lynch to plaintiff's present counsel, we cannot ignore the passage of time that has occurred in this case.   Plaintiff allegedly was injured on October 17, 2005;  suit was filed precisely two years later.   Between that date and the denial of plaintiff's motion to reinstate, more than two additional years passed.   We recognize that defendant has pointed to no specific prejudice suffered as the result of the delay.   However, in a case such as this in which a transitory weather condition ¹ was the alleged cause of plaintiff's injury, notice of the injury was not promptly given, and no timely investigation took place, we find such prejudice to be too likely to be ignored as a factor in our decision.   Cf. Rivera, supra, 321 N.J.Super. at 348-47 (suggesting that a complaint will not be reinstated if the defense was prejudiced by the delay in seeking that relief).

As a consequence of the foregoing, we conclude that the motion judge did not abuse his discretion in denying plaintiff's motion to reinstate her complaint.  Ghandi v. Cespedes, 390 N.J.Super. 193, 197 (App.Div.2007).

Affirmed.

FOOTNOTES

FN1. Absent unusual weather, any snow or ice present in mid-October would, perforce, vanish rapidly..  FN1. Absent unusual weather, any snow or ice present in mid-October would, perforce, vanish rapidly.

PER CURIAM