MICHAEL CONDE v. ROBERT OLEKSY (2011)

Plaintiff Michael A. Conde appeals from the Law Division's orders denying his motion to amend his complaint and subsequently denying reconsideration.¹  We have considered the arguments plaintiff raises in light of the record and applicable legal standards.   We affirm.

The facts are undisputed.   On February 12, 2008, plaintiff was driving south on Hazel Street at its intersection with Hazelview Avenue in Clifton when his car was struck broadside by another vehicle that ran a stop sign.   The second car, a Burgundy Thunderbird, fled the scene, although plaintiff was able to ascertain its license plate number.   The police report of the incident notes the second car was owned by defendant Robert A. Oleksy, of 27 Milton Street, Clifton.   The report also lists the name and phone number of a witness to the crash.

On January 20, 2009, plaintiff filed his complaint against defendant and “John Doe 1–10.”   In April 2009, defendant filed his answer admitting only ownership of the Thunderbird.   Defendant served his answers to Form C Uniform Interrogatories on July 22, 2009, indicating that he was not the “operator or an occupant” of the Thunderbird at the time of the accident.   Defendant also certified “it [wa]s [his] understanding that [his] wife, Wanda Oleksy[,] was operating” the car and “was involved in an accident on February 18, 2008.” ²

In supplemental Form C(1) Interrogatories, defendant certified that his wife was the operator of his vehicle, and “was traveling from work to home after she received a telephone call that our son was having an epilepsy attack.”   In twelve other answers to interrogatories, defendant repeated that his wife was operating the car at the time of the accident.

Discovery ended on February 11, 2010.   On April 8, the case was arbitrated pursuant to Rule 4:21A. The arbitrator “no cause[d]” plaintiff's complaint, noting that the “wrong party [was] named.” ³

On April 23, plaintiff moved to amend his complaint and name defendant's wife as a party.   His attorney certified that both were insured by the same insurance policy, and that Wanda Oleksy had known of the litigation since its inception and was not prejudiced by the amendment.   Plaintiff waived oral argument.

Defendant opposed the motion, noting first that the statute of limitations had expired.   Defendant also argued that the true identity of the driver was disclosed in his answers to interrogatories.   Additionally, defendant asserted that plaintiff could have easily found out the identity of the driver by contacting the Clifton Police Department.   Defense counsel noted that he obtained the police report on April 15, 2009, along with a copy of an undated typewritten note Wanda Oleksy furnished to the police.   In that note, Ms. Oleksy admitted that she was driving the Thunderbird, received a report that her son was suffering an epileptic attack, drove to assist him, and, because the weather was snowy and the road slippery, was unable to stop at the stop sign.   She admitted striking plaintiff's car and leaving the scene of the accident.

On May 17, 2010, the judge denied plaintiff's motion to amend adding in handwritten notes on the order that the “information [regarding the driver's identity] was provided to plaintiff in discovery and was also available through the Clifton Police Department.”

Plaintiff moved for reconsideration on May 26 and requested oral argument.   His attorney asserted that the judge had “overlooked” certain facts in deciding the motion to amend.   In particular, plaintiff's counsel argued that defendant and Ms. Oleksy suffered no prejudice by the late amendment.   Counsel further noted that the typewritten letter from Ms. Oleksy was undated, secured from the police more than one year after the accident, and was not included in defendant's interrogatory answers.   Counsel argued that he had earlier secured a copy of the police report and it was “unreasonable for plaintiff to be expected to continue to request the police report ․ with the idea that there may be a fractional chance that the hit and run driver would send an undated letter” admitting her involvement.   Plaintiff again noted that Ms. Oleksy was aware of the litigation, was insured under the same insurance policy, and had not been prejudiced.

Apparently, defendant opposed the motion, although the appellate record does not contain the opposition.   The judge decided the motion without oral argument and entered the order of June 25 denying reconsideration.   In handwritten notes on the order, the judge concluded plaintiff “ha[d] failed to demonstrate new facts that were not previously available or where the court overlooked controlling decisions.”   This appeal followed.

In a single point heading plaintiff contends that he “satisfied the ․ fictitious party Rule in order to amend the ․ complaint ․ after the running of the statute of limitations.”   We disagree.

Rule 4:26–4, the fictitious-party practice rule 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.

“The purpose of the rule is to render timely the complaint filed by a diligent plaintiff, who is aware of a cause of action against an identified defendant but does not know the defendant's name.”  Greczyn v. Colgate–Palmolive, 183 N.J. 5, 11 (2005) (emphasis added).

Where a defendant is sued in a fictitious name because of the plaintiff's inability to ascertain his identity despite diligent efforts, the complaint may be amended after the statute of limitations has run to substitute the defendant's true name ․, particularly where the defendant can show neither prejudice resulting from nor reliance upon the lapse of time.

[Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 4:26–4 (2011) (emphasis added) (citing Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111 (1973)).]

However, “[t]he rule will not protect a plaintiff who had ample time to discover the unknown defendant's identity before the running of the statute of limitations.”  Ibid.

“There cannot be any doubt that a defendant suffers some prejudice merely by the fact that [she] is exposed to potential liability for a lawsuit after the statute of limitations has run.”  Mears v. Sandoz Pharms., Inc., 300 N.J.Super. 622, 631 (App.Div.1997).   Here, we accept for purposes of our decision, that defendant and Ms. Oleksy have suffered no other significant prejudice nor did they detrimentally rely upon the lapse of time between the accident and plaintiff's motion to amend.   Defendant was served well within the statute of limitations, and both he and his wife were aware of the litigation and her involvement in the accident.   The focus of the judge's conclusions and our review, however, is whether plaintiff was diligent in ascertaining the identity of the driver of the car that struck him.   We conclude he was not.

A plaintiff's obligation to diligently pursue the true identity of a fictitious party defendant is two-fold.  Claypotch v. Heller, Inc., 360 N.J.Super. 472, 480 (App.Div.2003).   He must act diligently in “ascertaining” the true identity of the fictitious party prior to filing the complaint, and subsequent to learning that defendant's true identity, “amend[ ] the complaint to correctly identify that [party]”.  Ibid.

In Matynska v. Fried, 175 N.J. 51, 53 (2002), the Court concluded that the plaintiff's attempt to amend her complaint to add another defendant, Dr. Feierstein, beyond the statute of limitations was properly denied.   Finding plaintiff's efforts to ascertain the doctor's identity “wholly inadequate,” the Court noted that the doctor's name appeared twice in hospital records of her care, and “[e]ven a cursory look at the telephone book,” would have revealed that the doctor was the partner of her primary physician, the defendant, Dr. Fried.  Ibid. The Court further noted that the plaintiff “had an obligation to investigate all potentially responsible parties in a timely manner but did not do so.”  Ibid.

The Court criticized Dr. Fried's conduct during discovery:

Sharp practice came into play in the answers to interrogatories and in Dr. Fried's dissembling responses to the questions propounded during depositions.   Those answers, although late in the game, were given prior to Matynska's motion to add Dr. Feierstein as a defendant.   They were obfuscatory, and arguably calculated to mislead Matynska regarding Dr. Feierstein's connection to the case, thus paving the way for the so-called “empty chair” defense.   Emblematic was Dr. Fried's refusal in interrogatory answers to even identify the members of his group or to acknowledge that Dr. Feierstein was covering for him on the dates in question.

[Ibid.]

Without consideration of whether Dr. Feierstein suffered prejudice as a result of the late filing, however, the Court noted, “In this case, because Matynska failed in her primary obligation to investigate Dr. Feierstein's involvement in a diligent and timely fashion, the defense's later tactics are not material to our disposition.”  Id. at 54 (emphasis added).

Here, there is no question that even if plaintiff did not know the true identity of the driver of the other car when he filed his complaint, “he should have known of it, and would have known it, if he had used diligence” subsequent to its filing.  Mears, supra, 300 N.J.Super. at 631.   Defendant's conduct during discovery was the polar opposite of that criticized in Matynska.   Ms. Oleksy's name and address were supplied to plaintiff in answers to interrogatories in July 2009, well before the running of the statute of limitations.   Defendant certified that his wife was driving the car.   Yet, plaintiff took no action.   Only the “no cause” at arbitration prompted plaintiff to seek amendment.   We note that in support of his original motion, the motion for reconsideration, and, indeed before us, plaintiff offers no rebuttal to the undisputed fact that the information regarding the driver's true identity was supplied in the interrogatory answers seven months before the statute of limitations expired.

Because the true identity of the driver was supplied by defendant himself, we need not consider other avenues of inquiry available to plaintiff before the running of the statute, e.g., requesting a copy of defendant's insurance policy to see if Ms. Oleksy was a named driver in the household, or obtaining further information from the police department.   In our view, it was not unreasonable to expect that plaintiff would contact the police department after initially obtaining the report to ascertain if any further investigation revealed the driver's identity.   This was a hit-and-run accident allegedly causing injury to plaintiff, thus making the driver subject to the penalties of N.J.S.A. 39:4–129, and requiring the driver to notify the police “by the quickest means of communication” and furnish a written report within ten days thereafter.   See N.J.S.A. 39:4–130.

In short, plaintiff's lack of diligence was solely responsible for the delay in filing a timely complaint against Ms. Oleksy, and, as a result, he is not entitled to the protection afforded by Rule 4:26–4.

Affirmed.

FOOTNOTES

FN1. Plaintiff's Notice of Appeal only seeks review of the June 25, 2010 order denying reconsideration, although his Case Information Statement includes both that order, and the May 17, 2010 order that denied his motion to amend his complaint.   The failure to include both orders in the notice of appeal permits us to limit our review solely to the denial of his motion for reconsideration.  Fusco v. Bd. of Educ. of the City of Newark, 349 N.J.Super. 455, 461–62 (App.Div.), certif. denied, 174 N.J. 544 (2002).   We choose to overlook that technical failure because “the substantive issues in the case and the basis for the motion judge's ruling on the [motion to amend] and [the] reconsideration motion[ ] [were] the same.”   Id. at 461..  FN1. Plaintiff's Notice of Appeal only seeks review of the June 25, 2010 order denying reconsideration, although his Case Information Statement includes both that order, and the May 17, 2010 order that denied his motion to amend his complaint.   The failure to include both orders in the notice of appeal permits us to limit our review solely to the denial of his motion for reconsideration.  Fusco v. Bd. of Educ. of the City of Newark, 349 N.J.Super. 455, 461–62 (App.Div.), certif. denied, 174 N.J. 544 (2002).   We choose to overlook that technical failure because “the substantive issues in the case and the basis for the motion judge's ruling on the [motion to amend] and [the] reconsideration motion[ ] [were] the same.”   Id. at 461.

FN2. It would appear that this date was a typographical error, although it is repeated on a number of occasions in defendant's subsequent filings..  FN2. It would appear that this date was a typographical error, although it is repeated on a number of occasions in defendant's subsequent filings.

FN3. The appellate record does not contain an order dismissing plaintiff's complaint, and there is no indication that plaintiff sought de novo review of the award or that defendant moved to confirm the award.   See R. 4:21A–6(b).  The propriety of the arbitrator's award is not before us.   But see, Jeter v. Stevenson, 284 N.J.Super. 229, 233 (App.Div.1995) (“New Jersey law recognizes a [rebuttable] presumption that the driver is acting as the owner's agent.”)..  FN3. The appellate record does not contain an order dismissing plaintiff's complaint, and there is no indication that plaintiff sought de novo review of the award or that defendant moved to confirm the award.   See R. 4:21A–6(b).  The propriety of the arbitrator's award is not before us.   But see, Jeter v. Stevenson, 284 N.J.Super. 229, 233 (App.Div.1995) (“New Jersey law recognizes a [rebuttable] presumption that the driver is acting as the owner's agent.”).

PER CURIAM