ANA F. CRUZ-SOSA v. NEWPORT CENTRE MALL (L-2283-15, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1036-20
ANA F. CRUZ-SOSA,
Plaintiff-Appellant,
v.
NEWPORT CENTRE MALL,
NEWPORT CENTRE MALL,
LLC, SIMON PROPERTY
GROUP, and ABLE BUILDING
MAINTENANCE,
Defendants-Respondents.
_____________________________
Submitted January 19, 2022 – Decided January 28, 2022
Before Judges Fisher and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2283-15.
Carlos H. Acosta, Jr., attorney for appellant.
Weiner Law Group, LLP, attorneys for respondents
Newport Centre Mall, Newport Centre Mall, LLC, and
Simon Property Group (Lawrence M. Berkeley, of
counsel and on the brief; Jason Mastrangelo, on the
brief).
Tompkins, McGuire, Wachenfeld & Barry, LLP,
attorneys for respondent Able Building Maintenance
(Richard F. Connors, Jr., of counsel and on the brief).
PER CURIAM
On May 26, 2015, plaintiff Ana F. Cruz-Sosa filed a complaint against
defendants, seeking personal injury damages based on her alleged fall at the
Newport Centre Mall in Jersey City on June 2, 2013. Service was apparently
attempted soon after the complaint was filed, but not achieved, and the trial court
administratively dismissed the complaint without prejudice pursuant to Rule
1:13-7.
Nearly five years later – in March 2020 – plaintiff effected service of
process on defendants and moved for reinstatement of the complaint. Defendant
Able Building Maintenance opposed the motion. In an order dated April 24,
2020, the trial judge denied the motion to reinstate as it applied to Able and the
complaint against Able was dismissed with prejudice. Defendant Newport
Centre, LLC i/s/h Newport Centre Mall, Newport Centre Mall, LLC, and Simon
Property Group (collectively "the Mall") did not file timely opposition to
plaintiff's motion – later claiming the insurgence of the COVID-19 pandemic
hampered it – and another order was entered on April 24, 2020, reinstating the
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complaint against the Mall. That same day, the Supreme Court entered an order
relaxing filing deadlines because of the pandemic.
The Mall unsuccessfully moved twice for reconsideration of the April 24,
2020 order, and then unsuccessfully moved in this court for leave to appeal.
Plaintiff then moved for reconsideration of the dismissal of the action as to Able.
The judge denied relief. During the course of oral argument, however, the Mall
again asserted that the action against it should also have been dismissed with
prejudice. The judge invited the Mall to file a reconsideration motion, which the
judge later granted, concluding plaintiff failed to demonstrate "good cause," as
required by Rule 1:13-7(a), for reinstatement because her attorney failed to
explain why service was not affected on the Mall for nearly five years after the
filing of the complaint.
Plaintiff appeals, arguing the trial judge: erred in reconsidering the order
reinstating the complaint; correctly applied the good-cause reinstatement
standard; misapplied the appropriate standard when denying the motion to
reinstate the complaint against Able and in denying plaintiff reconsideration of
that order; and failed to recognize that plaintiff's prejudice in not reinstating
substantially outweighs the prejudice suffered by defendants if the complaint is
reinstated. We disagree with plaintiff's arguments.
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Plaintiff's contention about reconsideration is without merit because she
claims the judge should have complied with the standard contained in Rule 4:49-
2, which applies only when the questioned disposition is a final order or
judgment. Not one of the orders the judge was asked to reconsider was a final
order; consequently, the judge was obligated to apply Rule 4:42-2's more liberal
standard, which allows a court to reconsider an interlocutory order at any time
prior to entry of final judgment in the interests of justice. See, e.g., Lawson v.
Dewar, 468 N.J. Super. 128, 134-35 (App. Div. 2021). Thus, plaintiff is
mistaken in arguing that the judge could not reconsider the reinstatement order
absent a showing of the type described in Cummings v. Bahr, 295 N.J. Super.
374, 384 (App. Div. 1996). While it is true that we noted in Lawson that the
liberal standard set forth in Rule 4:42-2 was not intended to encourage
"frivolous, vexatious or merely repetitious" reconsideration motions, we also
recognized that even the undesirability of repetitious motions should not
preclude a judge from reaching a correct resolution of the issues. 468 N.J. Super.
at 136-37. The rules are, after all, designed to serve the interests of justice. See
R. 1:1-2; A.T. v. Cohen, 231 N.J. 337, 351-52 (2017); Ragusa v. Lau, 119 N.J.
276, 283-84 (1990). We find no procedural irregularities in how the trial judge
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eventually arrived at what we agree was the correct disposition of plaintiff's
attempt to reinstate her complaint.
In focusing on the disposition and not so much how the trial judge got
there, we are mindful that the right to reinstatement after an administrative
dismissal under Rule 1:13-7 is "ordinarily routinely and freely granted when
plaintiff has cured the problem that led to the dismissal even if the application
is made many months later." Rivera v. Atl. Coast Rehab. & Health Care Ctr.,
321 N.J. Super. 340, 346 (App. Div. 1999) (citing Mason v. Nabisco Brands,
Inc., 233 N.J. Super. 263, 267-70 (App. Div. 1989)). But we also recognized in
Rivera that the liberality required begins to diminish as greater time passes from
dismissal without a correction of the deficiencies that led to dismissal. In cases
of "a substantial delay," which we characterized in Rivera as "a year or more,"
in failing to effect service of process, courts must be more insistent on the
presence of good cause for relief while also considering the absence of prejudice
to the non-delinquent parties. Id. at 346-47.1
1
We note that Rule 1:13-7 was significantly revamped since Rivera but, as we
observed in Estate of Semprevivo v. Lahham, 468 N.J. Super. 1, 14 (App. Div.
2021), the "exceptional circumstances" standard referred to in Rule 1:13-7(a)
does not apply in a multi-defendant case where, as here, no defendant has
appeared by the time reinstatement is sought.
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When considering whether "good cause" has been met, a court's
examination should start with the plaintiff's particular showing. And, here, that
practically ends the analysis because plaintiff provided no explanation for the
extraordinary delay. Her attorney's supporting certification recognizes that the
injury occurred in 2013, that the complaint was filed on June 1, 2015, and that
counsel asked an entity to serve process on June 3, 2015. According to counsel's
certification, service did not occur in 2015 as intended and the action was thus
administratively dismissed. Plaintiff's counsel's next step – according to his
certification – occurred approximately fifty-five months later when, in January
2020, he asked the clerk's office to explain what procedurally happened to the
suit. The attorney's certification is bereft of any explanation about what occurred
with plaintiff or in his office from June 2015 to January 2020, and it is hard to
imagine either plaintiff or her attorney thought the nearly five-year dormancy of
the suit was normal.
In seeking reinstatement, plaintiff and her attorney were obligated to show
their cards in attempting to convince the court there was some good reason for
the lengthy inaction. The absence of such an explanation entitles a court to
assume good cause for reinstatement was lacking.
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Even if this were not so and an unexplained five-year hibernation alone
was not enough to allow for a denial of reinstatement,2 both the Mall and Able
provided evidence of the problems they would face if plaintiff was allowed to
prosecute this matter at this late date. They both asserted that they had no
knowledge of the lawsuit until served in March 2020, nearly seven years after
the alleged acts of negligence, nearly five years after the filing of the complaint,
and well beyond the two-year statute of limitations. The Mall asserted that its
security director and operations director at the time of plaintiff's alleged fall no
longer work for it. Able, which provided janitorial services for the Mall at t he
time, has not been involved with the Mall since July 2015. And Able has asserted
that none of the janitorial employees assigned to the Mall at the time of the
incident were still employed by Able when notice of the suit was first given in
March 2020; Able additionally asserts that the whereabouts of the employees
who did work at the Mall at the time are unknown to it.
Plaintiff's attorney has argued that plaintiff has been prejudiced; since no
sworn statement of plaintiff was ever provided in the trial court motions, a
2
We recognize reinstatement was found appropriate despite delays of more than
a year, see Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 384-85 (App.
Div. 2011) (thirty-three month delay); Ghandi v. Cespedes, 390 N.J. Super. 193,
195 (App. Div. 2007) (delay of seventeen months), but nothing like the delay
here.
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description of her alleged prejudice has never been provided. The most we can
assume on this record is that her prejudice consists of the demise of her suit
against these defendants. But, if the inability to obtain reinstatement was the
product of her representative's inattentiveness, plaintiff will likely suffer no
appreciable prejudice; if she had a meritorious claim against these defendants,
it may simply be transmuted into a negligence claim against her representatives.
Without knowing more than what plaintiff or her attorney have chosen to tell
the trial judge, we cannot say that plaintiff has suffered any appreciable
prejudice or that her prejudice is greater than that facing the Mall and Able if
the action against them is allowed to proceed. 3
We conclude that even if the extraordinary amount of time that passed
before plaintiff moved was not enough to preclude reinstatement, the trial judge
did not abuse his discretion in ultimately precluding reinstatement because:
plaintiff failed to explain the nearly five years of inactivity; defendants provided
evidence of their prejudice in not receiving service of process until five years
3
Stated another way, because the several years' long delay was caused by
plaintiff or her representatives – and not defendants – then simple fairness
requires that the risk of loss fall on the parties responsible for the situation rather
than others – like defendants – who did nothing to cause the delay.
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after the suit's commencement and seven years after the incident occurred; and
plaintiff has failed to show how she was prejudiced.
Affirmed.
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