SUMAR ABNATHYA VS. CEZSARI M. MEDLEYGERALD DEUS VS. CEZSARI M. MEDLEY(L-6072-15, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2357-16T2
SUMAR ABNATHYA and VIMAR MOORE,
Plaintiffs,
v.
CEZSARI M. MEDLEY and GERALD DEUS,
Defendants.
___________________________________
GERALD DEUS,
Plaintiff-Appellant,
v.
CEZSARI M. MEDLEY and PROGRESSIVE
DRIVE NEW JERSEY INSURANCE COMPANY,
Defendants-Respondents.
____________________________________
Submitted September 25, 2017 – Decided October 10, 2017
Before Judges O'Connor and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket
Nos. L-5738-15 and L-6072-15.
Law Offices of Karim Arzadi, attorneys for
appellant (Mr. Arzadi, on the briefs).
Law Office of Cindy L. Thompson, attorneys for
respondent Cezsari M. Medley (Melissa A.
Galante, on the brief).
Kent & McBride, PC, attorneys for respondent
Progressive Drive New Jersey Insurance Company
(Robert S. Florke, on the brief).
PER CURIAM
By leave granted, plaintiff Gerald Deus appeals from a
September 30, 2016 order denying his motion to reinstate his
complaint and a November 4, 2016 order denying his motion for
reconsideration. We reverse.
I.
Following an automobile accident Deus claims caused him to
sustain personal injuries, he filed a complaint on August 28,
2015, asserting a negligence claim against Cezsari M. Medley and
a breach of contract claim against Deus's personal injury
protection insurance carrier, Progressive Drive New Jersey
Insurance Company. On March 11, 2016, the complaint was
administratively dismissed as to both defendants pursuant to Rule
1:13-7(a) because Deus failed to serve defendants with a summons
and complaint. Three months later in June 2016, Deus served each
defendant with a summons and complaint.
In a separate lawsuit, Sumar Abnathya and Vimar Moore claimed
they were injured in the automobile accident and asserted
negligence claims against Deus and Medley (the Abnathya matter).
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In his capacity as a defendant in the Abnathya matter, Deus was
represented by an attorney different from the attorney
representing him as a plaintiff in his action against Medley and
Progressive. Deus's counsel in the Abnathya matter moved to
consolidate the two lawsuits. Although Deus's complaint against
Medley and Progressive had been dismissed, the court entered an
August 5, 2016 order consolidating the lawsuits for the purpose
of discovery and trial.
On September 14, 2016, Deus moved to reinstate his complaint
against Medley and Progressive. In support of the motion, Deus's
counsel certified that his office was unable to effect service
upon Medley and Progressive prior to the administrative dismissal.
Counsel also asserted that defendants had been served in June 2016
and the discovery period remained open. Counsel's assertions were
uncontested. Neither Medley nor Progressive opposed Deus's
motion.
In a September 30, 2016 order, the court denied Deus's motion.
The order states that "[p]ursuant to R. 1:13-7, [Deus] has not
presented sufficient evidence for a showing of exceptional
circumstances for reinstatement beyond [ninety] days of the date
of dismissal."
Deus filed a motion for reconsideration. Again, Medley and
Progressive did not oppose the motion. The court denied the motion
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in a November 4, 2016 order stating Deus "failed to meet [his]
burden of presenting sufficient evidence to warrant
reconsideration under R. 4:49-2." This appeal followed.
II.
"Our review of an order denying reinstatement of a complaint
dismissed for lack of prosecution proceeds under an abuse of
discretion standard." Baskett v. Kwokleung Cheung, 422 N.J. Super.
377, 382 (App. Div. 2011) (citations omitted); accord Ghandi v.
Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007). We are not,
however, bound by the Law Division's legal conclusions or its
"'interpretation of the law and the legal consequences that flow
from established facts . . . .'" Alfano v. BDO Seidman, LLP, 393
N.J. Super. 560, 573 (App. Div. 2007) (quoting Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Rule 1:13-7(a) is "docket-clearing rule that is 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, supra, 422 N.J.
Super. at 379; see also Mason v. Nabisco Brands, Inc., 233 N.J.
Super. 263, 267 (App. Div. 1989) (explaining Rule 1:13-7(a) is
intended to "clear the docket of cases that cannot, for various
reasons, be prosecuted to completion"). The Rule details the bases
for an administrative dismissal of a complaint for lack of
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prosecution, R. 1:13-7(a), and provides the standards and
procedure for reinstatement of a complaint that has been
administratively dismissed:
After dismissal, reinstatement of an action
against a single defendant may be permitted
on submission of a consent order vacating the
dismissal and allowing the dismissed defendant
to file an answer . . . . If the defendant
has been properly served but declines to
execute a consent order, plaintiff shall move
on good cause shown for vacation of the
dismissal. In multi-defendant actions in which
at least one defendant has been properly
served, the consent order shall be submitted
within 60 days of the order of dismissal, and
if not so submitted, a motion for
reinstatement shall be required. The motion
shall be granted on good cause shown if filed
within 90 days of the order of dismissal, and
thereafter shall be granted only on a showing
of exceptional circumstances.
[R. 1:13-7(a).]
There is no dispute that Deus filed the motion for
reinstatement more than ninety days after entry of the March 11,
2016 dismissal order. Nevertheless, Deus first contends the court
erred by applying the heightened Rule 1:13-7(a) exceptional
circumstances standard for multi-defendant cases in deciding the
reinstatement motion. He argues that under the circumstances
presented, the court should have decided his motion under the
Rule's good cause standard and that good cause existed for
reinstatement of the complaint. We agree.
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The exceptional circumstances standard applies in multi-
defendant cases "in which at least one defendant has been properly
served." R. 1:13-7(a). The standard "was intended to avoid delay
where a case has proceeded against one or more defendants, and the
plaintiff then seeks to reinstate the complaint against a
previously-dismissed additional defendant." Giannakopoulos v. Mid
State Mall, 438 N.J. Super. 595, 609 (App. Div. 2014) certif.
denied, 221 N.J. 492 (2015); see also Pressler & Verniero, Current
N.J. Court Rules, comment 1.2 on R. 1:13-7(a) (2017). The
exceptional circumstances standard therefore applies in multi-
defendant cases that proceed against a properly served defendant
prior to the filing of a motion to reinstate a complaint that was
administratively dismissed against another defendant.1
1
The proper service of Medley and Progressive in June 2016
followed the administrative dismissal of Deus's complaint against
them. It did not constitute the "proper service" of a defendant
in a multi-defendant case requiring application of the exceptional
circumstances standard under Rule 1:13-7. Proper service of Medley
and Progressive was permitted prior to the filing of the
reinstatement motion. See Weber v. Mayan Palace Hotel & Resorts,
397 N.J. Super. 257, 264 (App. Div. 2007) (finding the purpose of
Rule 1:13-7(a) is advanced when a defendant is served with the
complaint prior to the filing of a reinstatement motion). Rule
1:13-7(a) can only be logically read to require application of the
exceptional circumstances standard where there is proper service
of a codefendant against whom the complaint has not been
administratively dismissed.
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Here, there are no defendants in Deus's lawsuit who were
properly served and participated in the case prior to Deus's filing
of the reinstatement motion. To the contrary, plaintiff moved to
reinstate the complaint against the only two named defendants in
the complaint,2 Medley and Progressive, both of whom had the
complaint against them administratively dismissed pursuant to Rule
1:13-7. Therefore, the court's application of the exceptional
circumstances standard is not supported by the plain language of
Rule 1:13-7(a), and is inconsistent with the purpose of the
heightened exceptional circumstances standard.
We reject the contentions of Medley and Progressive that the
exceptional circumstances standard should apply because permitting
reinstatement of the complaint will substantially delay the
proceedings in the consolidated case. Again, we are satisfied
that application of the exceptional circumstances standard was not
appropriate under Rule 1:13-7 because there were no defendants who
were properly served and against whom Deus's complaint was pending
when the consolidation motion was filed, and the Rule does not
address consolidated cases. Moreover, the consolidation order was
2
The complaint also asserted a negligence claim against
fictitiously-named defendants, but the record shows those
defendants were never identified or served with a summons and
complaint.
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not entered until August 5, 2016, and therefore Deus's filing of
the reinstatement motion only four weeks later could not have
substantially delayed the proceedings in the consolidated case.
Our conclusion that the trial court erred by applying the
exceptional circumstances standard under the circumstances
presented does not end the inquiry. We consider whether the record
supports a determination that plaintiff demonstrated good cause
for the reinstatement of the complaint.3 R. 1:13-7(a).
The "good cause" standard is difficult to precisely define.
"Its application requires the exercise of sound discretion in
light of the facts and circumstances of the particular case
considered in the context of the purposes of the Court Rule being
applied." Ghandi, supra, 390 N.J. Super. at 196 (quoting Del.
Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228,
232 (App. Div. 2002)). Our Supreme Court has defined "good cause"
as "the presence of a meritorious [claim] worthy of judicial
determination . . . and the absence of any contumacious conduct
. . . ." O'Connor v. Altus, 67 N.J. 106, 129 (1975).
3
Under Rule 1:3-7(a) the good cause standard applies where a
single defendant complaint is administratively dismissed. The good
cause standard, however, has been applied to a motion to reinstate
a complaint against multiple defendants. See Ghandi, supra, 390
N.J. Super. at 195-96.
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In Ghandi, we addressed the good cause standard under Rule
1:13-7(a), stating that because administrative dismissals are
"without prejudice," "the right to reinstatement 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." Ghandi, supra, 390 N.J. Super. at 196. We also
observed that "absent a finding of fault by the plaintiff and
prejudice to the defendant, a motion to restore under [Rule 1:13-
7(a)] should be viewed with great liberality." Id. at 197.
In Baskett, we applied the Ghandi good cause standard under
Rule 1:13-7 to a trial court's denial of the plaintiffs' motion
to reinstate a complaint. Baskett, supra, 422 N.J. Super. at 384-
85. We observed that the plaintiffs' reasons for not exercising
personal oversight of the handling of the matter were "meager and
incomplete." Id. at 385. We were "most concerned," however, that
the dismissal resulted from plaintiffs' first counsel's
inattention. Ibid. We also noted that defendants failed to
present any evidence showing they suffered prejudice from the
plaintiffs' delay in seeking reinstatement. Ibid. We reversed
the trial court's order, finding that under the "indulgence
mandated by Ghandi," and because the plaintiffs' were "essentially
blameless, the courthouse doors should not be locked and sealed
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to prevent their claims from being resolved in the judicial forum."
Ibid.Here, application of the principles in Ghandi and Baskett
require reversal of the court's order denying Deus's motion to
reinstate the complaint. The record does not support a finding of
prejudice. Medley and Progressive did not oppose plaintiff's
motion for reinstatement and did not present the motion court with
any evidence showing they would be prejudiced if Deus's motion was
granted. See Baskett, supra, 422 N.J. Super. at 385 (finding good
cause for reinstatement of a complaint in part because the
defendant did not present a "scintilla of evidence" supporting his
claim of prejudice); Ghandi, supra, 390 N.J. Super. at 197 (finding
court erred in denying reinstatement motion in part because the
defendants failed to object to the reinstatement motion).
In the certification in support of the reinstatement motion,
Deus's counsel explained that service of the summons and complaint
was not timely made because his office was unable to effect
service. Because the reinstatement motion was uncontested, there
was no evidentiary basis before the motion court permitting a
finding to the contrary.4 In any event, there is no evidence
4
In his certification supporting the motion for reconsideration,
Deus's counsel further explained that service of the summons and
complaint was delayed following the administrative dismissal
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showing Deus was responsible for the delay in serving Medley and
Progressive or in making the reinstatement motion. As we found
in Ghandi and Baskett, under such circumstances and in the absence
of any showing of prejudice, plaintiff demonstrated good cause for
reinstatement of his complaint and should not be foreclosed from
adjudicating his claims in court. Ghandi, supra, 390 N.J. Super.
at 198; Baskett, supra, 422 N.J. Super. at 385.
We reverse the court's order denying Deus's motion to
reinstate his complaint as to Medley and Progressive. It is
therefore unnecessary to address Deus's appeal from the court's
order denying his motion for reconsideration.
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
because he was engaged in discussions and an exchange of
information with Medley's insurance carrier and Progressive. This
information was not before the court on Deus's motion to reinstate
the complaint and we do not rely upon it in our analysis of the
court's order denying the motion.
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