KEVIN ROBINSON VS. 78 MALLORY STREET, LLC (L-1244-16, 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NOT FOR PUBLICATION WITHOUT THE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-2791-17T4
KEVIN ROBINSON,
Plaintiff-Appellant,
v.
78 MALLORY STREET, LLC,
BAYSIDE TAVERN, MAHES &
ASSOCIATES NJ LLC,
CITY OF JERSEY CITY,
COUNTY OF HUDSON, and
STATE OF NEW JERSEY,
Defendants-Respondents.
____________________________
Argued January 8, 2019 – Decided January 28, 2019
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1244-16.
Alan K. Albert argued the cause for appellant (Brandon
J. Broderick, LLC, attorneys; Alan K. Albert, on the
brief).
Respondents have not filed a brief.
PER CURIAM
Plaintiff Kevin Robinson appeals from three Law Division orders dated
September 18, 2017, December 8, 2017, and January 19, 2018. The September
18, 2017 order denied plaintiff's motion to extend discovery and to amend his
complaint to substitute 80 Mallory Corp., for a fictitiously named defendant.
The December 8, 2017 order dismissed the complaint and the January 19, 2018
order denied reconsideration of the September 18, 2017 and December 8, 2017
orders. We affirm.
I.
Plaintiff maintains that on April 8, 2014, he sustained permanent injuries
when he tripped and fell on a defective sidewalk on Mallory Avenue in Jersey
City. By May 2014, he retained counsel who, after inspecting the location and
consulting with plaintiff, determined plaintiff's fall occurred on a sidewalk
abutting the Bayside Tavern (Bayside) located at 78-80 Mallory Avenue.
In a May 2, 2014 letter addressed to the Office of the Jersey City Tax
Assessor, plaintiff's counsel requested written ownership information with
respect to the property located at "78-80 Mallory Avenue." In his May 5, 2014
notice of claim to the City of Jersey City (Jersey City), the County of Hudson
(Hudson County), and the State of New Jersey (the State), submitted pursuant
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to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, he similarly
claimed that he was injured at "78-80 Mallory Avenue . . . ."
Plaintiff's counsel received a reply from the tax assessor's office on May
6, 2014, "enclos[ing] . . . the property ownership [records for] 78 Mallory
Avenue" and requesting a $10 payment, which counsel represents he "promptly
forwarded." The May 6, 2014 letter does not mention 80 Mallory Avenue, and
plaintiff's counsel did not send any follow-up communication to the tax assessor
with respect to that address.
On May 30, 2014, in response to plaintiff's notice of claim, the Jersey City
Department of Law sent plaintiff's counsel a letter enclosing certifications and
ownership information for both 78 and 80 Mallory Avenue. The enclosed
documents revealed that at the time of plaintiff's fall, 78 Mallory Street, LLC,
owned the property at 78 Mallory Avenue and that 80 Mallory Corp. owned the
property at 80 Mallory Avenue.
The May 30, 2014 correspondence also "enclosed a supplemental claim
form" pursuant to the TCA. Although the record contains a completed
supplemental claim form signed by plaintiff and bearing an electronic facsimile
sender's stamp from plaintiff's counsel's office dated June 24, 2014, counsel
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maintained before us and in the trial court that he did not receive either the May
30, 2014 letter, or any of its enclosures at that time.
Nearly two years later, on March 21, 2016, plaintiff filed a complaint
naming 78 Mallory Street, LLC (78 Mallory); Bayside; Mahes & Associate NJ
LLC (Mahes); Jersey City; Hudson County; the State; John Does 1-10; and ABC
Co. 1-10 (fictitiously named owner of the property located at 78-80 Mallory
Ave. and Yale Ave). Plaintiff alleged that defendants "owne[d] or were in
control and operation of the premises" located at "78 Mallory Avenue, Jersey
City, New Jersey and/or 78-80 Mallory Ave. and Yale Ave. on the Yale Ave.
side" on or about April 8, 2014, and he was injured because of defendants'
negligent "maintenance, repair, supervision or upkeep" of the property.
In its October 7, 2016 answer to plaintiff's interrogatories, Jersey City
stated that "the alleged accident occurred on the Yale Avenue side of the
property known as 80 Mallory Avenue." In addition, Jersey City identified
"Andrew Lim, Senior Engineer" and "John McGrath, Director, Division of
Building & Street Maintenance" as "persons who have knowledge of any
relevant facts relating to the case," and provided an address at which to contact
them. Plaintiff maintains that "at the deposition of Jersey City's engineer,
Andrew Lim did not disclose the property owners of 78 Mallory [Avenue] or 80
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Mallory [Avenue]." As the record does not contain Lim's deposition transcript,
we cannot determine if counsel specifically asked who owned the 80 Mallory
Avenue property when plaintiff was injured. It is also unclear whether plaintiff
deposed John McGrath. On November 10, 2016, plaintiff voluntarily dismissed
Mahes without prejudice.
Discovery was extended twice through August 15, 2017, first by consent
of the parties and again by court order. On that date, plaintiff's counsel received
a letter from Jersey City amending its answers to interrogatories and enclosing,
among other documents, the certifications and ownership records it allegedly
sent to plaintiff's counsel on May 30, 2014. Plaintiff's counsel maintains that
his receipt of the August 15, 2017 correspondence was the first time he received
the May 30, 2014 letter and its enclosures.
On August 18, 2017, plaintiff voluntarily dismissed 78 Mallory with
prejudice. On August 30, 2017, plaintiff filed a motion for leave to amend his
complaint to name 80 Mallory Corp. as a defendant and to reopen and extend
discovery for an additional 120 days. In a September 18, 2017 order, the court
denied the motion for the following reasons:
Motion is DENIED under [Rule] 4:26–4. The exhibits
to the Certification show that the City of Jersey City
advised [plaintiff's counsel] as early as May[] 2014
(pre-suit) that the address of the corner property was
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'80' not '78[.'] Exercise of due diligence at that time
would have revealed the same [a]ssessors record and
the correct address of the premises abutting the
sidewalk in question.
On October 18, 2017, Jersey City filed a notice of motion for summary
judgment, which was unopposed. In an accompanying certification, Jersey
City's tax assessor stated that "[a]ccording to the official tax records of Jersey
City, the [current] owner of 80 Mallory Avenue is Mahes & Associates NJ LLC."
By order dated December 1, 2017, the court granted Jersey City's motion
for summary judgment. On December 8, 2017, at plaintiff's counsel's request,
the court entered an order dismissing the case "since there are no remaining and
viable defendants in this matter following the grant of summary judgment
dismissing Jersey City from the litigation."
On December 28, 2017, plaintiff filed a motion for reconsideration of the
September 18, 2017 and December 8, 2017 orders and sought to reopen and
extend discovery for an additional 120 days. In support of the motion, plaintiff's
counsel certified that "a thorough search of the paper and electronic file for this
matter" revealed that "this office . . . never received" the "letter and attachments
from the Jersey City Tax Assessor's office dated May 30, 2014."
In a January 19, 2018 order, the court denied plaintiff's motion for
reconsideration and to reopen and extend discovery for the following reasons:
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Motion is DENIED for both procedural and substantive
reasons. Procedurally, the motion is untimely as it
should be filed within [twenty] days of counsel's receipt
of the prior [o]rder. The [o]rder in dispute was filed in
September[] 2017, some four months ago.
Substantively, there is no information in this motion
that was not previously given due consideration by the
[c]ourt and no showing that this [c]ourt disregarded or
misapplied any decisional law.[1]
This appeal followed.
II.
On appeal, plaintiff argues that the trial court abused its discretion in
denying his motion to amend and to extend discovery because he "showed due
diligence in ascertaining the owner [of the sidewalk] and filed a motion for leave
to amend as soon as possible." He similarly claims the court abused its
discretion in dismissing the complaint and denying his motion for
reconsideration. We disagree.
Appellate review of the trial court's ruling on a motion to amend the
pleadings is governed by an abuse of discretion standard. Fisher v. Yates, 270
1
The court's conclusion that plaintiff's motion for reconsideration of the
September 18, 2017 order was untimely is incorrect. Because the September 18,
2017 order did not dispose of all claims as against all parties, it was interlocutory
and subject to reconsideration at any time before entry of final judgment.
Bender v. Walgreen Eastern Co., Inc., 399 N.J. Super. 584, 593 (App. Div.
2008). However, as we indicate in our opinion, we find no error in the court's
denial of reconsideration on substantive grounds.
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N.J. Super. 458, 467 (App. Div. 1994). The same standard governs our review
of decisions on motions for reconsideration. Cummings v. Bahr, 295 N.J. Super.
374, 389 (App. Div. 1996). "In reviewing the court's exercise of discretion, we
first determine whether the court correctly applied the law." In re LoBasso, 423
N.J. Super. 475, 496 (App. Div. 2012).
When a motion to amend is "made after the statute of limitations [has] run
as to the proposed defendants," plaintiff's claim will be "time barred unless
saved by the provisions of [Rule] 4:26–4 and case law interpreting it." Marion
v. Borough of Manasquan, 231 N.J. Super. 320, 333 (App. Div. 1989).
Rule 4:26-4 permits "a plaintiff who institutes a timely action against a fictitious
defendant to amend the complaint after the expiration of the statute of limitations to
identify the true defendant." Baez v. Paulo, 453 N.J. Super. 422, 437 (App. Div.
2018) (quoting Viviano v. CBS, Inc., 101 N.J. 538, 548 (1986)).
Rule 4:26-4 provides that when "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." Thereafter, "[p]laintiff shall on motion, prior to judgment,
amend the complaint to state defendant's true name, such motion to be
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accompanied by an affidavit stating the manner in which that information was
obtained." Ibid.A party may invoke Rule 4:26-4 only if the party satisfies two phases of due
diligence: "First, a plaintiff must exercise due diligence in endeavoring to
identify the responsible defendants before filing the original complain t naming
[fictitious] parties. Second, a plaintiff must act with due diligence in taking
prompt steps to substitute the defendant's true name, after becoming aware of
that defendant's identity." Baez, 453 N.J. Super. at 439 (citation and footnote
omitted).
As a general rule, due diligence imposes "an obligation to investigate all
potentially responsible parties in a timely manner . . . ." Matynska v. Fried, 175
N.J. 51, 53 (2002). Whether a plaintiff has acted with due diligence depends on
whether the plaintiff "kn[e]w or [had] reason to know the identity" of the
proposed defendant "before filing his [or her] complaint." Cardona v. Data Sys.
Comput. Ctr., 261 N.J. Super. 232, 234–35 (App. Div. 1992).
Although we have recognized that "a crucial factor" in deciding whether
plaintiff acted with due diligence "is whether the [proposed] defendant has been
prejudiced by the delay in its identification as a potentially liable party and service
of the amended complaint," Claypotch v. Heller, Inc., 360 N.J. Super. 472, 480
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(App. Div. 2003), we have also held that the prejudice prong is "not a
requirement in fictitious party practice," Mears v. Sandoz Pharm., Inc., 300 N.J.
Super. 622, 631 (App. Div. 1997). See also Baez, 453 N.J. Super. at 444 n.10
(construing "the Court's omission of a discussion of prejudice in its more recent
opinion in Matynska" as indicating that "sometimes a plaintiff's lack of due
diligence in omitting a defendant is sufficiently clear so as to render an analysis
of actual prejudice unnecessary").
Applying these principles to the facts before us, we perceive no abuse of
discretion in the trial court's decision to deny plaintiff the benefit of Rule 4:26-4.
The record amply supports a finding that before filing his complaint, plaintiff had
sufficient information available to him to ascertain, through the exercise of due
diligence, that 80 Mallory Corp., not Mahes, owned 80 Mallory Avenue in April
2014.
According to his notice of claim, plaintiff was injured at "78-80 Mallory Ave"
on April 8, 2014, and he retained a law firm shortly thereafter to investigate and
prosecute potential claims on his behalf. Over the course of the next two years,
plaintiff's efforts in attempting to ascertain who owned the sidewalk abutting 80
Mallory Avenue consisted almost exclusively of sending a letter to the tax assessor's
office on May 2, 2014, which requested ownership information as to "78-80 Mallory
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Avenue" in Jersey City. Plaintiff admits receiving the tax assessor's May 6, 2014
reply enclosing property records for "78 Mallory Avenue, Jersey City, New Jersey,"
but because plaintiff requested ownership records for "78-80 Mallory Avenue," the
reply enclosing only 78 Mallory Ave constituted "incorrect or incomplete ownership
information," as plaintiff concedes in his merits brief. Plaintiff, however, failed to
make further inquiries regarding that omission at any time prior to filing the
complaint nearly two years later.
Further, counsel named the current owner of 80 Mallory Avenue, Mahes, as a
defendant in the complaint, which established his knowledge that plaintiff's fall
could have occurred at 80 Mallory Avenue. And, just as counsel learned of Mahes'
ownership interest, which was contained in the available tax records, an exercise of
reasonable diligence would have revealed that 80 Mallory Corp., not Mahes,
owned the property at 80 Mallory Avenue in April 2014. Plaintiff's failure to
consult known, available information that may identify a potentially liable party
prior to filing a complaint constitutes a lack of due diligence. Cardona, 261 N.J.
Super. at 235 (plaintiff's failure to request a copy of a police report, "which
revealed the names and addresses of the parties involved. . . . constituted a lack
of due diligence and foreclosed plaintiff from invoking the fictitious name
practice"); see also Mears, 300 N.J. Super. at 629 ("[E]ven if a plaintiff does not
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know the identity of a defendant, he or she will still be precluded from using
[Rule] 4:26-4, if, through the use of diligence, he or she should have known the
defendant's identity prior to running of the statute of limitations."). Plaintiff also
fails to explain why, after dismissing Mahes in November 2016, he failed to amend
the complaint to add 80 Mallory Corp.
Turning to the subject of prejudice, we disagree with plaintiff's claim that to
permit him to amend his complaint "will not prejudice the true owner." We
conclude that 80 Mallory Corp. "had a justifiable expectation to not be sued after the
two-year limitations period expired." Baez, 453 N.J. Super. at 444; see Mears, 300
N.J. Super. at 631; see also Marion, 231 N.J. Super. at 335–36 (holding that late-
joined parties who did not do "anything to conceal their identities . . . [were]
entitled to protection by the statute of repose").
Further, the prejudice to 80 Mallory Corp. goes beyond the obligation that it
defend a claim after the statutory period. While plaintiff may have conducted a
timely investigation of the condition of the sidewalk, his delay in naming 80 Mallory
Corp. has deprived it of the same right. Years have gone by and there are no
competent proofs before us that the condition of the sidewalk was the same at the
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time of plaintiff's complaint and the motion to amend.2 We consider it
fundamentally unfair, under circumstances where plaintiff's lack of diligence is
sufficiently clear, to limit a party's defense of a claim to the proofs collected by its
adversary.
We also find no error in the court's December 8, 2017 order. Plaintiff has
not identified any reversible error in the court's dismissal of Jersey City, or any
other defendant, and any claim that plaintiff had against 80 Mallory Corp. was
time barred for the reasons we have expressed. See N.J.S.A. 2A:14–2(a).
Finally, because the court properly denied plaintiff's motion to amend, and did
not overlook any "matters or controlling decisions," see Rule 4:49-2, the court
did not abuse its discretion in denying reconsideration.
To the extent not addressed, plaintiff's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
2
We note that there is no evidence in the record that 80 Mallory Corp. has ever
been made aware of plaintiff's claims.
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