GODWIN OKEKE VS. COOLIDGE PROPERTIES, LLC (L-1299-13, 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NOT FOR PUBLICATION WITHOUT THE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-1170-16T4
GODWIN OKEKE,
Plaintiff-Appellant,
v.
COOLIDGE PROPERTIES, LLC,
and DANTE MANAGEMENT,
Defendants-Respondents,
and
TOWNSHIP OF IRVINGTON,
Defendant.
Argued May 15, 2018 - Decided June 13, 2018
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-1299-13.
Charles C. Chikezie argued the cause for
appellant.
Danielle M. DeGeorgio argued the cause for
respondents (Faust Goetz Schenker & Blee, LLP,
attorneys; Danielle M. DeGeorgio, on the
brief).
PER CURIAM
Plaintiff Godwin Okeke appeals from an August 9, 2016 order
denying his motion to reinstate his complaint and granting a cross-
motion filed by defendants Coolidge Properties, LLC (Coolidge) and
Dante Management (Dante) dismissing the complaint with prejudice.
Plaintiff also appeals from an October 5, 2016 order denying his
motion for reconsideration. We affirm.
The facts relevant to plaintiff's personal injury action are
undisputed. On February 14, 2011, plaintiff slipped and fell on
snow or ice on a sidewalk adjacent to his apartment building. As
a result, plaintiff suffered a bimalleolar ankle fracture
requiring surgery. In February 2011, the apartment building was
owned by Coolidge and managed by Dante.1 Charles Holthausen, Sr.
(Charles Sr.) was the superintendent and maintenance person in
charge of snow and ice removal at the apartment building in
February 2011.
Plaintiff filed a personal injury complaint on February 14,
2013. In August 2013, plaintiff's complaint was dismissed without
prejudice for lack of prosecution. Dante was not served with the
1
Coolidge sold the apartment building prior to the filing of
plaintiff's complaint. Dante sold its interest related to
management of the apartment building sometime in 2011.
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complaint until June 2014 and Coolidge was not served with the
complaint until July 2014.2
Because plaintiff's complaint was still dismissed in 2014,
defendants were unable to file answers. On January 31, 2015,
Charles Sr. died. Defendants contend Charles Sr. was the person
with knowledge regarding snow and ice removal at the apartment
building on the date of plaintiff's fall. Plaintiff took no
further action to pursue his case until June 9, 2015, when he
filed a motion to restore his complaint to the active trial
calendar.
On June 26, 2015, the motion judge heard argument on the
motion to restore the complaint. Plaintiff claimed events in his
personal life "prohibited him from discussing the [case] or
contacting his attorney." In opposition to the motion, defendants
argued that plaintiff's twenty-eight month delay in prosecuting
his claims prejudiced their ability to present a defense.
Defendants explained that since plaintiff's fall in 2011, the
building was sold, the management company ceased to exist, the
sidewalks were replaced, and they were unsure whether Charles Sr.
was still alive.
2
The record does not indicate whether defendant Township of
Irvington was ever served with the complaint.
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The judge denied plaintiff's motion to restore his complaint.
However, the judge agreed to reinstate the complaint for a sixty-
day period "for the limited purpose of allowing discovery by the
parties on the issue of whether or not there is actual prejudice
to the defendant[s]."
On August 14, 2015, defendants moved to dismiss the complaint
with prejudice, arguing the death of Charles Sr. and plaintiff's
inexcusable delay in prosecuting his claims resulted in actual
prejudice to their ability to defend the matter. On September 4,
2015, the same motion judge heard argument on defendants' motion.3
The judge denied defendants' motion based on plaintiff's
contention that Charles Holthausen, Jr. (Charles Jr.), the son of
Charles Sr., worked for defendants and might have knowledge
relevant to plaintiff's case.
The parties then deposed Charles Jr. regarding plaintiff's
fall on February 14, 2011. According to his deposition testimony,
Charles Jr. occasionally helped his father with duties related to
the property, including snow removal and salting. However, Charles
Jr. testified he was not responsible for snow and ice removal at
3
On that date, the judge issued another dismissal notice,
advising plaintiff that on November 3, 2015, the matter would
again be dismissed without prejudice for lack of prosecution.
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the property in February 2011. In addition, Charles Jr. had no
recollection of any snow removal activities on February 14, 2011.
Because plaintiff failed to file a motion to restore his
complaint, on November 6, 2015, the trial court dismissed the
complaint for lack of prosecution. Seven months later, plaintiff
filed a motion to reinstate his complaint and defendants filed a
cross-motion to dismiss the complaint with prejudice.
The motion judge denied plaintiff's motion and granted
defendants' cross-motion on August 9, 2016. The judge found
Charles Jr. was not the building superintendent in February 2011,
was not responsible for snow removal at the apartment building in
2011, and had no recollection of the snow storm on February 14,
2011. Based on the death of Charles Sr., the judge concluded
defendants suffered actual prejudice due to plaintiff's delay in
reinstating the complaint.
The judge also determined plaintiff failed to demonstrate
good cause in restoring the matter. In attempting to show good
cause, plaintiff explained he lost his job as a result of his
injuries and was homeless until August 2014. Plaintiff asserted
he was unable to deal with his lawsuit due to the pain attributable
to his February 2011 injury. The motion judge rejected plaintiff's
explanations, stating
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[t]here has been absolutely no explanation,
despite the hardships in the plaintiff's life
that the [c]ourt will assume existed during
that time period. That doesn't provide any
explanation for why the plaintiff didn't reach
out to his attorney, keep him apprised of
where he is, give his attorney some means to
communicate with him, so that if there had to
be discovery, it could be completed.
It has to be kept in mind here that the person
who delayed was the person who brought the
lawsuit. . . . [P]laintiff basically abandoned
his lawsuit until such time as it was more
convenient for him to get in touch with
plaintiff's [c]ounsel and seek to pursue the
litigation a bit further.
Plaintiff moved for reconsideration of the August 9, 2016
order. The judge denied the motion on October 5, 2016, concluding
plaintiff failed to present any facts, evidence, or controlling
law overlooked by the court. In denying the motion for
reconsideration, the judge stated "thinking that the [j]udge [was]
wrong is not a grounds for a motion for reconsideration."
On appeal, plaintiff argues the motion judge erred in
dismissing his complaint with prejudice and denying his motion for
reconsideration because he satisfied the good cause standard for
reinstatement of his pleading.
We review "an order denying reinstatement of a complaint
dismissed for lack of prosecution . . . under an abuse of
discretion standard." Baskett v. Kwokleung Cheung, 422 N.J.
Super. 377, 382 (App. Div. 2011). We "decline[] to interfere with
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[such] matter of discretion unless it appears that an injustice
has been done." St. James AME Dev. Corp. v. City of Jersey City,
403 N.J. Super. 480, 484 (App. Div. 2008) (alteration in original)
(quoting Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 23
(App. Div. 2007)).
Rule 1:13-7(a) provides for reinstatement of a dismissed
complaint upon the filing of a motion, which shall be granted on
good cause shown if the motion for reinstatement is filed within
ninety days of the order of dismissal.4 In applying Rule 1:13-7,
"courts have been consistent in following prior case law by
engrafting an 'absence of prejudice to the defendant' standard
onto the 'good cause' standard." Pressler & Verniero, Current
N.J. Court Rules, cmt. 1.2 on R. 1:13-7 (2018).
"[A]bsent a finding of fault by the plaintiff and prejudice
to the defendant," motions to reinstate a complaint dismissed for
lack of prosecution should be viewed liberally. Ghandi v.
Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007). In
considering the prejudice to a defendant in reviewing a motion to
reinstate pursuant to Rule 1:13-7, "[t]he key determinate . . .
is whether 'specific or demonstrable prejudice' was inflicted upon
4
The judge applied the more liberal "good cause" standard of
Rule 1:13-7(a) despite the passage of more than ninety days from
the order of dismissal (November 6, 2015) until plaintiff filed a
motion to restore his complaint (June 9, 2016).
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the defendant. . . . To that end, '[t]he principal concern in
determining prejudice is impairment of the defendant's ability to
present a defense on the merits.'" Stanley v. Great Gorge Country
Club, 353 N.J. Super. 475, 490 (Law Div. 2002) (fourth alteration
in original) (quoting State v. One 1986 Subaru, 120 N.J. 310, 315
(1990)). "[T]he prejudice alleged must be concrete and not
hypothetical." Ibid.; see also Moschou v. DeRosa, 192 N.J. Super.
463, 467 (App. Div. 1984).
Here, plaintiff, not his attorney, caused the inordinate
delay in prosecuting this matter, resulting in concrete prejudice
to defendants. The prejudice included the following: the death
of defendants' key witness in 2015; the sale of the property in
2011; the replacement of the sidewalks in 2011, and the cessation
of operations by the management company in or about 2011.
Consequently, defendants were denied an opportunity to defend in
this case.
We reject plaintiff's argument that the pain associated with
his 2011 injury satisfied good cause favoring reinstatement of the
complaint. Rule 1:13-7 prompts litigants to take action or risk
dismissal of a complaint. Plaintiff was advised twice that he
needed to take action regarding his complaint or face dismissal
of his claims. If plaintiff had contacted his attorney, counsel
would have taken action to pursue plaintiff's claims. However,
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plaintiff elected not to contact his counsel for nearly two years
after filing his complaint.
Nor do we find merit in plaintiff's argument that the testimony
of Charles Jr. supports his claims. Having reviewed the record,
we agree that Charles Jr. had no responsibility to remove the snow
or ice and had no specific recollection of any snow event preceding
the incident. Moreover, since the property was sold in 2011,
defendants no longer have access to records or documents evidencing
maintenance, repairs, or snow removal in 2011. Plaintiff's
inexplicable delay in prosecuting his case caused defendants to
lose any opportunity to defend against his claims.
We review reconsideration motions for abuse of discretion.
Cumming v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Rule
4:49-2 provides that a party may file a motion for reconsideration
seeking to alter or amend a judgment or order, as long as the
motion "state[s] with specificity the basis on which it is made,
including a statement of the matters or controlling decisions
which counsel believes the court has overlooked or as to which it
has erred." R. 4:49-2.
We find no abuse of discretion in the judge's denial of
reconsideration. Plaintiff failed to present any facts or evidence
overlooked by the court in the first instance.
Affirmed.
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