NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2490-24
ADAM GREY LECUYER,
Plaintiff-Appellant,
v.
JIM CHRISTALDI & SON BUILDERS, INC.,1
Defendant,
and
1 DOLPHIN, LLC,2 and REUTER CONSTRUCTION, INC.,
Defendants-Respondents. _______________________________
Submitted April 22, 2026 – Decided May 5, 2026
Before Judges Mayer and Vanek.
1 The claims against Jim Christaldi & Son Builders, Inc. were dismissed in a September 24, 2024 stipulation of dismissal without prejudice. This defendant is not participating on appeal. 2 The claims against 1 Dolphin, LLC were dismissed with prejudice on April 16, 2025. This defendant is not participating on appeal. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0116-23.
Pender & Strickland, LLC, attorneys for appellant (Ted C. Strickland, Jr., on the brief).
Reilly McDevitt & Henrich, PC, attorneys for respondent Reuter Construction, Inc. (Frederick E. Blakelock, on the brief).
PER CURIAM
Plaintiff Adam Grey LeCuyer appeals from a February 24, 2025 order
granting summary judgment in favor of defendant Reuter Construction, Inc.
(Reuter) and a March 28, 2025 order denying reconsideration of the February
order. We affirm both orders.
Defendant 1 Dolphin, LLC owned property located at the corner of South
Iroquois Avenue and Dolphin Drive in Margate, New Jersey (Property). In
August 2020, 1 Dolphin LLC hired Reuter to demolish an existing home on the
Property. The Property has a sidewalk along South Iroquois Avenue but not
Dolphin Drive. Reuter began demolition work on November 10, 2020, and
completed the work six days later.
On or about January 25, 2021, LeCuyer allegedly "tripped over a hole in
the sidewalk" on South Iroquois Avenue adjacent to the Property. LeCuyer
A-2490-24 2 believed construction work at the Property damaged the sidewalk, causing him
to trip and fall.
After he fell, LeCuyer took a photograph of the damaged sidewalk. The
photograph did not depict any spray paint or other markings indicating damage
to the sidewalk.
According to Reuter, its demolition equipment never accessed the
Property from South Iroquois Avenue. Reuter maintained it did not damage the
sidewalk where LeCuyer allegedly tripped.
Reuter's president, Jonathan Hansen, explained there was no damage to
the sidewalk when Reuter completed demolition work at the Property.
According to Hansen, if Reuter damaged "a sidewalk in the course of a
demolition project [it was standard procedure] to spray paint the area of the
cracks/damage . . . so that the owner of the property could identify the area that
required repair."
Hansen stated the sidewalk shown in LeCuyer's photograph did not reflect
the condition of the sidewalk when Reuter left the Property. 1 Dolphin, LLC
averred it inspected the Property between November 16 and 20, 2020, and there
was no damage to the sidewalk.
A-2490-24 3 At the time of LeCuyer's alleged fall, the Property displayed a wood sign
with the name of a custom home builder, "Jim Christaldi & Son." The sign
included a telephone number.
Hansen testified at his deposition that Reuter's demolition equipment was
"clearly marked with the name '[Reuter],' such that anyone who saw the trucks
or other equipment could identify the owner of the equipment as Reuter."
LeCuyer admits he "was aware that Reuter had performed work . . . in the
vicinity of [the Property]," but claims he "was not aware that Reuter had
performed work at [the Property]."
On January 20, 2023, LeCuyer filed a personal injury action against
defendant Jim Christaldi & Son Builders, Inc. (Christaldi) and several fictitious
defendants. LeCuyer alleged defendants negligently (1) "maintain[ed] a
dangerous condition which was negligently created and/or allowed to remain";
(2) "[f]ail[ed] to inspect the area where" he fell; (3) "fail[ed] to have proper
lighting, signals or warnings relative to the dangerous condition" causing him to
fall; and (4) "fail[ed] to maintain the area in question in a safe condition." As a
result of defendants' negligence, LeCuyer claimed he "suffered injuries
requiring medical treatment," and incurred economic losses due to his pain and
A-2490-24 4 suffering. Two weeks later, LeCuyer amended his complaint to name 1 Dolphin,
LLC as a defendant.
On April 17, 2023, Christaldi informed LeCuyer that Reuter performed
demolition work at the Property. Christaldi explained it did no work at the
Property until months after LeCuyer's alleged fall. According to Christaldi, by
the time it installed the sign on the Property, "the prior house had already been
demolished, the site cleared, and a wooden barrier fence was erected around the
vacant property." Christaldi further told LeCuyer that it did not hire Reuter and
did not perform any work at the Property until June 2021. Christaldi believed 1
Dolphin, LLC retained Reuter.
On June 14, 2023, LeCuyer filed a second amended complaint naming
Reuter as a defendant in place of a fictitious party defendant. At that time,
defendants had not filed answers, and no discovery had been exchanged.
Reuter answered the second amended complaint, denying LeCuyer's
allegations and asserting several affirmative defenses. One of the affirmative
defenses asserted LeCuyer's claims were barred by the statute of limitations.
About a month later, Christaldi and 1 Dolphin LLC filed answers denying
LeCuyer's claims.
A-2490-24 5 The parties engaged in discovery and took depositions. During his
deposition, Hansen stated Reuter obtained permits from Margate to perform
demolition work at the Property. Hansen also testified there was no sidewalk
damage before or after Reuter's demolition work. While Hansen conceded
Reuter's equipment could cause damage to a sidewalk, he denied any machines
traversed the sidewalk where LeCuyer claimed to have fallen. According to
Hansen, Reuter first learned of LeCuyer's allegations upon being served with
the June 14, 2023 second amended complaint.
After the close of discovery, Reuter moved for summary judgment.
LeCuyer opposed the motion. The judge heard counsels' arguments on February
24, 2025.
The judge granted Reuter's motion. The judge agreed LeCuyer's causes
of action arose from the same incident for purposes of relating back under Rule
4:9-3. The judge explained:
A defendant who has timely notice of the pendency of an action cannot reasonably object to the late assertion against that defendant provided he is reasonably chargeable with the knowledge that those other claims would have been timely asserted against him but for [p]laintiff's error or lack of information and the late assertion does not prejudice [d]efendant in maintaining its defense.
A-2490-24 6 In considering Reuter's statute of limitations defense, the judge stated the
issue was "whether [LeCuyer's] amendment [wa]s a new defendant being added
or just correct[ed] the name of the defendant in []his original complaint." If
Reuter was a new defendant, the judge explained LeCuyer had to show Reuter
"had notice of the action prior to the running of the [s]tatute of [l]imitations and
that Reuter would not be prejudiced in maintaining [a] defense on the merits and
knew or should have known, but for an error of identification[,] the action would
have been brought against Reuter."
The judge held "Reuter [wa]s a new party with a distinct and separate legal
identity from any other named defendant." Therefore, the judge explained that
"allowing [LeCuyer]'s second amended complaint to relate back to the filing of
[his] original complaint would affect Reuter's substantial rights" unless "Reuter
had notice of the institution of [LeCuyer's] action." The judge found LeCuyer
failed to establish "proof of such notice."
The judge rejected LeCuyer's reliance on the discovery rule in opposition
to summary judgment. In explaining the discovery rule, the judge stated: "[A]
cause of action will be held not to accrue until the injured party discovers or by
an exercise of reasonable diligence and intelligence should have discovered that
he may have a basis for an actionable claim." The judge concluded the discovery
A-2490-24 7 rule did not apply because LeCuyer "was aware he suffered an injury at the time
of the fall," "was aware of the causal connection between his injury and the
broken sidewalk," and "was aware that the wrongful conduct occurred." The
judge found "[a] simple call to Christaldi would have yielded the identity of the
additional [d]efendants well before the running of the [s]tatute of [l]imitation s"
or, alternatively, LeCuyer could have called the municipality and requested
building permits for the property during the relevant time period. Thus, the
judge found the discovery rule was inapplicable.
The judge then addressed LeCuyer's argument regarding the fictitious
pleading rule allowing for process to issue against a fictitious defendant "if a
defendant's true name is unknown," provided there is "an appropriate description
sufficient for identification." R. 4:26-4. The judge explained the fictitious
pleading rule "is used properly" when an "amended complaint identifying the
defendant by its true name relates back to the time of the filing of the original
complaint." For the rule to apply, the judge stated a plaintiff must "act with due
diligence in attempting to identify and sue the responsible parties within the
[s]tatute of [l]imitations."
Applying well-settled law, the judge found LeCuyer failed to exercise the
required due diligence in identifying Reuter as a defendant within the period of
A-2490-24 8 limitations for his personal injury action. Thus, the judge found LeCuyer's
claims barred by the applicable statute of limitations.
Even if LeCuyer's claims had been timely filed, the judge explained
Reuter was still entitled to summary judgment because "there [wa]s no factual
basis on this record [nor] evidence that a rational fact finder could use to
conclude that Reuter caused the damage to the sidewalk in the area where
[LeCuyer] fell." The judge expressly found:
There's no evidence on this record that Reuter accessed the [P]roperty by [South] Iroquois Avenue nor the sidewalk. There [wa]s no dispute that Reuter had stopped working at the [P]roperty by November 16, 2020. There's no dispute to . . . Hans[e]n['s] . . . testimony that he insured that the job site was safe, clean and that he testified there was no damage to the sidewalk.
The judge also found no evidence in the record "that Reuter was . . . negligent
with regard to the sidewalk[]" and "no evidence . . . the broken sidewalk was
caused by Reuter." The judge concluded it would be inappropriate to permit a
jury to speculate about the damaged sidewalk. Based on these findings, the
judge granted summary judgment to Reuter and dismissed LeCuyer's complaint
with prejudice.
LeCuyer moved for reconsideration. In support of his reconsideration
motion, LeCuyer submitted a March 10, 2025 affidavit. This affidavit post-
A-2490-24 9 dated the February 24, 2025 order granting summary judgment to Reuter.
According to the belatedly submitted affidavit, LeCuyer claimed he "was not
aware Reuter had performed work at the [Property]" until he received
Christaldi's letter. LeCuyer claimed that if he had known Reuter worked at the
Property, he would have informed his attorney. Although LeCuyer's attorney
acknowledged LeCuyer knew Reuter worked near the Property, he maintained
LeCuyer had "no specific knowledge or reason to believe that Reuter . . . ever
worked at the [Property]." According to LeCuyer's attorney, "[a] reasonable
person that falls at a construction site with a contractor's sign at that site would
reasonably conclude that they have the correct party unless they're instructed
otherwise."
In denying reconsideration, the judge concluded LeCuyer's new
certification proffered information the judge expected LeCuyer would have
presented in opposition to Reuter's summary judgment motion. The judge found
LeCuyer failed to provide "any additional evidence," nor was "anything on the
record that would alter [her] prior findings." The judge reiterated her reasons
for granting summary judgment. Specifically, the judge cited LeCuyer's failure
to act with the required due diligence to identify Reuter as a potential defendant.
A-2490-24 10 On appeal, LeCuyer argues Reuter waived its statute of limitations
defense by failing to pursue the defense earlier. Alternatively, LeCuyer
contends the judge should have applied the statute of limitations and fictitious
pleading rules liberally in the interest of justice. Additionally, LeCuyer asserts
the judge erred in granting summary judgment because there was a genuine
dispute of material fact whether Reuter was liable for the sidewalk damage. We
reject these arguments.
We review orders granting summary judgment de novo, applying the same
standard as the motion judge. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). Under
that standard, we must "determine whether 'the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law.'" Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)). "To
decide whether a genuine issue of material fact exists, the trial court must 'draw[]
all legitimate inferences from the facts in favor of the non-moving party.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original) (quoting
Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "To the extent that the
grant or denial of summary judgment is based on an issue of law, [appellate
A-2490-24 11 courts] owe no deference to an interpretation of law that flows from established
facts." State v. Perini Corp., 221 N.J. 412, 425 (2015) (citing Town of Kearny
v. Brandt, 214 N.J. 76, 92 (2013)). The court must "consider whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Brill v.
Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995).
We first address LeCuyer's argument the judge erred in dismissing his
negligence claims as barred by the two-year statute of limitations. We disagree.
"Statutes of limitations are designed to stimulate litigants to pursue their
causes of action diligently and 'to spare the courts from litigation of stale
claims.'" Farrell v. Votator Div. of Chemtron Corp., 62 N.J. 111, 115 (1973)
(quoting Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945)).
"[S]tatutes of limitations are statutes of repose and the principal consideration
underlying their enactment is one of fairness to the defendant." Lopez v. Swyer,
62 N.J. 267, 274 (1973) (citing Developments in the Law: Statutes of
Limitations, 63 Harv. L. Rev. 1177, 1185 (1950)).
New Jersey's statute of limitations for tort actions provides: "[E]very
action at law for an injury to the person caused by the wrongful act, neglect or
A-2490-24 12 default of any person within this State shall be commenced within two years
next after the cause of any such action shall have accrued." N.J.S.A. 2A:14 -
2(a). Under this statute, LeCuyer was required to file his personal injury action
within two years from the date of the incident in the absence of certain
exceptions.
LeCuyer allegedly tripped and fell on January 25, 2021. He filed his
original personal injury complaint on January 20, 2023. Six months later,
LeCuyer amended his complaint to name Reuter in place of a fictitiously
designated party. The June 2023 amended complaint was filed after expiration
of the two-year statute of limitations.
For LeCuyer's June 2023 amended complaint to fall within the statute of
limitations, the amended pleading had to relate back to LeCuyer's original
complaint. See R. 4:9-3. The judge found LeCuyer's June 2023 amended
complaint, naming Reuter as a new defendant, did not relate back to the original
complaint. Therefore, the judge concluded the claims against Reuter were time-
barred.
LeCuyer next argues Reuter waived its statute of limitations defense by
failing to pursue the defense earlier. LeCuyer also claims the judge erred in
A-2490-24 13 finding he failed to act diligently in identifying Reuter and should have relaxed
the statute of limitations and applied the fictitious pleading rule.
Contrary to LeCuyer's argument, Reuter did not waive its statute of
limitations defense. The defense was among the many affirmative defenses
asserted in Reuter's answer to LeCuyer's June 2023 amended complaint.
Because he acknowledged Reuter's answer included the statute of
limitations as an affirmative defense, LeCuyer contends Reuter lacked any
factual or legal basis for the defense at the time it was asserted. For the first
time on appeal, LeCuyer asserts Reuter waived the defense and, therefore, his
negligence claims were not barred.
"[A]ppellate courts will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such a presentation
is available 'unless the questions so raised on appeal go to the jurisdiction of the
trial court or concern matters of great public interest.'" Nieder v. Royal
Indemnity Insurance Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co.,
Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). At no time did
LeCuyer raise Reuter's waiver of the statute of limitations defense in his
submissions to the trial court. LeCuyer's attorney only mentioned the issue
briefly during oral argument on the reconsideration motion. Because LeCuyer's
A-2490-24 14 waiver argument does not involve the court's jurisdiction or a matter of public
interest, we could decline to consider the argument.
Even if we considered LeCuyer's belatedly raised waiver argument, we
are satisfied Reuter did not waive the statute of limitations defense. Rule 4:5-4
permits a party to assert the "statute of limitations" as an affirmative defense in
a responsive pleading. The parties agree Reuter included a statute of limitations
defense in its answer to LeCuyer's June 2023 amended complaint. Therefore,
there is no dispute Reuter preserved the defense. See Baez v. Paulo, 453 N.J.
Super. 422, 446-47 (App. Div. 2018) (finding statute of limitations defense
preserved throughout litigation if raised in an answer).
LeCuyer mistakenly relies on White v. Karlsson, 354 N.J. Super. 284, 289
(App. Div. 2002), to argue Reuter's simply pleading the statute of limitations
did not preserve the defense. However, this case is factually distinguishable
from White. That case involved a defendant who filed numerous affirmative
defenses, including a statute of limitations defense, without any "possible basis
in fact" and without conducting any discovery aimed to support a statute of
limitations defense. 354 N.J. Super. at 286-88. In White, the defendant admitted
"[s]he did not recognize the possibility of a statute-of-limitations defense until
shortly before trial." Id. at 290. As a result, we found the defendant in White
A-2490-24 15 violated Rule 1:4-8 by including frivolous affirmative defenses and violated
Rule 4:5-4 by not conducting a reasonable inquiry before asserting a statute of
limitations defense. Ibid.
In this case, Reuter's statute of limitations defense was supported by the
facts and the law. During discovery, Reuter sought to depose LeCuyer to
determine whether LeCuyer knew about Reuter's work at the Property before he
filed his personal injury action. See Cipriani Builders, Inc. v. Madden, 389 N.J.
Super. 154, 172-73 (App. Div. 2006) (holding a statute of limitations defense
was not waived by defendants' failure to move for summary judgment earlier
because defendants required discovery to determine the viability of the defense).
On this record, we are satisfied Reuter took timely steps to support its statute of
limitations defense and, therefore, it did not waive the defense.
We next address LeCuyer's argument that the judge should not have
strictly applied the statute of limitations or the fictitious pleading rule, Rule 4:9-
3, because Reuter was not prejudiced by any delay in his naming it as a
defendant.
Rule 4:9-3 states:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the
A-2490-24 16 date of the original pleading; . . . An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party to be brought in by amendment.
Rule 4:26-4 provides: "[I]f 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." The Rule requires a plaintiff to amend the complaint upon the
filing of a motion, stating the defendant's true name, accompanied by an
affidavit stating the manner in which the plaintiff obtained that information. Our
New Jersey Supreme Court "recognized that an amended complaint identifying
the defendant by its true name relates back to the time of filing of the original
complaint, thereby permitting the plaintiff to maintain an action that, but for the
fictitious-party practice, would be time-barred." Viviano v. CBS, Inc., 101 N.J.
538, 548 (1986) (citing Farrell, 62 N.J. at 120-23).
While "[c]ompliance with the Rules of [Court] is essential for an orderly
legal system," the goal "is not so much rigid compliance with the letter of the
A-2490-24 17 Rules as it is the attainment of substantial justice." Id. at 550. Under Rule 1:1-
2(a), the requirements of Rules 4:9-3 and 4:26-4 may be relaxed if rigid
application would produce an unjust result.
LeCuyer's reliance on Farrell and Viviano is misplaced. In Viviano, the
Court identified several factors a plaintiff must demonstrate to invoke the
protection of the fictitious pleading rule after the expiration of the statute of
limitations. 101 N.J. at 553. Among the factors a plaintiff must show is "the
new defendant had sufficient notice of the institution of the action not to be
prejudiced in maintaining his or her defense" and "the new defendant knew or
should have known that, but for the misidentification of the proper party, the
action would have been brought against him or her." Ibid.
As the judge found in this matter, LeCuyer could have called Christaldi
between January 2021 and April 2023 and asked who performed work at the
Property. Alternatively, the judge found LeCuyer could have contacted the
municipality to identify anyone who obtained municipal permits for work at the
Property. The sign at the Property included a telephone number for "Jim
Christaldi & Son," and LeCuyer could have called that number to inquire who
worked at the Property on or before January 2021 when LeCuyer allegedly
A-2490-24 18 tripped and fell. Because LeCuyer failed to take these basic steps, the judge
concluded relaxation of the fictitious pleading rule was not warranted.
Additionally, LeCuyer argues Reuter failed to demonstrate "prejudice"
attributable to the delay in naming it as a defendant in place of a fictitiously
identified party. However, LeCuyer was still required to demonstrate Reuter
had notice of the personal injury action or knew or should have known that, but
for a mistake in identifying Reuter as the proper party, the personal injury action
would have been filed against Reuter earlier.
Reuter first learned about LeCuyer's claims in June 2023. That date was
five months after the statute of limitations had expired. Because LeCuyer failed
to conduct the necessary diligence to afford Reuter sufficient notice of the
claims made against it, the judge did not err in applying the statute of limitation s
and dismissing LeCuyer's complaint as time-barred.
We also reject LeCuyer's argument that there was a genuine issue of
material fact precluding summary judgment as a matter of law. LeCuyer argues
he presented sufficient evidence to allow a jury to decide if Reuter damaged the
sidewalk causing him to trip and fall.
Here, the judge granted summary judgment to Reuter because "there [wa]s
no factual basis on this record [nor] evidence that a rational fact finder could use
A-2490-24 19 to conclude that Reuter caused the damage to the sidewalk in the area where
[LeCuyer] fell." The judge found LeCuyer failed to provide evidence that
Reuter's machines traversed the South Iroquois Avenue sidewalk. The judge
properly rejected LeCuyer's argument that a jury could infer Reuter damaged
the sidewalk because Reuter had the ability and opportunity to damage the
sidewalk during its demolition work as LeCuyer offered only unsupported
speculation to support such an inference.
We next consider LeCuyer's argument the judge erred in denying his
motion for reconsideration. We review a trial court's order on a reconsideration
motion under an abuse-of-discretion standard. Branch, 244 N.J. at 582. "An
abuse of discretion 'arises when a decision is made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440
N.J. Super. 378, 382 (App. Div. 2015) (quoting Flagg v. Essex Cnty. Prosecutor,
171 N.J. 561, 571 (2002)) (internal quotation marks omitted).
Because we agree the judge properly granted summary judgment to
Reuter, the judge did not abuse her discretion in denying LeCuyer's motion for
reconsideration in which he re-argued the same issues.
Affirmed.
A-2490-24 20