Edward McNeill, Jr. v. Port Authority of Ny & Nj

• Court: New Jersey Superior Court Appellate Division
• Decided: January 2, 2026
• Docket: A-2698-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2698-24

EDWARD McNEILL, JR.,

Plaintiff-Appellant,

v.

PORT AUTHORITY OF NY & NJ and GARDAWORLD, 1

Defendants-Respondents. ___________________________

UNITED AMERICAN SECURITY, LLC d/b/a GARDAWORLD SECURITY SERVICES i/p/a GARDAWORLD,

Third-Party Plaintiff,

EWR CONRAC, LLC and SIXT RENT A CAR, LLC,

1 GardaWorld is not participating in this appeal and has not filed a brief. The record shows the pleadings were corrected to indicate the proper name for GardaWorld is "United American Security, LLC," doing business as "GardaWorld Security Services." We refer to this defendant as "GardaWorld" in our opinion. Third-Party Defendants. ___________________________

EWR CONRAC, LLC,

Fourth-Party Plaintiff,

LANE VALENTE INDUSTRIES, INC.,

Fourth-Party Defendant. ___________________________

Argued December 16, 2025 – Decided January 2, 2026

Before Judges Firko and Vinci.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1864-23.

Christopher P. Gargano (Christopher P. Gargano, PC) argued the cause for appellant.

Timothy P. Malacrida argued the cause for respondent Port Authority of NY & NJ (Kirmser, Cunningham & Skinner, attorneys; Timothy P. Malacrida, of counsel and on the brief).

PER CURIAM

On leave granted, plaintiff Edward McNeill, Jr. appeals from a January

31, 2025 order denying his motion for leave to file and serve a second amended

complaint seeking to substitute EWR ConRAC, LLC (EWR ConRAC) and SIXT

A-2698-24 2 Rent-A-Car, LLC (SIXT) for fictitiously named parties. Plaintiff also appeals

from a March 14, 2025 order denying his motion for reconsideration. Having

reviewed the record and applicable law, we reverse.

I.

The relevant facts are undisputed. On June 8, 2022, plaintiff was

operating a shuttle vehicle in the course of his employment with EDS Service

Solutions (EDS) at the QTA Lot at Newark Liberty International Airport in

Newark. While plaintiff was driving over a hydraulic gate embedded in the

ground, the gate suddenly and violently rose, propelled his vehicle upward, and

caused him to hit his head against the interior roof. As a result, plaintiff

sustained injuries to his head, neck, back, and right leg. In November 2022,

plaintiff sent Port Authority of New York & New Jersey (Port Authority) a

notice of intent to file a tort claim, and Port Authority responded by

acknowledging the incident in writing.

On May 26, 2023, plaintiff filed a complaint in the Law Division. On

June 6, 2023, he filed an amended complaint, the operative pleading here, to

correct the spelling of his last name. Plaintiff named Port Authority2 and

2 We note the statute of limitations (SOL) for claims against Port Authority is one year, N.J.S.A. 32:1-163. A-2698-24 3 GardaWorld as defendants and listed fictitious defendants to "designate persons

or entities whose real identities are presently unknown."

The amended complaint against the fictitious defendants alleged:

1. On or about June 8, 2022, . . . [McNeill] . . . was lawfully travel[]ing in his vehicle at or near the entrance gate . . . which was owned, operated, controlled[,] and leased, subleased, maintained, constructed, repaired, supervised, or inspected by the defendants.

2. At all times mentioned herein, the premises and/or parts or components thereof were designed, manufactured, assembled, sold, distributed, modified, repaired, installed, serviced, maintained, constructed, or otherwise placed into the stream of commerce by the defendants. ....

In his amended complaint, plaintiff demanded discovery from Port

Authority and GardaWorld, including answers to form C interrogatories, the

names and addresses of all proposed expert witnesses with any written reports,

treating physicians expected to testify at trial, written reports related to the

accident, photographs or videos from the accident, and disclosure of any

personal injury claims, lawsuits, or injuries related to the accident that defendant

might possess. Further, plaintiff requested party statements, witness identities,

documents regarding inspection, maintenance, or repair of the property or gate's

condition, vehicle maintenance and repair records, contracts between any

A-2698-24 4 parties, and defendants' addresses. He also requested any insurance agreements

which may afford coverage to satisfy, indemnify, or reimburse, part of or all of

a judgment against defendants. The amended complaint informed defendants of

their requirement to produce this discovery within thirty days.

On August 1, 2023, Port Authority filed a stipulation extending its time to

answer to September 8, 2023. On August 4, 2023, GardaWorld filed an answer

to plaintiff's amended complaint.

On September 8, 2023, Port Authority filed an answer to plaintiff's

amended complaint. In its answer, Port Authority admitted it "leases Newark

Airport pursuant to a long-term lease agreement and the Port Authority controls

only those portions of Newark Airport not owned, operated, maintained, and

controlled by others pursuant to lease, license, permit, contract, or other written

agreement or by virtue of their use and occupancy or operations thereat ," but

Port Authority did not state to whom it leased the subject premises. Pursuant to

Rule 4:5-1(b)(2),3 Port Authority certified that "all known necessary parties have

been joined in this action."

3 Rule 4:5-1(b)(2) provides:

[E]ach party shall disclose in the certification the names of any non-party who should be joined in the action

A-2698-24 5 The case was designated as a track II personal injury case and assigned

three hundred days of discovery. Plaintiff filed two motions to extend the

discovery end date (DED), which ultimately was extended to October 27, 2024.

On July 10, 2024, after the two-year SOL pursuant to N.J.S.A. 2A:14-2(a)

applicable to plaintiff's claims against EWR ConRAC and SIXT expired,

GardaWorld responded to plaintiff's interrogatories and identified them as

potentially liable entities.

In August 2024, Port Authority served its answers to plaintiff's

interrogatories—almost nine months overdue—disclosing for the first time a

lease agreement with EWR ConRAC to maintain the subject premises, and that

SIXT contracted with GardaWorld to operate the gate.

In January 2025, plaintiff filed a motion for leave to amend his amended

complaint to substitute the newly discovered entities, EWR ConRAC and SIXT,

for fictitiously named defendants XYZ Entity 1 and XYZ Entity 2, and to correct

pursuant to R[ule] 4:28 or who is subject to joinder pursuant to R[ule] 4:29-1(b) because of potential liability to any party on the basis of the same transactional facts. Each party shall have a continuing obligation during the course of the litigation to file and serve on all other parties and with the court an amended certification if there is a change in the facts stated in the original certification.

A-2698-24 6 the names of two defendants. The latter is not challenged on appeal. Port

Authority opposed plaintiff's motion on the basis the claims were futile as they

could not relate back to the date of the original complaint under any applicable

authority. The court denied plaintiff's motion to substitute EWR ConRAC and

SIXT, concluding he failed to add an appropriate description sufficient for

identification and cited Rule 4:26-4, "[a] plaintiff utilizing a fictitious party

designation must 'add[] an appropriate description [of the unknown party]

sufficient for identification.'"

In February 2025, plaintiff filed a motion for reconsideration and

requested oral argument if opposed. Plaintiff argued reconsideration was

warranted because: (1) the court misapplied Rule 4:26-4's requirements for

utilizing fictitious party substitution; (2) defendants actively concealed the

identities of the other potential defendants until after the SOL expired; and (3)

defendants erroneously certified all necessary parties had been joined in the

action. Plaintiff asserted he exercised due diligence in attempting to ascertain

the identities of the fictitious defendants and that he provided a "functional

description of the responsible parties," under Rule 4:5-2,4 because he identified

4 Rule 4:5-2 provides:

A-2698-24 7 the accident location, alleged that the premises were owned, operated,

controlled, leased, maintained, or inspected by defendants, and described the

dangerous condition.

Port Authority opposed plaintiff's motion for reconsideration , arguing he

failed to demonstrate due diligence, and that his description of fictitious

defendants was insufficient for identification because he failed to differentiate

them in "any specific capacity." The court denied plaintiff's request for oral

argument and his motion for reconsideration. A memorializing order was

entered.

On March 18, 2025, GardaWorld filed a motion seeking leave to file a

third-party complaint against EWR ConRAC and SIXT. Counsel for

GardaWorld submitted a certification in support of the motion , stating that on

the date of the incident, plaintiff was a driver for EDS, and as he entered the

Except as may be more specifically provided by these rules in respect of specific actions, a pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim or third-party claim, shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement . . . .

A-2698-24 8 SIXT lot, "[t]he gate at the entrance to the lot went down," and as he drove over

the gate, it "went up" and struck his vehicle.

Counsel certified the property where the gate was located was owned by

Port Authority. Counsel explained Port Authority "had entered into a lease

agreement with EWR ConRAC," and "EWR ConRAC was to maintain the

premises." Counsel further certified that EWR ConRAC entered into a "sub -

lease agreement" with SIXT, and an agreement with GardaWorld, to "provide

security services at the lot."

On April 11, 2025, the court granted GardaWorld's motion for leave to

file a third-party complaint against EWR ConRAC and SIXT, pursuant to Rule

4:8-1. On May 28, 2025, counsel for Port Authority filed an answer to the third-

party complaint, cross-claims, and filed a fourth-party complaint on behalf of

Port Authority and EWR ConRAC.

The fourth-party complaint alleges fourth-party defendant, Lane Valente

Industries, Inc., "was responsible for maintaining the gate at issue on and before

the date of the incident alleged." We granted plaintiff leave to appeal on May

2, 2025.

On appeal, plaintiff renews his argument that the court erred in denying

his motion to amend his amended complaint under Rule 4:26-4 because the

A-2698-24 9 requirements for fictitious party substitution were met. Plaintiff contends leave

to amend should have been freely granted in the interests of justice. He also

argues the court misapplied the standard for reconsideration under Rule 4:42-2,

failed to address critical factual omissions by Port Authority that prejudiced his

ability to amend, and the refusal to grant oral argument on a contested,

dispositive motion deprived him of due process. Plaintiff maintains equity

requires reversal based on Port Authority's misrepresentations and omissions,

which frustrated a timely amendment under Rules 4:26-4 and 1:1-2(a).5

Port Authority seeks affirmance. At oral argument, Port Authority's

counsel conceded it would suffer no prejudice if plaintiff's motion to substitute

in EWR ConRAC and SIXT was granted. On May 29, 2025, we granted

plaintiff's motion to supplement the record, stayed all trial court proceedings,

and adjourned the July 17, 2025 arbitration without date.

II.

5 Rule 1:1-2(a) provides:

The [R]ules . . . shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. . . any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice.

A-2698-24 10 The SOL provides a time period in which a party may bring suit to prevent

stale claims and "promote[s] repose by giving security and stability to human

affairs." Caravaggio v. D'Agostini, 166 N.J. 237, 245 (2001) (quoting Wood v.

Carpenter, 101 U.S. 135, 139 (1879)). Actions for personal injuries must be

commenced within two years after the cause of action accrues. Baird v. Am.

Med. Optics, 155 N.J. 54, 65 (1998) (citing N.J.S.A. 2A:14-2(a)). There is no

dispute plaintiff's cause of action accrued on June 8, 2022, and that he failed to

assert a claim against EWR ConRAC and SIXT before the two-year SOL

expired.

The principal consideration underlying the enactment of the SOL is one

of fairness to defendants. Lopez v. Swyer, 62 N.J. 267, 274 (1973). Still, our

courts recognize the significant policy interest favoring the resolution of claims

on their merits. Viviano v. CBS, Inc., 101 N.J. 538, 547-49 (1986) (noting that

"[j]ustice impels strongly towards affording the plaintiffs their day in court on

the merits of their claim"). One of those rules is the fictitious pleading rule,

which provides, "[i]n any action, . . . if the defendant's true name is unknown to

the plaintiff, process may issue against the defendant under a fictitious name."

R. 4:26-4.

A-2698-24 11 The Rule permits "a plaintiff who institutes a timely action against a

fictitious defendant to amend the complaint after the expiration of the [SOL] to

identify the true defendant," which amended pleading will "relate[ ] 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, 101 N.J. at 548. "[T]he first prerequisite to a fictitious name

designation in a pleading is that the true identity of the defendant be 'unknown'

to the plaintiff." Mears v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 629 (App.

Div. 1997) (quoting Marion v. Borough of Manasquan, 231 N.J. Super. 320, 334

(App. Div. 1989)).

Therefore, "the fictitious name practice authorized by Rule 4:26-4 may be

used only when plaintiff does not know or have reason to know the identity of

an alleged culpable party." Cardona v. Data Sys. Comput. Ctr., 261 N.J. Super.

232, 234 (App. Div. 1992). Our Supreme Court has construed Rule 4:26-4 to

allow "a plaintiff who institutes a timely action against a fictitious defendant to

amend the complaint after the expiration of the [SOL] to identify the true

defendant." Viviano, 101 N.J. at 548. When this procedure is properly used,

"an amended complaint identifying the defendant by its true name relates back

to the time of filing of the original complaint." Baez v. Paulo, 453 N.J. Super.

A-2698-24 12 422, 437 (App. Div. 2018) (quoting Viviano, 101 N.J. at 548), certif. denied,

235 N.J. 107 (2018).

Although the fictitious pleading rule allows a party to amend its complaint

after the expiration of the SOL, "case law has emphasized the need for plaintiffs

and their counsel to act with due diligence in attempting to identify and sue

responsible parties within the [SOL] period." Id. at 438; see, e.g., Matynska v.

Fried, 175 N.J. 51, 52-54 (2002); Claypotch v. Heller, Inc., 360 N.J. Super. 472,

479-80 (App. Div. 2003). Simply put, "Rule 4:26-4 may only be used by a

plaintiff 'if a defendant's true name cannot be ascertained by the exercise of due

diligence prior to filing the complaint.'" Baez, 453 N.J. Super. at 438 (citations

omitted) (quoting Claypotch, 360 N.J. Super. at 479-80). See also Claypotch,

360 N.J. Super. at 479-80 ("To be entitled to the benefit of this [Rule], a plaintiff

must proceed with due diligence in ascertaining the fictitiously identified

defendant's true name and amending the complaint to correctly identify that

defendant").

In determining whether a plaintiff has proceeded in a sufficiently diligent

manner when substituting the true name of a fictitiously identified defendant, "a

crucial factor is whether the defendant has been prejudiced by the delay in its

identification as a potentially liable party and service of the amended

A-2698-24 13 complaint." Claypotch, 360 N.J. Super. at 480. As we stated in Baez, a plaintiff

must satisfy two levels of diligence to be accorded the tolling benefits of the

rule:

First, a plaintiff must exercise due diligence in endeavoring to identify the responsible defendants before filing the original complaint naming John Doe 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.

[453 N.J. Super. at 439. (citation omitted).]

Here, the court erroneously concluded Rule 4:26-4 did not apply because

plaintiff failed to sufficiently identify the newly discovered entities in his

amended complaint. Under the circumstances presented, we are satisfied

plaintiff sufficiently identified other parties with potential liability for his

incident in his amended complaint. We also conclude, based on the facts and

circumstances of this case, plaintiff acted diligently in discerning the identities

of EWR ConRAC and SIXT.

Plaintiff's counsel timely filed a notice of claim, including photographs of

the incident scene, on Port Authority, which acknowledged the incident on

November 22 and 30, 2022. Port Authority did not advise plaintiff the QTA lot

was leased to, operated, or maintained by third parties. Rather, Port Authority's

A-2698-24 14 response reasonably led plaintiff and his counsel to believe the incident occurred

on Port Authority's property. Moreover, Port Authority requested that plaintiff

execute medical authorizations, again leading to the impression it was the

culpable party. Further, when Port Authority's counsel certified under Rule 4:5-

1(b)(2) that "all known necessary parties have been joined in this action,"

plaintiff's counsel had a right to rely upon that representation. The record also

shows Port Authority's predecessor or successor counsel never amended the

Rule 4:5-1(b)(2) certification.

Nonetheless, plaintiff promptly began the process of discovery to

ascertain the identity of other parties with potential liability for the incident.

Importantly, plaintiff's discovery demands propounded on Port Authority—in

addition to form C interrogatories—sought maintenance records, inspection

logs, leases, and service agreements. The two-year SOL applicable to plaintiff's

claims against EWR ConRAC and SIXT lapsed before Port Authority—and

GardaWorld—served their answers to written discovery. It was not until July

2024 when GardaWorld and August 2024 when Port Authority finally disclosed

the identities of EWR ConRAC and SIXT—more than two years after the

accident occurred and the SOL expired.

A-2698-24 15 We have held that a plaintiff's request for discovery constitutes "diligent

efforts" in circumstances where such requests are "continually thwarted" by

defendants. Worthy v. Kennedy Health Sys., 446 N.J. Super. 71, 91 (App. Div.

2016). Port Authority suggests in its merits brief that plaintiff could have

exercised greater efforts to identify EWR ConRAC and SIXT from his text

message group chat or by conducting a Google search. We reject Port

Authority's arguments because, as stated in Baez, we do not endorse

"scattershot" naming in a complaint of every individual or entity whose name

may appear in records, since "such indiscriminate overinclusion would be

contrary to public policy." 453 N.J. Super. at 444. We also stated in Baez that

"[r]easonable due diligence by a plaintiff should not be equated with overzealous

litigiousness." Ibid. The court did not make a finding here that plaintiff was

not diligent.

When plaintiff learned of EWR ConRAC's and SIXT's involvement, he

waited five months to move to amend his pleadings. We are not persuaded by

Port Authority's assertion that plaintiff was not diligent by waiting five months

to add these parties under the facts of this case. As stated, the delay was at least

in part the result of Port Authority's failure to timely respond to discovery or

otherwise provide the necessary information. Saliently, Port Authority's counsel

A-2698-24 16 concluded it would not be prejudiced if plaintiff were allowed to pursue claims

against the two new parties. After we granted leave to appeal, discovery was

stayed, and a fourth-party complaint was filed. In light of our decision, we need

not address plaintiff's other arguments.

We, therefore, reverse the court's January 31, 2025 order denying

plaintiff's motion for leave to file and serve a second amended complaint and

the March 14, 2025 order denying reconsideration.

Reversed and remanded for proceedings in accordance with this opinion.

We do not retain jurisdiction.

A-2698-24 17