GODWIN OKEKE VS. COOLIDGE PROPERTIES, LLC (L-1299-13, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 13, 2018
• Docket: A-1170-16T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-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.

2 A-1170-16T4 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.

3 A-1170-16T4 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.

4 A-1170-16T4 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

5 A-1170-16T4 [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

6 A-1170-16T4 [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).

7 A-1170-16T4 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,

8 A-1170-16T4 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.

9 A-1170-16T4