NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1477-19T1 LEOLA FREEMAN,
Plaintiff-Appellant,
v.
CLAUDIO DICOVSKIY, and SONIA DICOVSKIY-JAIME,
Defendants,
and
BARNERT MEDICAL ARTS COMPLEX,
Defendant-Respondent. _________________________
Submitted November 16, 2020 – Decided December 8, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3248-17.
Law Offices of James Vasquez, PC, attorneys for appellant (James Vasquez and Paul F. O'Reilly, on the brief). Respondent has not filed a brief.
PER CURIAM
Plaintiff Leola Freeman appeals from the Law Division's denial of her
motion to reinstate her complaint for damages arising from injuries she sustained
after she slipped and fell in a parking lot allegedly owned or operated by
defendant Barnert Medical Arts Complex (Barnert). In February 2019, the court
administratively dismissed plaintiff's complaint under Rule 1:13-7 for lack of
prosecution. The motion judge later denied plaintiff's motion to reinstate
without setting forth any reasons, other than posing the question, "Why has so
little been done on this [as it was] filed over 2 years ago?" on the bottom of his
order. We reverse, as we conclude the judge's denial was a mistaken exercise
of his discretion.
The facts we discern from the motion record are summarized as follows.
Plaintiff fell in April 2017 and filed her complaint in September of that year.
Plaintiff named Barnert as a defendant, served Barnert's managing agent, and
filed an affidavit of service. On January 18, 2018, in response to plaintiff's
request, the court entered default against Barnert.
A-1477-19T1 2 On June 28, 2018, plaintiff filed a motion to enter default judgment
against Barnert. 1 The court granted the motion on August 1, 2018, and entered
a default judgment against Barnert on the issue of liability only and ordered that
a proof hearing be scheduled "by the Civil Division."
By December 1, 2018, the Civil Division had not scheduled a proof
hearing. Instead, on that date, it issued a dismissal notice advising that the
matter would be dismissed without prejudice for lack of prosecution on January
29, 2019. Plaintiff was not aware of the scheduled dismissal because the
associate from the firm representing plaintiff did not calendar the notice. Four
days after issuing the dismissal notice, the Civil Division scheduled a proof
hearing for January 25, 2019.
Evidently, plaintiff served Barnert with notice of the hearing because on
January 18, 2019, an adjuster for Barnert's insurer contacted the associate and
plaintiff's counsel, James Vasquez, and advised that she had received
notification from her insureds, who were actually Barnert Management, LLC
and 680 Broadway Condo Association, that a hearing was scheduled for January
25, 2019. The adjuster stated that this was the first notification they had
1 Prior to the motion being granted, plaintiff entered into a stipulation of dismissal as to defendants Claudio Dicovskiy and Sonia Dicovskiy-Jaime. A-1477-19T1 3 received, asked if the matter was in litigation, and requested a copy of the
summons and complaint.
Vasquez responded to the adjuster and expressed that he would be willing
to adjourn the proof hearing. Shortly thereafter, Vasquez again spoke with the
adjuster who assured him that she was assigning counsel to the matter and filing
an answer.
On January 22, 2019, plaintiff requested an adjournment of the proof
hearing.2 Nevertheless, Barnert never filed an answer or motion, and the matter
was dismissed without prejudice for lack of prosecution on February 1, 2019.
On May 17, 2019, the associate handling plaintiff's case left plaintiff's counsel's
firm.
On October 4, 2019, a different associate at the firm filed a motion to
amend the complaint to properly name "Barnert Management LLC" and "680
Broadway Condo Association" as parties. The attorney evidently did so without
knowledge that the complaint had been administratively dismissed. Three days
2 There is nothing in the record to indicate whether the judge that would have been presiding over the proof hearing approved, denied, or otherwise responded to plaintiff's request to adjourn. Regardless, it is clear that the January 25 proof hearing did not take place. A-1477-19T1 4 later, the Civil Division notified the attorney that the matter had been dismissed
without prejudice.
On October 17, 2019, plaintiff's counsel filed a motion to reinstate her
complaint, supported by a certification from counsel explaining why the matter
had been dismissed without a reinstatement having been applied for sooner.
Notably, counsel acknowledged the firm's errors in handling the dismissal notice
but pointed out that the client did not contribute in any manner to the delay.
On November 4, 2019, the motion judge denied plaintiff's motion to
amend because the matter was dismissed without prejudice and on November
14, 2019, denied the motion to reinstate her complaint for the reason already
noted. This appeal followed.
We review an order denying reinstatement of a complaint "dismissed for
lack of prosecution [for] an abuse of discretion." Baskett v. Kwokleung Cheung,
422 N.J. Super. 377, 382 (App. Div. 2011).
Rule 1:13-7(a) provides, in relevant part:
except as otherwise provided by rule or court order, whenever an action has been pending for four months . . . without a required proceeding having been taken therein . . . the court shall issue written notice to the plaintiff advising that the action as to any or all defendants will be dismissed without prejudice 60 days following the date of the notice . . . unless, within said period, action specified in subsection (c) is taken. If no
A-1477-19T1 5 such action is taken, the court shall enter an order of dismissal without prejudice as to any named defendant and shall furnish the plaintiff with a copy thereof.
Under the Rule, an order of dismissal should not be entered where, among
other events, "a default judgment is obtained, if the required action not timely
taken was failure to convert a default request into a default judgment." R. 1:13-
7(c).
"[Rule] 1:13-7 is an administrative rule designed to clear the docket of
cases in which [a] plaintiff has failed to perform certain acts." Pressler &
Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 1:13-7 (2020); see also
Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989).
"Dismissals under the Rule are 'without prejudice.'" Ghandi v. Cespedes, 390
N.J. Super. 193, 196 (App. Div. 2007) (quoting R. 1:13-7(a)). "Accordingly,
the right to 'reinstatement is ordinarily routinely and freely granted when
plaintiff has cured the problem that led to the dismissal even if the application
is made many months later.'" Ibid. (quoting Rivera v. Atl. Coast Rehab. Ctr.,
321 N.J. Super. 340, 346 (App. Div. 1999)).
In deciding a motion to reinstate under these circumstances, "[e]agerness
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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-1477-19T1 LEOLA FREEMAN,
Plaintiff-Appellant,
v.
CLAUDIO DICOVSKIY, and SONIA DICOVSKIY-JAIME,
Defendants,
and
BARNERT MEDICAL ARTS COMPLEX,
Defendant-Respondent. _________________________
Submitted November 16, 2020 – Decided December 8, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3248-17.
Law Offices of James Vasquez, PC, attorneys for appellant (James Vasquez and Paul F. O'Reilly, on the brief). Respondent has not filed a brief.
PER CURIAM
Plaintiff Leola Freeman appeals from the Law Division's denial of her
motion to reinstate her complaint for damages arising from injuries she sustained
after she slipped and fell in a parking lot allegedly owned or operated by
defendant Barnert Medical Arts Complex (Barnert). In February 2019, the court
administratively dismissed plaintiff's complaint under Rule 1:13-7 for lack of
prosecution. The motion judge later denied plaintiff's motion to reinstate
without setting forth any reasons, other than posing the question, "Why has so
little been done on this [as it was] filed over 2 years ago?" on the bottom of his
order. We reverse, as we conclude the judge's denial was a mistaken exercise
of his discretion.
The facts we discern from the motion record are summarized as follows.
Plaintiff fell in April 2017 and filed her complaint in September of that year.
Plaintiff named Barnert as a defendant, served Barnert's managing agent, and
filed an affidavit of service. On January 18, 2018, in response to plaintiff's
request, the court entered default against Barnert.
A-1477-19T1 2 On June 28, 2018, plaintiff filed a motion to enter default judgment
against Barnert. 1 The court granted the motion on August 1, 2018, and entered
a default judgment against Barnert on the issue of liability only and ordered that
a proof hearing be scheduled "by the Civil Division."
By December 1, 2018, the Civil Division had not scheduled a proof
hearing. Instead, on that date, it issued a dismissal notice advising that the
matter would be dismissed without prejudice for lack of prosecution on January
29, 2019. Plaintiff was not aware of the scheduled dismissal because the
associate from the firm representing plaintiff did not calendar the notice. Four
days after issuing the dismissal notice, the Civil Division scheduled a proof
hearing for January 25, 2019.
Evidently, plaintiff served Barnert with notice of the hearing because on
January 18, 2019, an adjuster for Barnert's insurer contacted the associate and
plaintiff's counsel, James Vasquez, and advised that she had received
notification from her insureds, who were actually Barnert Management, LLC
and 680 Broadway Condo Association, that a hearing was scheduled for January
25, 2019. The adjuster stated that this was the first notification they had
1 Prior to the motion being granted, plaintiff entered into a stipulation of dismissal as to defendants Claudio Dicovskiy and Sonia Dicovskiy-Jaime. A-1477-19T1 3 received, asked if the matter was in litigation, and requested a copy of the
summons and complaint.
Vasquez responded to the adjuster and expressed that he would be willing
to adjourn the proof hearing. Shortly thereafter, Vasquez again spoke with the
adjuster who assured him that she was assigning counsel to the matter and filing
an answer.
On January 22, 2019, plaintiff requested an adjournment of the proof
hearing.2 Nevertheless, Barnert never filed an answer or motion, and the matter
was dismissed without prejudice for lack of prosecution on February 1, 2019.
On May 17, 2019, the associate handling plaintiff's case left plaintiff's counsel's
firm.
On October 4, 2019, a different associate at the firm filed a motion to
amend the complaint to properly name "Barnert Management LLC" and "680
Broadway Condo Association" as parties. The attorney evidently did so without
knowledge that the complaint had been administratively dismissed. Three days
2 There is nothing in the record to indicate whether the judge that would have been presiding over the proof hearing approved, denied, or otherwise responded to plaintiff's request to adjourn. Regardless, it is clear that the January 25 proof hearing did not take place. A-1477-19T1 4 later, the Civil Division notified the attorney that the matter had been dismissed
without prejudice.
On October 17, 2019, plaintiff's counsel filed a motion to reinstate her
complaint, supported by a certification from counsel explaining why the matter
had been dismissed without a reinstatement having been applied for sooner.
Notably, counsel acknowledged the firm's errors in handling the dismissal notice
but pointed out that the client did not contribute in any manner to the delay.
On November 4, 2019, the motion judge denied plaintiff's motion to
amend because the matter was dismissed without prejudice and on November
14, 2019, denied the motion to reinstate her complaint for the reason already
noted. This appeal followed.
We review an order denying reinstatement of a complaint "dismissed for
lack of prosecution [for] an abuse of discretion." Baskett v. Kwokleung Cheung,
422 N.J. Super. 377, 382 (App. Div. 2011).
Rule 1:13-7(a) provides, in relevant part:
except as otherwise provided by rule or court order, whenever an action has been pending for four months . . . without a required proceeding having been taken therein . . . the court shall issue written notice to the plaintiff advising that the action as to any or all defendants will be dismissed without prejudice 60 days following the date of the notice . . . unless, within said period, action specified in subsection (c) is taken. If no
A-1477-19T1 5 such action is taken, the court shall enter an order of dismissal without prejudice as to any named defendant and shall furnish the plaintiff with a copy thereof.
Under the Rule, an order of dismissal should not be entered where, among
other events, "a default judgment is obtained, if the required action not timely
taken was failure to convert a default request into a default judgment." R. 1:13-
7(c).
"[Rule] 1:13-7 is an administrative rule designed to clear the docket of
cases in which [a] plaintiff has failed to perform certain acts." Pressler &
Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 1:13-7 (2020); see also
Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989).
"Dismissals under the Rule are 'without prejudice.'" Ghandi v. Cespedes, 390
N.J. Super. 193, 196 (App. Div. 2007) (quoting R. 1:13-7(a)). "Accordingly,
the right to 'reinstatement is ordinarily routinely and freely granted when
plaintiff has cured the problem that led to the dismissal even if the application
is made many months later.'" Ibid. (quoting Rivera v. Atl. Coast Rehab. Ctr.,
321 N.J. Super. 340, 346 (App. Div. 1999)).
In deciding a motion to reinstate under these circumstances, "[e]agerness
to move cases must defer to [the court's] paramount duty to administer justice
in the individual case." Id. at 198 (quoting Audubon Volunteer Fire Co. No. 1
A-1477-19T1 6 v. Church Const. Co., 206 N.J. Super. 405, 406 (App. Div. 1986)). To this end,
our Rules are to "be construed to secure a just determination, simplicity in
procedure, fairness in administration and the elimination of unjustifiable
expense and delay." R. 1:1-2(a). As the circumstances require, "[u]nless
otherwise stated, 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." Ibid.
Applying these guiding principles, we conclude the motion judge
mistakenly exercised his discretion by denying plaintiff's motion based on what
appears to have been only the age of the case. The appropriate standard under
the Rule was "good cause," especially since the other defendants had already
been dismissed from the case. 3 See R. 1:13-7(a) ("reinstatement of an action
against a single defendant may be permitted . . . [i]f a defendant has been
properly served but declines to execute a consent order, [whereupon] plaintiff
shall move on good cause shown for vacation of the dismissal."). Under the
good cause standard, a court should grant a plaintiff's motion to reinstate a
3 This was not a case involving numerous defendants warranting the application of a "higher standard [of exceptional circumstances. That standard] was intended to avoid delay where a case has been proceeding against one or more defendants, and the plaintiff then seeks to reinstate the complaint against a previously-dismissed additional defendant." Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 609 (App. Div. 2014); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 1.2 on R. 1:13-7 (2020). A-1477-19T1 7 complaint liberally "absent a finding of fault by the plaintiff and prejudice to the
defendant." Baskett, 422 N.J. Super. at 381 (quoting Ghandi, 390 N.J. Super. at
197).
Here, plaintiff was completely blameless. See id. at 380, 385;
Giannakopoulos, 438 N.J. Super. at 608 ("an innocent plaintiff should not be
penalized for [her] attorney's mistakes"). Moreover, defendant never objected
to the reinstatement. See Baskett, 422 N.J. Super. at 385 (finding good cause
for reinstatement of a complaint in part because the defendant did not present a
"scintilla of evidence" supporting his claim of prejudice); Ghandi, 390 N.J.
Super. at 197 (finding the court erred in denying a reinstatement motion in part
because the defendants failed to object to the reinstatement motion).
It was apparent in this case that the motion judge gave no consideration to
the good cause established by plaintiff, as demonstrated by the fact that plaintiff
had made service upon the defaulting defendant, obtained a default judgment as
to liability, and was ready to proceed at the proof hearing when it was eventually
scheduled by the Civil Division. There would have been no delay in this matter,
which plaintiff was otherwise diligently pursuing, but for an associate's error
and plaintiff's counsel's reliance on Barnert's representative's assurances. Under
these circumstances, the motion to dismiss should not have been denied.
A-1477-19T1 8 Reversed and remanded for further proceedings consistent with our
opinion. We do not retain jurisdiction.
A-1477-19T1 9