NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3575-24
LEONIDAS PEREZ,
Plaintiff-Respondent,
v.
RENTAL SHOP HOLDINGS, LLC,
Defendant-Appellant. _______________________________
Submitted September 30, 2025 – Decided October 15, 2025
Before Judges Gilson and Vinci.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1122-25.
Powell, Kugelman & Postell, LLC, attorneys for appellant (Chase T. Gunther, on the brief).
Stephen S. Berowitz, attorney for respondent.
PER CURIAM On leave granted, defendant Rental Shop Holdings, LLC (Rental Shop)
appeals from a June 6, 2025 order denying its motion to dismiss plaintiff's
amended complaint alleging personal injury for failure to comply with the
applicable two-year statute of limitations (SOL), N.J.S.A. 2A:14-2(a). Having
reviewed the record and applicable law, we reverse.
The relevant facts are undisputed. Plaintiff alleges that on February 13,
2023, she lost her balance and fell down the front outdoor stairs of the residential
building where she was a tenant located at 198 Littleton Avenue in Newark (the
property). Rental Shop owned and managed the property. Prior to the expiration
of the SOL, plaintiff provided her attorney with all the information necessary to
file a complaint against Rental Shop, including her description of the accident,
the fact she was a tenant at the property, that Rental Shop was her landlord, and
the correct address of the property.
On February 10, 2025, three days before the SOL expired, plaintiff filed
a complaint against the "State of New Jersey, John Doe I[,] and John Doe II,
fictitious names for persons or entities whose identities are presently unknown."
The complaint alleged plaintiff was injured in a fall that occurred at "a
residential building located at 98 Littleton Avenue" and "defendant State of New
A-3575-24 2 Jersey or defendant John Doe I . . . was the owner and[]or manager" of the
property.
On February 26, 2025, thirteen days after the SOL expired, plaintiff filed
an amended complaint alleging she was injured in a fall at a "residential building
located at 198 Littleton Avenue" that was owned and managed by Rental Shop.
Plaintiff's attorney concedes "[t]he failure to file the . . . complaint naming . . .
Rental Shop . . . as a defendant was due to a mistake in counsel's office." On
February 28, plaintiff voluntarily dismissed her complaint against the State. On
April 8, plaintiff served the amended complaint on Rental Shop.
On April 24, Rental Shop filed a motion to dismiss pursuant to Rule 4:6-
2(e). On June 6, after hearing oral argument, the court entered an order denying
the motion supported by an oral opinion. It reasoned, "what the court ha[d] to
determine . . . is whether the plaintiff exercised due diligence." The court noted
"as soon as the plaintiff found out that the correct defendant was not named, the
amended complaint was filed and it was just a few days after the [SOL] and, in
this case, the plaintiff did file suit and did name a John Doe." The court found
"plaintiff did exercise due diligence and that[ is] proven by how quickly the
amended complaint was filed" and "most importantly . . . there was no prejudice
A-3575-24 3 to [Rental Shop] because the amended complaint was filed so shortly after the
initial [SOL]."
On appeal, Rental Shop argues: (1) the court incorrectly applied the
fictitious party rule, Rule 4:26-4, because plaintiff was aware of the identity of
Rental Shop when the complaint was filed; and (2) the court improperly applied
the doctrine of equitable tolling.
We review a trial court's decision to grant or deny a motion to dismiss
pursuant to Rule 4:6-2(e) de novo, applying the same standard as the trial court.
Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div. 2017) (citation omitted).
"Moreover, when analyzing pure questions of law raised in a dismissal motion,
such as the application of a statute of limitations, [an appellate court]
undertake[s] a de novo review." Ibid. (citing Royster v. N.J. State Police, 227
N.J. 482, 493 (2017) (citation omitted)).
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
A-3575-24 4 dispute plaintiff's cause of action accrued on February 13, 2023, and she failed
to assert a claim against Rental Shop before the SOL expired.
The court incorrectly determined plaintiff was entitled to rely on the
fictitious party 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.
The Rule permits "a plaintiff who institutes a timely action against a
fictitious defendant to amend the complaint after the expiration of the statute of
limitations 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 v. CBS, Inc., 101 N.J. 538, 548 (1986). However,
"[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, 555 (App. Div. 1989)).
"[T]he fictitious name practice authorized by Rule 4:26-4 may only be
used when plaintiff does not know or have reason to know the identity of an
alleged culpable party." Cardona v. Data Sys. Computer Ctr., 261 N.J. Super.
A-3575-24 5 232, 234 (App. Div. 1992). Indeed, "when a plaintiff knows or has reason to
know that he [or she] has a cause of action against an identifiable defendant and
voluntarily sleeps on his [or her] rights so long as to permit the customary period
of limitations to expire, the pertinent considerations of individual justice as well
as the broader considerations of repose, coincide to bar his [or her] claim." Id.
at 234-35 (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115
(1973)).
Plaintiff concedes she knew the identity of Rental Shop before filing the
complaint but failed to name it as a defendant. There is no basis to find
"defendant's true name [was] unknown to the plaintiff" prior to the expiration of
the SOL as required by Rule 4:26-4, and plaintiff does not contend otherwise.
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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-3575-24
LEONIDAS PEREZ,
Plaintiff-Respondent,
v.
RENTAL SHOP HOLDINGS, LLC,
Defendant-Appellant. _______________________________
Submitted September 30, 2025 – Decided October 15, 2025
Before Judges Gilson and Vinci.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1122-25.
Powell, Kugelman & Postell, LLC, attorneys for appellant (Chase T. Gunther, on the brief).
Stephen S. Berowitz, attorney for respondent.
PER CURIAM On leave granted, defendant Rental Shop Holdings, LLC (Rental Shop)
appeals from a June 6, 2025 order denying its motion to dismiss plaintiff's
amended complaint alleging personal injury for failure to comply with the
applicable two-year statute of limitations (SOL), N.J.S.A. 2A:14-2(a). Having
reviewed the record and applicable law, we reverse.
The relevant facts are undisputed. Plaintiff alleges that on February 13,
2023, she lost her balance and fell down the front outdoor stairs of the residential
building where she was a tenant located at 198 Littleton Avenue in Newark (the
property). Rental Shop owned and managed the property. Prior to the expiration
of the SOL, plaintiff provided her attorney with all the information necessary to
file a complaint against Rental Shop, including her description of the accident,
the fact she was a tenant at the property, that Rental Shop was her landlord, and
the correct address of the property.
On February 10, 2025, three days before the SOL expired, plaintiff filed
a complaint against the "State of New Jersey, John Doe I[,] and John Doe II,
fictitious names for persons or entities whose identities are presently unknown."
The complaint alleged plaintiff was injured in a fall that occurred at "a
residential building located at 98 Littleton Avenue" and "defendant State of New
A-3575-24 2 Jersey or defendant John Doe I . . . was the owner and[]or manager" of the
property.
On February 26, 2025, thirteen days after the SOL expired, plaintiff filed
an amended complaint alleging she was injured in a fall at a "residential building
located at 198 Littleton Avenue" that was owned and managed by Rental Shop.
Plaintiff's attorney concedes "[t]he failure to file the . . . complaint naming . . .
Rental Shop . . . as a defendant was due to a mistake in counsel's office." On
February 28, plaintiff voluntarily dismissed her complaint against the State. On
April 8, plaintiff served the amended complaint on Rental Shop.
On April 24, Rental Shop filed a motion to dismiss pursuant to Rule 4:6-
2(e). On June 6, after hearing oral argument, the court entered an order denying
the motion supported by an oral opinion. It reasoned, "what the court ha[d] to
determine . . . is whether the plaintiff exercised due diligence." The court noted
"as soon as the plaintiff found out that the correct defendant was not named, the
amended complaint was filed and it was just a few days after the [SOL] and, in
this case, the plaintiff did file suit and did name a John Doe." The court found
"plaintiff did exercise due diligence and that[ is] proven by how quickly the
amended complaint was filed" and "most importantly . . . there was no prejudice
A-3575-24 3 to [Rental Shop] because the amended complaint was filed so shortly after the
initial [SOL]."
On appeal, Rental Shop argues: (1) the court incorrectly applied the
fictitious party rule, Rule 4:26-4, because plaintiff was aware of the identity of
Rental Shop when the complaint was filed; and (2) the court improperly applied
the doctrine of equitable tolling.
We review a trial court's decision to grant or deny a motion to dismiss
pursuant to Rule 4:6-2(e) de novo, applying the same standard as the trial court.
Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div. 2017) (citation omitted).
"Moreover, when analyzing pure questions of law raised in a dismissal motion,
such as the application of a statute of limitations, [an appellate court]
undertake[s] a de novo review." Ibid. (citing Royster v. N.J. State Police, 227
N.J. 482, 493 (2017) (citation omitted)).
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
A-3575-24 4 dispute plaintiff's cause of action accrued on February 13, 2023, and she failed
to assert a claim against Rental Shop before the SOL expired.
The court incorrectly determined plaintiff was entitled to rely on the
fictitious party 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.
The Rule permits "a plaintiff who institutes a timely action against a
fictitious defendant to amend the complaint after the expiration of the statute of
limitations 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 v. CBS, Inc., 101 N.J. 538, 548 (1986). However,
"[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, 555 (App. Div. 1989)).
"[T]he fictitious name practice authorized by Rule 4:26-4 may only be
used when plaintiff does not know or have reason to know the identity of an
alleged culpable party." Cardona v. Data Sys. Computer Ctr., 261 N.J. Super.
A-3575-24 5 232, 234 (App. Div. 1992). Indeed, "when a plaintiff knows or has reason to
know that he [or she] has a cause of action against an identifiable defendant and
voluntarily sleeps on his [or her] rights so long as to permit the customary period
of limitations to expire, the pertinent considerations of individual justice as well
as the broader considerations of repose, coincide to bar his [or her] claim." Id.
at 234-35 (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115
(1973)).
Plaintiff concedes she knew the identity of Rental Shop before filing the
complaint but failed to name it as a defendant. There is no basis to find
"defendant's true name [was] unknown to the plaintiff" prior to the expiration of
the SOL as required by Rule 4:26-4, and plaintiff does not contend otherwise.
The court's reliance on our Supreme Court's decision in Matynska v. Fried,
175 N.J. 51 (2002), was misplaced. In Matynska, the Court addressed the
timeliness of a motion to amend the plaintiff's complaint to name a party who
was unknown at the time the complaint was filed and properly identified as a
fictitious party under Rule 4:26-4. Id. at 52-53. The Court determined the
plaintiff failed to exercise due diligence in discovering the identity of defendant
before moving to amend the complaint and, therefore, the motion to amend was
untimely. Id. at 53.
A-3575-24 6 Here, plaintiff knew the identity of Rental Shop at the time the complaint
was filed. As a result, the fictitious party rule does not apply. The court's
determination, in reliance on Matynska, that the Rule applied because counsel
acted diligently to correct his error after the SOL expired, was not correct.
Indeed, plaintiff and her counsel had two full years to confirm that Rental Shop
owned the building; that is one of the reasons why the Legislature has given
personal injury plaintiffs two years to bring their action. Not conducting basic
and easy investigation during the limitations period is not acting diligently.
There is no basis to find the SOL was equitably tolled under the facts of
this case. "Equitable tolling is traditionally reserved for limited occasions."
F.H.U. v. A.C.U., 427 N.J. Super. 354, 379 (App. Div. 2012).
A statute of limitations may be equitably tolled: "(1) [if] the defendant has
actively misled the plaintiff, (2) if the plaintiff has in some extraordinary way
been prevented from asserting his [or her] rights, or (3) if the plaintiff has timely
asserted his [or her] rights mistakenly in the wrong forum." Barron v. Gersten,
472 N.J. Super. 572, 577 (App. Div. 2022) (alterations in original) (quoting
F.H.U., 427 N.J. Super. at 379) (internal quotation marks omitted). "Absent a
showing of intentional inducement or trickery by a defendant, [equitable tolling]
. . . should be applied sparingly and only in the rare situation where it is
A-3575-24 7 demanded by sound legal principles and in the interest of justice." Barron, 472
N.J. Super. at 577 (quoting Binder v. Price Waterhouse & Co., L.L.P., 393 N.J.
Super. 304, 313 (App. Div. 2007)).
Claims of "attorney error, miscalculation, inadequate research or other
mistakes have not been found to rise to the 'extraordinary' circumstances
required for equitable tolling." Binder, 393 N.J. Super. at 314 (quoting Fahy v.
Horn, 240 F.3d 239, 244 (3d. Cir. 2001)). Even if a plaintiff can demonstrate
such "extraordinary" circumstances, equitable tolling also "requires the exercise
of reasonable insight and diligence by a person seeking its protection." Id. at
313 (citing Villalobos v. Fava, 342 N.J. Super. 38, 52 (App. Div. 2001)).
In this case, it is undisputed the only reason Rental Shop was not named
in plaintiff's complaint was due to her attorney's error. Accordingly, plaintiff
failed to establish extraordinary circumstances warranting application of the
doctrine of equitable tolling. Binder, 393 N.J. Super. at 314. Furthermore, there
is no basis to find plaintiff acted with reasonable diligence. Plaintiff was aware
of her cause of action against Rental Shop at the time of her alleged fall. She
waited until three days before the SOL expired to file her complaint and then
failed to name Rental Shop as a defendant. Those facts simply do not support
the court's conclusion that plaintiff acted with reasonable diligence.
A-3575-24 8 Based on our de novo review, we conclude plaintiff's personal injury
complaint against Rental Shop is barred pursuant to N.J.S.A. 2A:14-2(a)
because it was not filed within two years of the accrual of her cause of action .
Rental Shop's motion to dismiss plaintiff's amended complaint should have been
granted.
Reversed and vacated. On remand, the court is directed to enter an order
granting judgment to defendant based on the SOL.
A-3575-24 9