Opinion
DOCKET NO. A-0270-15T2
12-09-2016
ZOFIA MARKIEWICZ, Plaintiff-Appellant, v. SANDRA RAMIREZ, and CITY OF BAYONNE, Defendants-Respondents.
John J. Rachinsky argued the cause for appellant (Kiczek & Rachinsky, LLC, attorneys; Mr. Rachinsky, of counsel and on the brief; Nicole C. Tomlin, on the brief). Monique D. Moreira argued the cause for respondent Sandra Ramirez (Law Offices of Jose B. Moreira, PC, attorneys; Ms. Moreira, on the brief). Karla Y. Garcia, Assistant Corporation Counsel, argued the cause for respondent City of Bayonne (John F. Coffey, II, City of Bayonne Corporation Counsel, attorney; Ms. Garcia, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Koblitz and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-46-14. John J. Rachinsky argued the cause for appellant (Kiczek & Rachinsky, LLC, attorneys; Mr. Rachinsky, of counsel and on the brief; Nicole C. Tomlin, on the brief). Monique D. Moreira argued the cause for respondent Sandra Ramirez (Law Offices of Jose B. Moreira, PC, attorneys; Ms. Moreira, on the brief). Karla Y. Garcia, Assistant Corporation Counsel, argued the cause for respondent City of Bayonne (John F. Coffey, II, City of Bayonne Corporation Counsel, attorney; Ms. Garcia, on the brief). PER CURIAM
Plaintiff, Zofia Markiewicz, appeals from an order denying reconsideration of the Law Division's earlier order denying her motion to reinstate her complaint against defendants, Sandra Ramirez and the City of Bayonne for damages arising from injuries she allegedly sustained when she slipped and fell. Prior to either defendant being served with process, the Law Division entered an order dismissing plaintiff's complaint for lack of prosecution pursuant to Rule 1:13-7(a). Plaintiff later served defendants and filed a motion to reinstate eleven months after the dismissal. Applying the "exceptional circumstances" standard to plaintiff's application because there is more than one defendant, the motion judge denied plaintiff's application and similarly denied her later motion to reconsider. This appeal followed.
We review the court's denial of reconsideration only for abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Reconsideration is "a matter within the sound discretion of the Court, to be exercised in the interest of justice." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Governed by Rule 4:49-2, reconsideration is appropriate for a "narrow corridor" of cases that include those in which the court's decision was made upon a "palpably incorrect or irrational basis." Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401.).
We conclude from our review that the motion judge misapplied her discretion by denying reconsideration because she applied the wrong standard to plaintiff's motion to reinstate. Accordingly, we vacate the order denying reconsideration and remand plaintiff's motion to reinstate for consideration under the applicable "good cause" standard.
The "exceptional circumstances" standard employed by the motion judge does not apply to actions in which none of the defendants are served at the time of the dismissal. Although this aspect of the Rules was not pointed out to the judge by plaintiff, it is clear nonetheless. If service of process is not timely made in a Law Division action, Rule 1:13-7(a) requires the court to notify a plaintiff that his or her action will be dismissed without prejudice if service is not made "60 days following the date of the notice . . . unless, within said period, action specified in [the Rule] is taken." R. 1:13-7(a). If a single-defendant matter is dismissed, reinstatement can be based upon consent or "plaintiff shall move on good cause shown for vacation of the dismissal." Ibid. (emphasis added). "In multi-defendant actions in which at least one defendant has been properly served," ibid. (emphasis added), the standard remains "good cause" as long as the motion to reinstate is filed within ninety days of the dismissal. Ibid. The standard is elevated to "exceptional circumstances" only if a motion to reinstate is filed after ninety days from the date of dismissal. Ibid. "[B]y its terms, Rule 1:13-7(a) only requires a showing of exceptional circumstances in multi-defendant cases 'in which at least one defendant has been properly served.'" Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 609 n.8 (App. Div. 2014), certif. denied, 221 N.J. 492 (2015).
"Exceptional circumstances" is not applicable to a multi defendant case in which none of the defendants have been served. "The higher standard in multi-defendant cases 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." Id. at 609. In all other cases, the "good cause" standard applies and "absent a finding of fault by the plaintiff and prejudice to the defendant, a motion to restore under the rule should be viewed with great liberality." Ibid. (quoting Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007)).
The order denying reconsideration is reversed, the order denying reinstatement is vacated, and the matter is remanded to the Law Division for further proceedings consistent with our opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION