Opinion
DOCKET NO. A-2800-12T4
06-27-2014
MEYBOL WONG, Plaintiff-Appellant, v. JOSEPH M. CARAM, CARAM, INC., B&V RESTORATION, HACKENSACK WATER COMPANY, Defendants, and MODELL'S SPORTING GOODS, Defendant-Respondent.
Howard Z. Buckner, attorney for appellant (Randi S. Greenberg, on the brief). Carroll, McNulty & Kull, L.L.C., attorneys for respondent (Pasquale A. Pontoriero, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Haas.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2359-11.
Howard Z. Buckner, attorney for appellant (Randi S. Greenberg, on the brief).
Carroll, McNulty & Kull, L.L.C., attorneys for respondent (Pasquale A. Pontoriero, on the brief). PER CURIAM
In this personal injury case, plaintiff Meybol Wong appeals from dismissal of her amended complaint against defendant Modell's Sporting Goods for failure to state a claim upon which relief can be granted. We affirm.
In a motion pursuant to Rule 4:6-2(e) in lieu of an answer, Modell's asserted that the amended complaint was filed nine months beyond the running of the two-year statute of limitations, N.J.S.A. 2A:14-2. The trial court took into consideration evidence outside the pleadings, and so, the motion was treated as one for summary judgment in accordance with Rule 4:46. In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We view the facts most favorably to the party opposing summary judgment, here plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On December 4, 2009, plaintiff fell on a sidewalk and injured her ankle. She testified in deposition that she was walking with her two children on 57th Street in West New York near its intersection with Bergenline Avenue. She did not see a hole in the sidewalk, stepped into it, twisted her ankle, and fell. As far as she knew, no one besides her children witnessed the accident.
She remained on the ground for about ten minutes until her brother came to help and took her home. She went to a hospital emergency room the next day, where x-rays of her ankle were taken and she was given "a soft cast" to wear and crutches to use until she could see an orthopedist. She was examined by an orthopedist a week later, and underwent treatment for the next six months. Residual effects of the ankle injury and disability remained some two-and-a-half years after the accident.
During her deposition, plaintiff identified several photographs of the location of her fall that she and her cousin had taken within a week after the accident. The photographs clearly show a large indentation in the concrete sidewalk, and plaintiff testified that was the hole that caused her to fall. The indentation was near a garage door and less than two car-lengths from a canopy over a doorway that was marked "5700 J.M.C. Professional Offices."
By June 2010, plaintiff had consulted with an attorney regarding filing a lawsuit. On June 21, 2010, her attorney wrote to the West New York Tax Collector requesting the identity of the owner of property with an address of 5700 Bergenline Avenue. The Tax Collector provided a tax document showing that the property with that address was owned by Joseph M. Caram.
In May 2011, plaintiff filed her initial complaint alleging the negligence of Joseph M. Caram, Caram Inc. and fictitiously named corporations and individuals that "owned, operated, maintained and controlled the premises located at 5700 Bergenline Avenue, in the Town of West New York." Defendant Joseph M. Caram filed an answer on or about July 7, 2011. It appears from our record that Caram Inc. may not have been served with a summons and complaint, and plaintiff later voluntarily dismissed her complaint against that defendant.
In November 2011, Joseph M. Caram obtained leave of the court to file a third-party complaint against B&V Restoration, Inc. and Hackensack Water Company, alleging that they had done construction work on the sidewalk. Plaintiff also obtained leave of the court to name those parties as direct defendants, and she filed a first-amended complaint on January 25, 2012, adding the two new defendants. At a later time, plaintiff voluntarily dismissed her amended complaint against both new defendants.
On June 20, 2012, both plaintiff and defendant Caram were deposed. Using the photographs, plaintiff identified the exact location of her fall. Using the same photographs, Caram testified that the hole in the sidewalk was not adjacent to the commercial property that he owned with an address of 5700 Bergenline Avenue. He testified that his property was 30 by 101 feet in dimensions and contained a building with stores on the ground floor and rented offices on the upper floors. He identified the garage door across from which the hole was located as property owned by Modell's Sporting Goods and used by a Rite-Aid Pharmacy located on Bergenline Avenue. He testified that the canopy over a door to his commercial office spaces was some fifteen feet away from the location of plaintiff's fall but that his property line was between the two locations.
On July 24, 2012, plaintiff moved for leave to file a second amended complaint substituting Modell's as a named defendant for a fictitiously-named defendant. The court granted the motion, and plaintiff filed her second amended complaint on September 4, 2012. Modell's was served with a summons and complaint on or about October 1, 2012.
The court heard argument on Modell's motion to dismiss on January 11, 2013, and entered an order the same day granting the motion and dismissing plaintiff's claims against Modell's as barred by the statute of limitations. Subsequently, plaintiff voluntarily dismissed her claims against Caram and filed an appeal of the decision dismissing her claims against Modell's.
Plaintiff argues that the trial court erred because the filing of her second amended complaint relates back to the date of her original complaint in May 2011. In support of that argument, plaintiff relies on Rule 4:9-3, which pertains to relation back of pleadings, and Rule 4:26-4, which pertains to the fictitious naming of a defendant when the plaintiff has not been able to identify the defendant at the time that suit is filed.
Rule 4:26-4 states in relevant part:
[I]f the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name . . . .
As applied by the courts, the rule requires that a plaintiff exercise due diligence in identifying fictitiously-named defendants. Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11 (2005); Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (App. Div. 2003). Plaintiff must act diligently both before and after the complaint is filed. Mears v. Sandoz Pharm., Inc., 300 N.J. Super. 622, 630 (App. Div. 1997). Failure to do so will bar plaintiff from amending a complaint to substitute a newly-identified defendant beyond the limitations period. See Matynska v. Fried, 175 N.J. 51, 53 (2002); Cardona v. Data Sys. Computer Ctr., 261 N.J. Super. 232, 234-35 (App. Div. 1992).
Here, plaintiff mistakenly thought she had fallen on sidewalk adjacent to a commercial building with an address of 5700 Bergenline Avenue and owned by Caram. She did not learn the identity of the true owner of the adjacent commercial property until two-and-a-half years after her accident. The trial court granted Modell's motion because it concluded that plaintiff had not exercised due diligence in determining that the location of her fall was not adjacent to Caram's property but to property owned by Modell's. The court stated that a review of West New York's tax map would have informed plaintiff and counsel that Caram's lot did not extend to the location of the fall and that the adjacent property was owned by Modell's.
Plaintiff cites a number of cases that involved product liability and medical malpractice causes of action in which the courts did not hold a plaintiff to the limitations period in discovering the identity of an alleged tortfeasor. Plaintiff argues her request for tax records of 5700 Bergenline Avenue was sufficient to demonstrate due diligence. She contends there was no visible indication of a boundary line separating that address from Modell's property.
Courts have been more lenient in applying the due diligence requirement of Rule 4:26-4 where the wrongdoing of a defendant or the complexities of the case explain the plaintiff's delay in learning the identity of a potentially liable party. See Viviano v. CBS, Inc., 101 N.J. 538, 556 (1986) (factory worker who injured her hand in a workplace accident was not barred by the statute of limitations from adding the manufacturer as a defendant because she was misled about the cause of the accident); Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 121-23 (1973) (worker injured by a factory machine could invoke the fictitious defendant rule to implead the machine's manufacturer beyond the statute of limitations because the machine was not in her possession and extensive discovery was required to identify the manufacturer).
Similarly, courts have permitted late amendment under the fictitious party rule where the newly-named defendant had notice of the claim within the limitations period and had in fact participated in the litigation, Claypotch, supra, 360 N.J. Super. at 482-83, or where the new defendants had "a unity of interests" with another defendant that had been timely sued, Ciaudelli v. City of Atlantic City, 268 N.J. Super. 439, 443, 446 (App. Div. 1993), certif. denied, 136 N.J. 28 (1994).
This case, however, involved a relatively simple matter of determining who owned the commercial property directly adjacent to the location of plaintiff's fall. There was no unity of interests between Caram and Modell's, and neither committed any wrongdoing in preventing plaintiff from learning who owned the property. Furthermore, plaintiff knew that other parties besides Caram might own the property adjacent to her fall; she indicated her knowledge of that possibility by designating such potentially liable parties as fictitiously-named defendants in her complaint.
Plaintiff knew better than anybody else where she had fallen. Within a week, she had photographs showing the exact location. Although a doorway with the 5700 number of Caram's property appeared nearby, there was no guarantee that the location of her fall was part of the property with that address. The hole in the sidewalk was closer to a garage door that could very well have been part of a different property, especially in a commercial area of a Hudson County business district, with small lots and attached buildings. In fact, as it turned out, the garage is not part of Caram's property at 5700 Bergenline Avenue. It is part of Modell's L-shaped property that fronts on both Bergenline Avenue and 57th Street.
Plaintiff and her attorney had several ways to learn that crucial fact in the two years from the time of the accident until the statute of limitations ran on December 4, 2011. They could have examined the municipal tax map, a public record available to anyone who makes a request in the municipal tax office. They could also have learned the information earlier from Caram by appropriate and diligent discovery requests — namely, a request for admission that the location of the fall was adjacent to his property, or a prompt deposition with detailed questioning. A visit to the site and inquiry of those familiar with the area may also have produced the information.
As the Court stated in Matynska, supra, 175 N.J. at 53, plaintiff "had an obligation to investigate . . . in a timely manner but did not do so." This appeal is controlled by our holdings in Johnston v. Muhlenberg Regional Medical Center, 326 N.J. Super. 203, 206-07 (App. Div. 1999); Mears, supra, 300 N.J. Super. at 629-30; Cardona, supra, 261 N.J. Super. at 234-35; and Marion v. Borough of Manasquan, 231 N.J. Super. 320, 334-35 (App. Div. 1989). Plaintiff did not make a diligent and timely effort to learn the true identity of the owner of the commercial property which may have been liable to her for allegedly failing to maintain the adjacent sidewalk.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION