LEOLA FREEMAN VS. CLAUDIO DICOVSKIY (L-3248-17, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

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 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.
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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.
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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

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 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

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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).
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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.

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 Reversed and remanded for further proceedings consistent with our

opinion. We do not retain jurisdiction.

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