                                NOT FOR PUBLICATION WITHOUT THE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-4333-18T3

SHIRLEY MALDONADO,

          Plaintiff-Appellant,

v.

DRAYTON CORPORATION,
CHESTER ASSOCIATES, a
New Jersey Partnership, GRAND
CHESTER ASSOCIATION, INC.,
OTHER SIDE LANDSCAPING, LLC
and ACTIVE FOOT AND ANKLE,
LLC, WHO OWNED, OPERATED,
MAINTAINED AND MANAGED
THE PARKING LOT AT 140 GRAND
AVENUE, ENGLEWOOD, NJ WHEN
PLAINTIFF WAS CAUSED TO SLIP
AND FALL,

     Defendants-Respondents.
__________________________________

                    Submitted April 22, 2020 — Decided May 11, 2020

                    Before Judges Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-3021-17.
            Franzblau Dratch, PC, attorneys for appellant (Brian
            Michael Dratch, of counsel and on the briefs).

            Zimmerer, Murray, Conyngham & Kunzier, attorneys
            for respondent Other Side Landscaping (Frank J.
            Kunzier, of counsel and on the brief; Sidney E.
            Goldstein, on the brief).

            Law Offices of Nancy L. Callegher, attorneys for
            respondents Drayton Corporation and Active Foot and
            Ankle, LLC (Joseph M. DiCicco, on the brief).

            Law Offices of Terkowitz & Hermesmann, attorneys
            for respondents Grand Chester Associates and Grand
            Chester Association, Inc. (Jonathan S. Robinson, on the
            brief).

PER CURIAM

      Plaintiff Shirley Maldonado appeals from a January 25, 2019 order

granting summary judgment in favor of defendants Drayton Corporation and

Active Foot and Ankle, LLC. She also challenges an April 26, 2019 order

granting defendants Grand Chester Associates and Grand Chester Association,

Inc., (collectively Grand Chester), and Other Side Landscaping, LLC's motions

to dismiss her complaint. We affirm.

      Plaintiff was a tenant in a building Grand Chester managed in Englewood.

On February 5, 2016, she parked and exited her car from her assigned space, fell

on ice and snow around her vehicle, and injured her left wrist. Active leases its

medical office space from Drayton in a building adjoining the lot where plaintiff

                                                                         A-4333-18T3
                                       2
fell. On February 25, 2016, plaintiff's former counsel sent a letter to Grand

Chester, informing it of the incident, seeking information regarding its insurance

carrier, and requesting video surveillance of the lot.

      On May 1, 2017, plaintiff filed a complaint against Drayton and fictitious

corporate entities who owned, operated, maintained, and managed the parking

lot. Plaintiff named Drayton as a defendant based on the tax assessor records,

which listed Drayton as the owner of the lot.

      In addition to deposing its principal and sole shareholder, Drayton's

answers to written discovery asserted plaintiff was injured on property Grand

Chester "owned and/or maintained."          As a result, plaintiff amended her

complaint to name Grand Chester and Active on June 27, 2018. Grand Chester

moved to dismiss the amended complaint on grounds it exceeded the statute of

limitations. Grand Chester's motion averred it controlled the portion of the lot

where plaintiff was injured, pursuant to an easement, and contracted with Other

Side for snow and ice removal on the date of plaintiff's accident.

      Drayton and Active moved for summary judgment, arguing they were not

responsible for, or in control of, the area where plaintiff sustained her injury.

The motion judge granted the motion, noting:

            The entity giving the easement is not [Drayton] and it's
            not [Active]. The easement is dated April 23, 1982. So

                                                                          A-4333-18T3
                                        3
that is . . . a parking easement for the alleged unit
owners' parking spaces . . . given to the condo unit
association [thirty-six] years ago.

      Now if in fact Drayton were the owner of . . .
those particular parking spots then the easement would
have been given by Drayton to the entity who received
the easement, which is Grand Chester Association,
which is the same name which appears on the sign
outside of where the lead-up, or the entrance, or the
egress/ingress driveway to that lot on the pictures that
counsel were kind enough to show me this morning.

. . . Drayton is not the owner of the unit parking spots
which were given by easement to the association. . . .
[T]hose units were owned by Grand Chester Associates
before the easement was given in 1982 to Grand
Chester Association. . . .

         So the opposition to this motion is that the tax
assessor's office says Drayton owns this property. Now
. . . I don't know what the property is. I have no actual
survey in front of me showing a border to the property
that Drayton arguably owns. I think it's pretty clear . . .
Drayton owns the building. What part of the parking
lot if any Drayton owns I simply don't know. And also
logically it would seem that for Grand—if in fact
Drayton owns part of the parking lot then there should
be something on file somewhere by which Drayton
deeded or gave an easement to Grand Chester
Associates sometime in 1982 or earlier such that Grand
Chester Associates could then give another easement to
the Grand Chester Association in 1982.

      All of this means . . . Drayton has had nothing to
do with what the easement gave to the association. And
it wasn't even Drayton who gave it to the association.
It was Grand Chester Associates.

                                                              A-4333-18T3
                            4
                 ....

                 But no one is telling me anything other than
           [Drayton and Active] saying I have nothing . . . to do
           with those particular spots, inclusive of the area where
           the plaintiff fell. And the only thing that I have to deal
           with on my spots, I have my own private snow company
           taking care of snow removal from that area and
           somebody else takes care of the rest of the lot . . .
           whereby an entity known as [Other Side] has a contract
           not with Drayton, but with Grand Chester Condo
           Association for the winter season of 2015 and 2016,
           which I believe is inclusive of the date of plaintiff's
           accident.

                 ....

           . . . I don't think [Drayton's ownership] has been
           established notwithstanding the tax assessor's
           comments because I don't know physically what that lot
           and block number includes and whether it includes the
           exact area where the plaintiff fell, or if it includes the
           parking lot entirely, or part of it, or something else. . . .

                   So . . . control is the key. . . . Drayton or [Active]
           . . . has nothing to do with that property where plaintiff
           fell, didn't sign any contract for snow removal, had
           literally no control or contact with that property at all.
           And it is clear that [they] didn't sign the snow removal
           contract which was in effect for the area where plaintiff
           fell.

     After the judge granted Drayton and Active summary judgment, plaintiff

amended her complaint to name Other Side. Other Side moved to dismiss the




                                                                            A-4333-18T3
                                         5
complaint as beyond the statute of limitations. The motion judge made the

following findings:

                  At the plaintiff's deposition, there was an
            indication that it looked like the area had been plowed
            already . . . .

                  ....

                   So the fact that there was arguably plowing done
            where the plaintiff knew she was parking at the time
            that she fell does not indicate to me that this is somehow
            new knowledge that there was somebody plowing the
            area. This knowledge dates way back to when the
            complaint was originally filed.

            . . . There may have been some confusion with respect
            to who the tax assessor's office reflected as the owner
            of the property. But at the same time, everybody knew
            that where the plaintiff was parking was assigned to her
            or assigned to who she leased the apartment from by the
            entity Grand Chester . . . . So we certainly knew Grand
            Chester was involved in some way because they
            assigned that particular spot. We knew plowing had
            occurred. We knew what the tax assessor's office
            [stated]. So I'm looking at this, and then [nine] months
            go by and the statute of limitation runs.

                 Respectfully . . . discovery could have been
            pushed forward at a quicker rate at the time the
            complaint was originally filed. There could have been
            [depositions] taken earlier. . . .

            . . . [F]rom a timeline perspective, the plaintiff had
            [nine] months to find out who was involved in this case.
            And from a due diligence perspective under the


                                                                         A-4333-18T3
                                        6
             [Matynska][1] case, under the Mears[2] case, and may
             have been the Viviano[3] case, the due diligence is not
             just before the statute runs [nine] months after the
             complaint was filed, but also after the statute runs. I
             just feel this could have been done on a quicker basis.

                     And if I understand what [plaintiff's counsel] is
             saying, he first learned about it when he was told by
             other parties . . . maybe it was more than a year after he
             filed the complaint. The reality is this information was
             not hidden from anybody. It was delayed. Arguably
             plaintiff could have moved to get the information
             quicker [but] [d]id not do so. Nobody misled anybody
             . . . no part of this case at any point misled anyone with
             false information about who was involved and who was
             not involved.

             . . . [A]t the time that I granted the . . . motion to amend
             the complaint to bring in [Other Side] . . . I didn't
             consider the merits of the case . . . [and n]ow I am . . . .
             The position [Other Side] is in is no different . . . than
             the position Grand Chester was in because that is who
             hired [Other Side] to do the plowing.

                   And so having granted Grand Chester's motion on
             the same fictitious designation issues this moving party
             raises before me at this time, I'm hard-pressed not to
             grant it for the same reasons.

                  I would also note one or two other factors. . . .
             [Mears] imposes a due diligence obligation before and

1
    Matynska v. Fried, 175 N.J. 51 (2002).
2
    Mears v. Sandoz Pharm., Inc., 300 N.J. Super. 622 (App. Div. 1997).
3
    Viviano v. CBS, Inc., 101 N.J. 538 (1986).


                                                                            A-4333-18T3
                                          7
              after the statute runs. With respect to the invoice, there
              is a specific notation that some form of . . . ice remedy
              was salted or sanded . . . on the invoice . . . of [Other
              Side]. There is no indication in that invoice that they
              knew about this particular accident.

                   And even if they did somehow know . . . there
              was no indication that they knew they were being sued.
              People fall all the time and don't necessarily file a
              lawsuit. . . .

                     I don't feel that there was due diligence either
              before or after the statute of limitations. And under the
              [Mears] case, under the [Matynska] case, this is not
              information that could not have been known. The
              plaintiff could have asked Grand Chester who did the
              snow plowing or what their connection was to the place
              where Other Side . . . was in fact plowing . . . who was
              involved in that area. And that would have generated
              identities at a much earlier time.

                                          I.

     We review de novo a trial court's decision to grant or deny a motion to

dismiss pursuant to Rule 4:6–2(e). Rezem Family Assoc., LP v. Borough of

Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011). A de novo standard also

applies "[w]hen the legal conclusions of a trial court on a Rule 4:46 summary

judgment decision are reviewed on appeal." McDade v. Siazon, 208 N.J. 463,

473 (2011).

     Plaintiff raises the following arguments on appeal: 1) Drayton's delay in

providing interrogatory responses prevented her from learning Other Side's

                                                                           A-4333-18T3
                                          8
identity before the statute of limitations expired; 2) she acted with diligence in

ascertaining Grand Chester and Other Side's identity because she relied on the

tax assessor information, lacked other information indicating Grand Chester's

involvement, and was not required to perform a title search to ascertain the

owner of the lot; 3) Drayton's intentional delay in responding to interrogatories

prevented her from discovering Grand Chester's involvement; 4) Other Side and

Grand Chester did not demonstrate how the delay in naming them was

prejudicial on the motion to dismiss; and 5) summary judgment was

inappropriate where Drayton and Active never refuted the tax assessor's records,

which established ownership of the lot.

      Pursuant to N.J.S.A. 2A:14-2, plaintiff had two years to commence her

personal injury suit. However, "determination of the accrual of a cause of action

is an issue for the court." Baird v. Am. Med. Optics, 155 N.J. 54, 65 (1998).

An "injured party's awareness of the injury and the fault of another" is critical

to determining the accrual date. Id. at 66.

      Rule 4:26-4 "suspends the running of the [s]tatute of [l]imitations when a

plaintiff does not know the true identity of a defendant." Mears, 300 N.J. Super.

at 628. Pursuant to the rule

            [t]he identification of a defendant by a fictitious name
            . . . may be used only if a defendant's true name cannot

                                                                          A-4333-18T3
                                        9
be ascertained by the exercise of due diligence prior to
filing the complaint. Mears, 300 N.J. Super. at 631-33;
Cardona v. Data Sys. Computer Ctr., 261 N.J. Super.
232, 235 (App. Div. 1992). If a defendant is properly
identified by a fictitious name before expiration of the
applicable limitations period, an amended complaint
substituting a fictitiously named defendant's true name
will relate back to the date of filing of the original
complaint. Viviano, 101 N.J. at 548; Farrell v. Votator
Div. of Chemetron Corp., 62 N.J. 111, 120-23 (1973).
To be entitled to the benefit of this rule, a plaintiff must
proceed with due diligence in ascertaining the
fictitiously identified defendant's true name and
amending the complaint to correctly identify that
defendant. Farrell, 62 N.J. at 120; Johnston v.
Muhlenberg Reg'l Med. Ctr., 326 N.J. Super. 203, 208
(App. Div. 1999). In determining whether a plaintiff
has acted with due diligence in substituting the true
name of a fictitiously identified defendant, a crucial
factor is whether the defendant has been prejudiced by
the delay in its identification as a potentially liable
party and service of the amended complaint. Farrell, 62
N.J. at 122-23.

[Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80
(App. Div. 2003).]

. . . An amendment changing the party against whom a
claim is asserted relates back if the [the claim asserted
in the amended pleading arose out of the conduct,
transaction or occurrence set forth or attempted to be
set forth in the original pleading] . . . and, within the
period provided by law for commencing the action
against the party to be brought in by amendment, that
party (1) has received such notice of the institution of
the action that the party will not be prejudiced in
maintaining a defense on the merits, and (2) knew or
should have known that, but for a mistake concerning

                                                               A-4333-18T3
                           10
            the identity of the proper party, the action would have
            been brought against the party to be brought in by
            amendment.

            [Rule 4:9-3.]

      We discern no error in the decision to dismiss Grand Chester. Plaintiff's

accident occurred in February 2016, she filed her complaint in May 2017, and

did not amend the complaint to name Grand Chester until June 27, 2018. This

was not a situation where "defendant's true name [could not] be ascertained by

the exercise of due diligence prior to filing the complaint." Claypotch, 360 N.J.

Super. at 479-80. Plaintiff knew Grand Chester's possible connection to the

incident in February 2016 when counsel corresponded with it, advising of the

accident, asking it to identify its insurance carrier, and requesting video

surveillance evidence. For these reasons, we also reject plaintiff's argument that

Drayton intentionally delayed her discovery of Grand Chester's involvement.

We agree with the motion judge, plaintiff did not demonstrate diligence in

identifying Grand Chester prior to the expiration of the statute of limitations.

      Plaintiff also lacked diligence in identifying Other Side. Other Side's

identity was revealed in Grand Chester's July 2018 motion papers, yet plaintiff

failed to name Other Side until December 13, 2018. Furthermore, there is no




                                                                          A-4333-18T3
                                       11
evidence in the record that Other Side had notice of plaintiff's incident or the

lawsuit.

      We reject plaintiff's argument that the motion to dismiss should have been

denied because Other Side and Grand Chester failed to demonstrate they were

prejudiced by the delay in naming them. Plaintiff was not diligent in identifying

and naming both Grand Chester and Other Side before filing the complaint or

before the expiration of the statute of limitations. See Baez v. Paulo, 453 N.J.

Super. 422, 444 n.10 (App. Div. 2018) ("[A]s illustrated by the Court's omission

of a discussion of prejudice in its more recent opinion in Matynska, sometimes

a plaintiff’s lack of due diligence in omitting a defendant is sufficiently clear so

as to render an analysis of actual prejudice unnecessary.").

      Finally, we reject plaintiff's argument that Drayton and Active did not

refute the tax assessor's records, which proved ownership of the lot and therefore

thwarted summary judgment in their favor. As the motion judge found, neither

the discovery plaintiff obtained, nor the tax assessment records established

which part of the lot Drayton owned, and did not aid him in determining whether

it owned the portion of the lot where plaintiff fell. The judge could not reach

plaintiff's argument regarding the duty Drayton or Active owed to invitees

without plaintiff first hurdling the issue of ownership.


                                                                            A-4333-18T3
                                        12
Affirmed.




                 A-4333-18T3
            13
