                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1955-13T2




PANAGIOTI L. GIANNAKOPOULOS,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                          December 31, 2014
v.
                                         APPELLATE DIVISION
MID STATE MALL,
MARK E. ZELINA, ENGINEER, and
MASER CONSULTING, P.A.,

     Defendants-Respondents.
_______________________________

MASER CONSULTING, P.A.,

     Third-Party Plaintiff,

v.

YOKO KNOX,

     Third-Party Defendant.
________________________________

         Argued November 12, 2014 - Decided December 31, 2014

         Before   Judges    Reisner,   Koblitz    and
         Haas.

         On appeal from the Superior Court of
         New Jersey, Law Division, Middlesex
         County, Docket No. L-5232-11.

         Richard W. Wedinger argued the cause
         for   appellant (Barry,  McTiernan &
            Wedinger, attorneys; Mr. Wedinger             and
            Laurel A. Wedinger, on the briefs).

            Nora   Coleman   (Haworth  Coleman &
            Gerstman, LLC) argued the cause for
            respondent Mid State Mall.

            Joseph T. Ciampoli argued the cause for
            respondents Mark E. Zelina and Maser
            Consulting, P.A. (Thompson Becker &
            Bothwell,    L.L.C.,   attorneys;   Mr.
            Ciampoli, on the brief).

            The opinion of the court was delivered by

REISNER, P.J.A.D.

       Plaintiff   Panagioti    L.   Giannakopoulos        appeals        from     a

September 12, 2013 order granting defendant Mid State Mall's

motion for reconsideration and dismissing plaintiff's complaint

against MidState1.     Plaintiff also appeals from a September 12,

2013    order   granting   summary   judgment    in   favor     of   defendants

Maser    Consulting,   P.A.,   and   Maser   engineer       Mark     E.    Zelina

(collectively,     Maser).      Plaintiff       further    appeals        from     a

December 6, 2013 order denying his motion for reconsideration.

       To summarize, we conclude that in reconsidering a prior

judge's decision to reinstate plaintiff's complaint, the trial

court misapplied the standards set forth in Rule 1:13-7(a).                      The

trial court also erred in failing to hold a N.J.R.E. 104 hearing


1
  As discussed later in this opinion, defendant was misnamed in
the complaint as Mid State Mall, when its corporate name is
MidState Hye, L.P. We will refer to defendant as MidState.



                                      2                                   A-1955-13T2
to evaluate plaintiff's claim that he was entitled to tolling of

the statute of limitations under N.J.S.A. 2A:14-21 due to his

mental    incapacity.        Consequently,     we    reverse      and    remand   for

further proceedings consistent with this opinion.

                                         I

    We engage in de novo review of the trial court's decision

on the summary judgment motion and the motion to dismiss.                         Town

of Kearny v. Brandt, 214 N.J. 76, 91 (2013).                   In fact, because

the court considered documents outside the pleadings in deciding

the latter motion, it is also treated as a summary judgment

motion.    R. 4:6-2(e); Jersey City Educ. Ass'n. v. City of Jersey

City, 316 N.J. Super. 245, 254 (App. Div. 1998), certif. denied,

158 N.J. 71 (1999).           Accordingly, we review the factual record

in the light most favorable to plaintiff.                    Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).                         We review a

judge's    decision     on    a   reconsideration      motion      for    abuse    of

discretion.      Cummings v. Bahr, 295 N.J. Super. 374, 389 (App.

Div. 1996).      However, we owe no special deference to a trial

judge's legal interpretations in deciding any motion.                     Manalapan

Realty,   L.P.   v.   Twp.     Comm.   of    Manalapan,     140    N.J.    366,   378

(1995).

    Viewed through the lens of the applicable legal standards,

these    are   the   facts.       On   May   19,    2008,   plaintiff      suffered




                                         3                                  A-1955-13T2
horrendous and life-changing injuries when an automobile making

a   left   turn    out    of   the   Mid   State      Mall   parking   lot    struck

plaintiff's motorcycle.          At the time of the accident, plaintiff

was proceeding past the mall with the right of way in his favor.

      Two days after the accident, on May 21, 2008, plaintiff

allegedly signed a durable power of attorney (POA) naming his

brother    as     his    fiduciary   for       all   purposes   relating     to    his

property and finances.          Among other things, the POA recited that

in any future protective proceedings for his person or estate,

plaintiff nominated his brother to serve as his guardian.                          The

POA did not specifically authorize the brother to make decisions

as to plaintiff's medical treatment.                 However, an August 5, 2013

certification from the brother attested that the POA was signed

at the hospital's request so the brother could make medical

decisions for plaintiff.2




2
  At his deposition, plaintiff was unable to positively identify
his signature on the POA. Further, as noted later in this
opinion, plaintiff's medical records indicate that he underwent
extensive surgery on the day of the accident, May 19, 2008, and
was in a coma for several months thereafter.      It is possible
that the coma was medically induced a day or two after the
surgery and that plaintiff signed the POA in contemplation of
being placed in the coma. That would be consistent with
representations   made  to   us  at  oral   argument  concerning
plaintiff's intent to permit his brother to make medical
decisions for him, and with the brother's August 5, 2013
certification.




                                           4                                 A-1955-13T2
       Plaintiff never filed a lawsuit against the driver of the

car   that   hit    him.      Due   to   the   extensive      injuries   plaintiff

suffered     and    the    driver's      obvious     liability,    her    insurance

company offered to pay its entire policy within a day or two

after the accident.           Because the settlement involved setting up

special needs trusts for plaintiff and his young daughter, who

was giving up any lawsuit rights she may have had in return for

a portion of the settlement, a hearing was held in January 2009,

before General Equity Presiding Judge Frank M. Ciuffani, who

approved the settlement and the trusts.3

      Plaintiff      was      not   present     at     the    friendly    hearing.

Plaintiff's      then-attorney      stated     to    Judge    Ciuffani    that   his

client     was     mentally     competent,     though        severely    physically

incapacitated.       Plaintiff's brother, who held his POA, testified

that he managed plaintiff's affairs on a daily basis.                      He also

testified briefly that he had discussed the proposed settlement

with plaintiff, and that the reason the settlement included a

special needs trust for the daughter was that plaintiff wanted

to be sure that her needs were met.                  A finding that plaintiff

was mentally incapacitated on the date of the friendly hearing

would require a court to find that the attorney misrepresented

3
  Although the hearing resulted from a settlement reached without
the filing of a personal injury lawsuit, we will refer to the
proceeding as a "friendly" hearing. See R. 4:44-1; R. 4:44-3.



                                           5                               A-1955-13T2
or overstated plaintiff's mental capacity, and that the brother

either intentionally misstated plaintiff's cognitive ability or

believed that plaintiff wanted what the brother thought was best

for     him,    despite       plaintiff's           inability    to    make   meaningful

decisions.         We discuss the facts relating to this issue later in

this decision.

      Over     a     year   later,       on   May     19,   2010,     plaintiff's     then-

counsel filed a complaint against MidState, alleging negligence

in the configuration of the turning lane from which the auto

driver had exited.            That complaint was filed within the two-year

statute of limitations.                 On May 27, 2010, the attorney filed an

amended complaint naming several "John Doe" defendants but not

describing them with any particularity; that amendment was filed

beyond the two-year limitations period.

      The      attorney      attempted        service       on   MidState     by   Federal

Express (FedEx).            However, the package was addressed to the mall

premises on Route 18 and Tices Lane in East Brunswick, rather

than to the Paramus offices of the corporation that owned the

Mall.     A FedEx invoice dated June 14, 2010 reported "Incorrect

recipient address," and reported that FedEx made a "1st attempt

Jun 09, 2010 at 10:31 A.M." but the package was "undeliverable."

However,       the      invoice     also      reported        that    the   package      was

"Delivered"        on    "Jun     11,    2010       18:36."      Hence,     viewing    this




                                                6                                  A-1955-13T2
evidence in the light most favorable to plaintiff, the complaint

was delivered to the mall premises.

    However,      MidState     submitted     evidence      that       its   corporate

owner    never    received     the    complaint.     MidState          submitted      a

certification of the Mall's property manager, attesting that the

Mall was owned by a corporation called MidState Hye, L.P., with

offices in Paramus.       She stated that the mall consisted only of

retail stores and there was "no central office for 'Mid State

Mall' anywhere at the mall itself."                 She also attested that

there was no location in the mall to leave packages addressed to

Mid State Mall, other than one of the retail tenants, and that

Midstate Hye, L.P. had never received a FedEx package containing

plaintiff's May 19, 2010 complaint.

    The    complaint     was   dismissed     for    lack       of    prosecution    on

December 3, 2010.        Instead of filing a motion to reinstate the

original amended complaint, plaintiff's then-attorney filed a

new complaint on July 19, 2011, naming as defendants MidState,

Maser    (misspelled     as    "Master")      and   its        engineer,      Zelina.

Plaintiff's counsel served this complaint on MidState at its

corporate offices on August 1, 2011.                 When MidState filed a

motion   to    dismiss   based   on   the    statute      of    limitations,       the

attorney      realized   his   mistake      and   filed    a        cross-motion     to

reinstate the original complaint.




                                       7                                     A-1955-13T2
       In     support       of    that     motion         and    in     opposition          to     the

dismissal motion, plaintiff's then-attorney filed certifications

in which he attested that his client had been incapacitated

since the time of the accident.                      The attorney attested that due

to     plaintiff's      injuries,          he    was       "institutionalized               at     the

Madison Center" in Old Bridge.                       The attorney submitted medical

records       which    he    contended          showed      his       client's    incapacity.

Plaintiff also filed an October 30, 2011 expert report from Dr.

Leon H. Waller, noting that the accident caused plaintiff to

suffer a closed head injury with traumatic brain injury, mood

disorder       and    cognitive          dysfunction,           along    with     a     host        of

physical disabilities including paraplegia.                              Dr. Waller opined

that    the    medications         required      to       treat    these    conditions             "by

themselves diminish one's cognitive skills," thereby aggravating

and     compounding         plaintiff's          existing         "underlying          cognitive

dysfunction as a direct result of the accident."                                      Dr. Waller

opined that plaintiff "did not possess the cognitive capacity to

competently      decide          the    course       of   his     medical    care       or       make

decisions regarding his legal rights and representation."

       Plaintiff's attorney also certified that MidState had been

"successfully served" with the original complaint; he submitted

documentation         from       FedEx    confirming        delivery.            In    response,

MidState       asserted          that    the     original         complaint           was        never




                                                 8                                          A-1955-13T2
personally served, and that service by FedEx was insufficient

under Rule 4:4-3.          MidState also contended that the medical

records        demonstrated    that    plaintiff      was     not   mentally

incapacitated, but MidState did not submit an expert report to

contradict Dr. Waller's report.

    The motion and cross-motion were heard before Judge Martin

E. Kravarik on November 4, 2011.             In contrast to what he told

Judge Ciuffani, plaintiff's counsel told Judge Kravarik that the

trust approved in the friendly settlement was negotiated and

agreed    to    by   plaintiff's   brother   Nick   because   plaintiff   was

incapable of making those decisions. The attorney told Judge

Kravarik:

               [O]n certain occasions when he [Nick] did
               try to discuss any of these matters with his
               brother, his brother would become very
               emotional and incoherent.     He is heavily
               medicated and will be so for the rest of his
               life.

                    Suffice it to say that he is now
               struggling with the pain management and the
               continued addiction on these painkillers
               which is something that they give the
               patients regularly, unfortunately.

                     . . . .

                    . . . [T]he fact is that he wasn't
               making any decision with tubes down his body
               and in his mouth and through his nose, and
               he continues to be in a state where he does
               not make any decisions on his own behalf.




                                       9                            A-1955-13T2
     In an oral opinion, Judge Kravarik noted that the two-year

statute of limitations, N.J.S.A. 2A:14-2, could be tolled by

insanity and mental derangement, or lack of consciousness.                      See

N.J.S.A.    2A:14-21.        While   expressing    some    concern        for   the

possible prejudice to the defendant, the judge reasoned that it

would be unjust to deny "a person who is mentally and physically

incapacitated his day in court."            Judge Kravarik explained that

Judge Ciuffani's action in appointing a trustee for plaintiff

supported    plaintiff's     contention     that   he   was    incapacitated.

Judge Kravarik therefore held that the statute of limitations

would be tolled to the date of the motion hearing, and appointed

plaintiff's brother as his guardian ad litem "for the purpose of

this suit since he's also the medical representative and trustee

in   equity."      Judge   Kravarik     also   reinstated          the    original

complaint    and    deemed    the    second    complaint      as     an    amended

complaint which related back to the initial filing of the first

complaint.

     However, the judge told defense counsel that if discovery

revealed "that the relief granted was not warranted you may file

an[] appropriate [m]otion for reconsideration."                The judge also

directed    plaintiff's      counsel   to   immediately       provide     defense

counsel with full access to plaintiff's medical records.                        The

court's ruling was memorialized in an order dated November 4,




                                       10                                 A-1955-13T2
2011.     The judge later amended the order to provide that the

statute       of   limitations      was    "tolled     through      April    4,     2012."

Plaintiff served the amended complaint on Maser on February 6,

2012.

    Following          the    motion      before     Judge    Kravarik,       plaintiff

retained new counsel and the parties engaged in discovery on all

issues.       After the parties completed discovery, MidState filed a

motion for reconsideration on or about August 6, 2013, and Maser

filed     a    motion     for      summary        judgment   on     the     statute      of

limitations issue.            In support of the reconsideration motion,

which was to be heard by a second judge who was new to the case,

MidState's         counsel    submitted      the     same    materials       that      were

presented to Judge Kravarik, plus the transcript of the hearing

before Judge Ciuffani and portions of plaintiff's deposition.

    During          his   deposition,        plaintiff       was    able     to     answer

questions,         however,   he    could    not     remember      the    circumstances

under which the original lawsuit was filed.                        He explained that

"[b]ack then, after the coma, like after all that stuff happened

I woke up.         I was getting sick a lot and going to the hospital,

going to a new nursing home.                I was so out of it.             You know, I

was in so much pain. . . .                And so I may have said stuff, but .

. . a lot of stuff was blurry to me . . . at one point I tried

to call my brother by dialing my cell phone.                        I was pushing my




                                             11                                   A-1955-13T2
hand and thinking that I would be able to call my brother. . .

."   He also testified that he did not remember signing the POA

naming his brother as his fiduciary.

      Plaintiff's medical records, submitted in opposition to the

reconsideration      motion      and   Maser's    summary     judgment     motion,

indicated    that    plaintiff     was   conscious      and   alert    immediately

after the accident, but after surgery performed on May 19, 2008,

he   was   "in   a   coma    state     for    several   weeks,    on    mechanical

ventilation and parenteral nutritional support."                       It appeared

that he did not fully emerge from the coma state until July 9,

2008, when he was weaned from the ventilator.                    However, he was

noted to be heavily medicated and in intractable pain.                    Hospital

records reflect that plaintiff's brother and father consented to

various medical procedures on his behalf during May, June, and

July 2008.

        Plaintiff also submitted a second report from Dr. Waller

dated July 15, 2013.         Based on his examination of plaintiff, Dr.

Waller opined that plaintiff remained incapacitated due to his

severe neurological injuries.            None of the defendants submitted

any medical expert reports to contradict Dr. Waller's July 2013

report or his earlier report.

      Plaintiff also submitted a certification from his brother

Nick,   dated    August     5,   2013,   explaining      in   great    detail   the




                                         12                               A-1955-13T2
extent of plaintiff's limitations.                   Nick attested that plaintiff

signed     a   power    of    attorney        shortly      after   the    May    19,    2008

accident, as he was about to undergo surgery, and attested that

plaintiff       was   then    in    a    medical     coma    for   months       afterward.

Nick's     certification       explained        plaintiff's        inability      to    make

decisions,       stated      that   he    was      lucid    only   sporadically,        and

attested that there was no intent to mislead Judge Ciuffani at

the friendly hearing concerning plaintiff's mental condition.

The brother stated:           "If Peter was normal and competent he would

not have needed a trustee and I would not have to take care of

him. . . .        From the day of the accident I have taken on the

responsibilities for my brother's life and well[-]being which is

a 24/7 obligation. . . .                  To this day Peter is not mentally

competent or consistent. . . .                     [A]ny mental stress can cause

him to become irrational and childlike. . . .                            When he is on

dilaudid or recovering from it[,] these disabilities are even

worse."

      In   an    oral     opinion,       on   September      12,    2013,   the    newly-

assigned motion judge (hereafter, the "second judge" or "the

judge") determined that plaintiff was competent at the time that

his   attorney        appeared      before     Judge    Ciuffani,        "based    on   the

representation of his attorney."                   In other words, regardless of

plaintiff's medical proofs concerning his incapacity, the second




                                              13                                  A-1955-13T2
judge reasoned that plaintiff was bound by his former attorney's

statement at the friendly hearing.4              The judge also concluded

that,   even    if    plaintiff   was       incapacitated,    once     plaintiff

retained an attorney to file a complaint on his behalf, the

statute of limitations was no longer tolled by virtue of his

incapacity.     The judge reasoned "that in the alternative, if he

was not competent, the fact that he had an attorney, not on a

collateral matter, but on the direct matter which is in front of

me   now,   would     have   created    a    running    of   the     statute   of

limitations."

     The judge considered that "[o]nce an incompetent person or

those on his behalf engages an attorney, to handle a litigated

matter, the statute begins to run. . . .               You can't litigate in

piecemeal against one defendant one day and another defendant

another day.         And a third defendant another day."              The judge

reasoned that Unkert v. General Motors Corp., 301 N.J. Super.

583, 591 (App. Div.), certif. denied, 152 N.J. 10 (1997), was

not on point, because in that case the plaintiff was represented

by counsel on a different matter from the tort suit in which he

claimed tolling of the limitations period.


4
  During the oral argument, the judge initially commented that
the court might need to hold an evidentiary hearing under
N.J.R.E. 104, to determine the competency issue.     However, the
judge apparently decided that such a hearing was not necessary.



                                       14                               A-1955-13T2
      The judge also concluded that the failure to successfully

serve the complaint on MidState in 2010 defeated plaintiff's

right    to   have    the   complaint       reinstated     in   2011.        The      judge

reasoned       that     even     if     plaintiff's      counsel         made    errors,

"[a]ttorneys' negligence is no longer excused."5                     The judge also

stated that defendants were prejudiced by the delay, without

specifying the facts on which that conclusion was based.6                                On

September      12,      2013,     the    trial     court     entered       two     orders

dismissing      the     complaint,      respectively,      against        MidState     and

Maser.

      On      October     3,     2013,    plaintiff        filed     a     motion      for

reconsideration of the second judge's September 12, 2013 orders.

The   motion     included       evidence     supporting      the     merits      of    the

underlying      lawsuit,        including    the    report      of   an    engineering

expert.       Both sides submitted additional information concerning

the FedEx service on MidState.




5
  As further discussed in Part IIA, infra, Rule 1:13-7(a) applies
a good cause standard for reinstatement motions in single-
defendant cases, but applies an exceptional circumstances
standard in multi-defendant cases where at least one of the
several defendants has been properly served.        Based on the
quoted language, we infer that the judge applied the exceptional
circumstances standard.
6
  None of the defendants submitted legally competent evidence
that the delay in serving the complaint caused them any actual
prejudice in their ability to defend against the lawsuit.



                                            15                                   A-1955-13T2
      In a written opinion dated December 6, 2013, the second

judge    denied   plaintiff's     reconsideration          motion.        The    judge

concluded     that   the     motion    was     procedurally       barred        as    to

MidState, reasoning that Rule 4:49-2 prohibited the filing of a

second   reconsideration      motion,       even    if   filed   by   a   different

party than the one who filed the first reconsideration motion.

The   judge   also   found    that    failure      to    effectively      serve      the

original complaint on MidState barred the court from finding

that service of the second or amended complaint on Maser related

back to the date of filing of the original complaint.                     The judge

concluded     that   delivering       the    complaint      to    the     mall       was

ineffective, because that was not MidState's correct business

address and there was no proof that MidState received actual

notice of the complaint as a result of that attempted service.

This appeal followed.

                                      II

                                      A.

      MidState and Maser stand in different procedural postures,

because plaintiff filed a timely complaint against MidState, but

filed the complaint against Maser more than a year beyond the

two-year statute of limitations.               We begin by considering the

second    judge's    decision    to    grant       MidState's    reconsideration

motion and dismiss the complaint against that defendant.




                                       16                                   A-1955-13T2
     We conclude that it was a mistaken exercise of discretion

to   dismiss    the    complaint     against      MidState.7     There       was    no

explanation    for    the    lapse   of    just   over   a   year     between      the

attempted    service    on   MidState      and    the   filing   of    the     second

complaint.     However, the original complaint was filed within the

statute of limitations and could have been reinstated on motion,

for good cause shown, even if plaintiff had not served MidState.

See Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 384-85

(App. Div. 2011).       Consequently, the former attorney's mistake

in having the complaint served on Midstate at the mall's address

instead of at Midstate's corporate headquarters, in itself, does

not bar reinstatement.

     The Rules are to be construed so as to do justice, and

ordinarily an innocent plaintiff should not be penalized for his

attorney's mistakes.          See Baskett, supra, 422 N.J. Super. at

385; Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257,

263 (App. Div. 2007).         In applying the good cause standard for

reinstating a complaint under Rule 1:13-7(a), "we are satisfied

that, absent a finding of fault by the plaintiff and prejudice

7
  While it does not merit extended discussion, we also conclude
the judge erred in finding that plaintiff's reconsideration
motion was procedurally barred.    Plaintiff was not guilty of
filing repetitive reconsideration motions; rather, this was his
first motion for reconsideration of an order dismissing his
complaint. He had a right to file that motion under Rule 4:49-
2.



                                          17                                 A-1955-13T2
to the defendant, a motion to restore under the rule should be

viewed with great liberality."            Ghandi v. Cespedes, 390 N.J.

Super. 193, 197 (App. Div. 2007).          Where, as here, there was no

legally competent proof of prejudice to MidState from the delay

in service, and no evidence that plaintiff was at fault, the

interests of justice were not served by punishing this gravely

injured, innocent plaintiff for his former attorney's evident

inattention to this matter.      Baskett, supra, 422 N.J. Super. at

385.

       Moreover,   the   provision   of    Rule   1:13-7(a)    requiring    a

showing of exceptional circumstances in multi-defendant cases

does not apply here, because Maser was not added to the case

until after the filing of the second complaint. 8               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.    See    Pressler    &


8
  The history of Rule 1:13-7(a) confirms that the exceptional
circumstances standard was intended to apply only in multi-
defendant cases. Baskett, supra, 422 N.J. Super. at 383-84 n.4.
Moreover, by 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." According to
MidState's evidence, that standard was not met at the time Judge
Kravarik reinstated the complaint, because neither MidState nor
Maser had been properly served.




                                     18                            A-1955-13T2
Verniero, Current N.J. Court Rules, comment 1.2 on R. 1:13-7

(2015).      Here, the Maser defendants were not even served with

the amended complaint until after Judge Kravarik reinstated the

original     complaint.       Hence   reinstating         the   complaint     against

MidState did not cause the kind of delay the Rule was intended

to prevent.      Moreover, by the time MidState filed its motion for

reconsideration, the parties had completed discovery and, but

for the second judge's decision to dismiss the case, it could

have proceeded to trial.              Accordingly, we reverse the order

dismissing the complaint against MidState and we direct that the

complaint be reinstated.

                                          B.

       Next, we address the complaint against Maser.                     Because it

was    filed    out    of   time,   and   Maser     had    no   prior    notice      of

plaintiff's cause of action, the Maser complaint cannot relate

back to the date of filing of the original complaint against

MidState.9       See R. 4:9-3; Walker v. Choudhary, 425 N.J. Super.

135,   143     (App.   Div.),   certif.        denied,    211   N.J.    274   (2012).

However, we conclude that the trial court mistakenly exercised

its discretion by granting summary judgment for Maser, because

viewing the facts in the light most favorable to plaintiff, he

9
  Even the May 27, 2010 amendment, which included "John Doe"
defendants, was filed outside the two-year limitations period.




                                          19                                  A-1955-13T2
was mentally incapacitated as a result of the accident and the

statute of limitations was tolled.             N.J.S.A. 2A:14-21.      Hence,

we vacate the order granting summary judgment in favor of Maser

and we remand for an evidentiary hearing on the tolling issue.10

     The   two-year   statute    of        limitations   for    commencing    a

personal injury lawsuit, N.J.S.A. 2A:14-2, may be tolled by the

plaintiff's mental incapacity:

           If a person entitled to commence an action
           or proceeding specified in N.J.S.A. 2A:14-1
           to 2A:14-8 . . . is . . . a person who has a
           mental disability that prevents the person
           from understanding his legal rights or
           commencing a legal action at the time the
           cause of action or right or title accrues,
           the person may commence the action . . . ,
           within   the  time   as  limited  by   those
           statutes, after . . . having the mental
           capacity to pursue the person's lawful
           rights.

           [N.J.S.A. 2A:14-21.]

     The version of this statute in effect at the time of the

accident   referred   to   the   person      being   "insane"    rather   than

having "a mental disability."          See L. 1951, c. 344.          However,

the term "insane" had been interpreted in a way that corresponds

to the modern term "incapacity."


10
  Tolling would also be applicable to MidState as an alternate
ground for reinstating the complaint against that defendant.
Consequently, to protect its further appeal rights, MidState
shall be permitted to fully participate in the hearing on
remand.



                                      20                             A-1955-13T2
       For example, in Sobin v. M. Frisch & Sons, 108 N.J. Super.

99 (App. Div. 1969), certif. denied, 55 N.J. 448 (1970), we held

that   a   tree     trimmer    who    suffered       a    concussion       in     a   fall,

resulting in an extended period of unconsciousness, was thereby

rendered "insane" for purposes of the statute.                       "Manifestly, the

aim of N.J.S.A. 2A:14-21 is to relieve from the strict time

restrictions       any    person     who    actually      lacks     the    ability       and

capacity,     due    to    mental     affliction,         to     pursue    his        lawful

rights."     Id. at 104.       We found that because the plaintiff "was

in a mental condition which prevented him from knowing, and, a

fortiori, understanding his legal rights" he was "insane" within

the meaning of the statute.               Ibid.; See also Kyle v. Green Acres

at Verona, Inc., 44 N.J. 100, 113 (1965) (defining insanity as

"such a condition of mental derangement as actually prevents the

sufferer    from     understanding         his    legal    rights     or    instituting

legal action").          Both lay and expert testimony is admissible to

establish    that    a    plaintiff        is    incapacitated      for    purposes       of

N.J.S.A. 2A:14-21.            Estate of Nicolas v. Ocean Plaza Condo.

Ass'n,     Inc.,    388    N.J.     Super.       571,     582     (App.    Div.       2006).

Therefore,    the    testimony       of    plaintiff's          brother,   as     well    as

expert testimony, is admissible on that issue.

       To obtain the benefit of N.J.S.A. 2A:14-21, ordinarily a

plaintiff must be incapacitated at the time the cause of action




                                            21                                    A-1955-13T2
arises.    However, there is an equitable exception where the

accident itself causes the plaintiff to become incapacitated at

a later time.       "Thus, a defendant whose negligent act brings

about   plaintiff's     insanity   should     not     be    permitted    to     cloak

himself with the protective garb of the statute of limitations."

Kyle, supra, 44 N.J. at 111.          The trial court, sitting without a

jury, should determine whether a plaintiff was incapacitated on

or after the date of the accident and whether the incapacity

resulted   from    defendant's     acts.11      Id.    at    112.       To    ensure

fairness   to     the   defendant,    the     court    must     also    determine

"whether plaintiff's suit was started within a reasonable time

after   restoration     of   sanity   or     after    the    appointment        of    a

guardian or committee who knew or should have known of the cause

of action."     Ibid.

     In applying equitable principles concerning the statute of

limitations, courts have emphasized

           that the effect of a statute of limitations
           is   to   deny   access   to   our   courts.
           Unswerving,   mechanistic   application   of
           statutes of limitations would at times
           "inflict obvious and unnecessary harm upon

11
   We infer that this standard requires the judge to determine
whether the plaintiff's later incapacity resulted from the
accident, as opposed to from some other cause.      We do not
construe the standard as requiring the judge to decide whether
the defendant was liable for the accident.   To hold otherwise
would require, in essence, a trial of the underlying tort suit
before the case could go forward.



                                      22                                     A-1955-13T2
            individual plaintiffs" without materially
            advancing the objectives they are designed
            to serve.

            [Jones    v. Jones, 242 N.J. Super. 195, 203
            (App.    Div.), certif. denied, 122 N.J. 418
            (1990)    (quoting Galligan v. Westfield Centre
            Servs.   Inc., 82 N.J. 188, 192 (1980)).]

Where there are material factual issues concerning a tolling

claim,     particularly      issues    concerning       a    plaintiff's     mental

state, the court should hold an evidentiary hearing.                         Id. at

202, 206; Estate of Nicolas, supra, 388 N.J. Super. at 582-83.

      As previously noted, in deciding a summary judgment motion,

the court must give the non-moving party the benefit of all

favorable inferences that can be drawn from the evidence.                         See

Agurto v. Guhr, 381 N.J. Super. 519, 522 (App. Div. 2005).                          We

conclude     the    second    judge    erred       in   ignoring      the   legally

competent     lay    and     medical      testimony         as   to    plaintiff's

incapacity,    and    instead    basing      the    decision     on   the   unsworn

representation of plaintiff's counsel in the friendly hearing.

At most, that representation, plus the brother's brief testimony

at the same hearing, created a material dispute of fact as to

plaintiff's mental capacity.           Viewed in the light most favorable

to plaintiff, the motion evidence was sufficient to establish

that plaintiff was incapacitated for purposes of N.J.S.A. 2A:14-

21.




                                        23                                  A-1955-13T2
      Further, the doctrine of judicial estoppel was not properly

applied to the attorney's unsworn representation in the friendly

hearing,     which       was     a    non-adversarial           proceeding          intended    to

protect the interests of plaintiff and his minor daughter.                                     See

Impink ex rel. Baldi v. Reynes, 396 N.J. Super. 553, 562 (App.

Div. 2007).         "[J]udicial estoppel is an 'extraordinary remedy,'

which      should       be    invoked      only     'when       a     party's       inconsistent

behavior will otherwise result in a miscarriage of justice.'"

Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J. Super.

596, 608 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001)

(citation omitted).               Depriving this severely injured plaintiff

of   his    day     in       court,   due    to     his    former       attorney's      unsworn

representations made in a friendly hearing, would not serve the

interests of justice or the purpose of the doctrine.

      We also cannot agree that either the signing of the POA or

the friendly hearing vitiated the tolling of the statute of

limitations, if plaintiff was in fact rendered mentally disabled

by the accident.               We acknowledge language in Kyle stating that

in applying the equitable exception for a plaintiff whose later

incapacity        was    caused       by    defendants'         actions,        a    court   must

consider      "whether          plaintiff's         suit        was     started       within     a

reasonable        time        after   restoration          of       sanity   or      after     the

appointment of a guardian or committee who knew or should have




                                               24                                       A-1955-13T2
known of the cause of action."             Kyle, supra, 44 N.J. at 112

(emphasis added).        Judge Ciuffani did not appoint a guardian of

plaintiff's person or property, or a guardian ad litem, during

the friendly hearing.         Moreover, it appeared that the primary

purpose of the friendly settlement was to determine the fairness

of the settlement with respect to plaintiff's minor daughter,

who was giving up any right she may have had to file a lawsuit

against the driver in return for a portion of the settlement.

      Nor did the friendly hearing result from litigation against

the driver.       Rather, it resulted from the insurance company's

voluntary offer of its entire policy.           Hence, the second judge's

reasoning, that the limitations period was not tolled because

plaintiff had an attorney "working for him," is not persuasive

to us.     The friendly hearing was not the equivalent of the later

personal injury suit.         The record does not indicate how, when,

or   by   whom    the   original   attorney   was     retained   to    file   the

lawsuit against MidState.          However, a guardian ad litem was not

appointed for plaintiff until Judge Kravarik entered the order

on November 4, 2011.

      In Unkert, we held that the appointment of a guardian did

not vitiate an incapacitated plaintiff's right to the tolling

provided     by    N.J.S.A.    2A:14-21,      where     the   plaintiff       was

incapacitated contemporaneously with the accident.                    Supra, 301




                                      25                                A-1955-13T2
N.J.   Super.   at   590-93.   Likewise,   we   held    in   Nicholas:   "It

follows . . . that if the tolling provision is not terminated on

the appointment of a guardian for an incompetent person, the

tolling provision is not terminated for a person who acts as a

caretaker for an insane person, without formal appointment as a

guardian."      Supra, 388 N.J. Super. at 584.         Unkert concerned a

plaintiff who was rendered incapacitated at the moment of the

accident, rather than at a later time as happened in Kyle.                In

Nicholas, the plaintiff already suffered from dementia when her

cause of action arose.

       In this case, it is premature even to decide whether Kyle

or Unkert applies, because the record is incomplete.              Further,

depending on the facts found after a N.J.R.E. 104 hearing, it

may not matter whether plaintiff became instantly incapacitated

when the accident occurred, or whether he became incapacitated

later that day or two days later.          Even if plaintiff signed a

durable POA in favor of his brother, it is not clear for what

purpose plaintiff signed the POA, if in fact he signed it at

all.    It is not clear whether he had sufficient mental capacity

when he signed the POA to understand that he was authorizing his

brother to file lawsuits on his behalf, or whether the two of

them believed plaintiff was only signing consent for the brother




                                   26                              A-1955-13T2
to make medical decisions for him.12             See Kisselbach v. County of

Camden, 271 N.J. Super. 558, 564-66 (App. Div. 1994).

      Given      the   other    mistakes       made   by   plaintiff's     former

attorney, we have no confidence that plaintiff or his brother

were properly counseled as to the purpose of the POA or that

plaintiff, who had suffered massive injuries including paralysis

and brain damage, was in any condition to understand the rights

he was giving his brother under the broad wording of the POA.

Finally,    as    Maser's      counsel    candidly    conceded      at   the   oral

argument of this appeal, there is no legally competent evidence

of   any   prejudice     from    the     delay   in   filing   or    serving    the

complaint against Maser.

      Reversed and remanded.           We do not retain jurisdiction.




12
   As we have recognized in another context, there can be
gradations of incapacity, and a person who is incapable of
making some life decisions may be capable of making other
decisions. See In re M.R., 135 N.J. 155, 169 (1994). Hence, a
person who is gravely injured, in intractable pain, and about to
be placed into a medical coma, may be capable of understanding
that he needs a relative to make medical decisions for him but
may have no ability to focus on or make informed decisions about
who should manage his property interests.



                                          27                              A-1955-13T2
