SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2628-18T4

STEVEN AGYARKWA,

Plaintiff-Appellant,

v.

ALARIS HEALTHCARE

AT HAMILTON PARK,

Defendant-Respondent.

___________________________

Argued January 27, 2020 – Decided February 20, 2020

Before Judges Sumners, Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-1555-16.

David Robert Cohen argued the cause for appellant.

Thomas J. Pyle argued the cause for respondent 

(MacNeill, O'Neill & Riveles, LLC, attorneys; Thomas 

J. Pyle, of counsel and on the brief; Ethan Lillianthal, 

on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Plaintiff Steven Agyarkwa appeals from a January 11, 2019 Law Division 

order denying his motion to reinstate his complaint that had been 

administratively dismissed without prejudice for failure to prosecute pursuant to 

Rule 1:13-7(a). For the following reasons, we reverse and remand. 

Plaintiff was a resident at defendant Alaris Healthcare at Hamilton Park's 

nursing home facility (Alaris) from January 7, 2014 to April 16, 2014, with an 

admitting diagnosis of quadriplegia and quadriparesis. Plaintiff is profoundly 

disabled, incapable of independent living, and unable to sign his name due to 

his condition. 

While at Alaris, braces were placed on his knees to "straighten them out." 

The braces were removed three days later. The braces allegedly caused him to 

suffer significant injuries resulting in a three-week hospitalization and the need 

for a home health aide after his hospital discharge. 

At some point in 2014, plaintiff retained the law firm of Jacoby & Myers 

to pursue professional negligence claims against Alaris. In October 2014, 

Jacoby & Myers requested medical records from Alaris. On December 5, 2014, 

Alaris mailed a copy plaintiff's medical records to Jacoby & Meyers. On 

December 22, 2014, a case manager at Jacoby & Myers wrote to Alaris advising 

it that the firm was retained to represent plaintiff relating to his personal injuries
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and requesting the letter be turned over to Alaris' liability carrier. On April 21, 

2015, Jacoby & Myers sent a second notice of its December 22, 2014 letter to 

Alaris. It is unclear whether Jacoby & Myers had any additional contact with 

Alaris. 

Plaintiff filed a pro se complaint against Alaris on April 13, 2016, three 

days before the two-year statute of limitations was set to expire. The complaint 

was handwritten by plaintiff's niece because of his inability to write. The 

complaint alleged professional negligence.

On October 28, 2016, Civil Case Management sent a written notice to 

plaintiff advising that his complaint had been dismissed without prejudice for 

lack of prosecution pursuant to Rule 1:13-7.

1

 The notice advised plaintiff that 

"[a] formal notice of motion is now required to restore this case to active trial 

status." 

On November 23, 2016, Alaris sent an answer that included separate 

defenses, and a demand for an affidavit of merit to the court for filing. The 

answer was received and filed by the court on November 28, 2016. Two days 

1

 The record on appeal does not indicate the manner of service of the summons 

and complaint on Alaris or the specific reason for the dismissal for failure to 

prosecute. The trial court found the complaint was dismissed because plaintiff 

never filed a proof of service. 
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later, Civil Case Management notified defense counsel in writing that the 

complaint ha[d] been dismissed pursuant to Rule 1:13-7. The notice requested 

defense counsel to "contact [p]laintiff's counsel to submit order restoring case." 

On December 8, 2016, defense counsel wrote to plaintiff confirming "that the 

case had been dismissed for lack of prosecution pursuant to New Jersey Court 

Rule 1:13-7." The letter advised "that it would be necessary for [plaintiff] to 

have this case restored to the active court calendar before this matter can 

proceed." The letter further advised that if the case was not restored within sixty 

days, counsel would "file a motion seeking to dismiss the case with prejudice." 

Plaintiff did not respond to the letter. 

Plaintiff ultimately retained new counsel in late October or early 

November 2018 and filed a motion to restore the complaint and to compel 

production of records on November 14, 2018. Alaris opposed the motion and 

cross-moved to dismiss the complaint for failure to provide an affidavit of merit. 

On January 11, 2019, the motion court heard oral argument and issued an order 

and oral decision denying both motions. 

In its oral decision, the trial court noted "a complaint was timely filed, the 

records were provided, records were forwarded, a complaint was served, 

everything was done except a reinstatement of the complaint." Recognizing that 
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plaintiff was pro se when the complaint was drafted and filed, the court 

explained that pro se plaintiffs are "bound by the same court rules as an 

attorney." The court concluded that the failure to restore the complaint was 

"fatal to reinstating this case." 

The court stated the standard for reinstatement is conjunctive. In order to 

deny reinstatement, "[t]he court must find fault by the plaintiff and prejudice to 

the defendant." The court concluded plaintiff was at fault by causing the delay. 

The court noted the complaint would have been restored had plaintiff filed a 

timely motion to reinstate supported by "a one paragraph certification." 

The court did not accept Alaris' argument that a registered nurse was now 

unavailable because she is no longer employed by Alaris. The court thus 

concluded employee turnover did not create prejudice. However, the court 

found allowing reinstatement would prejudice Alaris by affording plaintiff 

additional time to obtain an affidavit of merit. The court noted the Legislature 

imposed a 120-day time limit for serving an affidavit of merit in professional 

negligence cases. See N.J.S.A. 2A:53A-27. The court concluded that the delay 

had "taken away [Alaris'] ability to assert a defense they would have had and it 

would have been 120 days from November 30." 
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This appeal followed. On March 1, 2019, the motion court issued a 

subsequent fifteen-page amplification of its oral decision pursuant to Rule 2:5-

1(b). The court noted plaintiff "is almost entirely incapable of independent 

movement" and "unable to handwrite his complaint." 

Regarding plaintiff's fault, the court stated:

Plaintiff retained counsel in October of 2014. No 

information was provided to the court as to why counsel 

at Jacoby & Myers did not file a complaint. Plaintiff 

filed his complaint pro se on April 13, 2016. Plaintiff 

did not contest that he received a notice from the court, 

stating that the complaint was dismissed on October 28, 

2016, and a letter from [d]efense counsel dated 

December 8, 2016, stating that [p]laintiff would have to 

file a motion to reinstate in order to prosecute his claim. 

Yet, [p]laintiff failed to take any steps to advance this 

case until November of 2018 – thirty-one months after 

filing the complaint and over two years after the 

complaint was dismissed. Despite [p]laintiff's physical 

disabilities, [p]laintiff did not set forth any mental 

disability that would prevent him from understanding 

what the court notices meant or what was needed to file 

suit against [d]efendant. On the other hand, [p]laintiff 

showed great ability to prosecute his claim – he retained 

counsel at Jacoby & Myers back in 2014, then filed his 

own pro se complaint three days before the statute of 

limitations expired and (at some point) served it on 

[d]efendant. He went back to Alaris to ask that his 

medical records be sent to his physician, then he 

retained new counsel.

Regarding prejudice to Alaris, the court analogized this case to Czepas v. 

Schenk, 362 N.J. Super. 216 (App. Div. 2003), where the plaintiff's attorney 
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intentionally failed to serve the defendants to gain additional time to obtain and 

serve an affidavit of merit. Id. at 219. Here, the trial court found: 

Plaintiff intentionally failed to file this motion to 

restore the complaint, despite two notices that his 

complaint was dismissed, including a notice from 

[d]efense counsel. Plaintiff's failure to prosecute this 

claim effectively expanded the time restraints in the 

Affidavit of Merit statute. See N.J.S.A. 2A:53A-27 

(requiring plaintiff to serve the affidavit of merit within 

60 days following the date of filing of an answer). 

Because [p]laintiff failed to reinstate the complaint, 

[d]fendant[] [was] unable to successfully file an answer 

and begin the clock for when the affidavit of merit was 

required. Thus, [p]laintiff tolled the sixty-day time 

restraint and expanded it to be over two years. Plaintiff 

should not be able to interminably extend the time to 

file an AOM by failing to move to reinstate a complaint 

dismissed for lack of prosecution, thereby prejudicing 

[d]efendant by denying the defense of the statute. 

The court "found that [p]laintiff did not show good cause to reinstate the 

complaint as [p]laintiff was at fault in the delay to reinstate and there would be 

prejudice to [d]efendant." 

On appeal, defendant argues: (1) the motion court erred in failing to 

reinstate the complaint because defendant filed an answer after the 

administrative dismissal; and (2) the motion court erred in failing to reinstate 

the complaint because plaintiff has shown good cause for reinstatement. 
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We review the denial of a motion to reinstate a complaint dismissed for 

lack of prosecution for abuse of discretion. Baskett v. Kwokleung Cheung, 422 

N.J. Super. 377, 382 (App. Div. 2011). An abuse of discretion "arises when a 

decision is 'made without a rational explanation, inexplicably departed from 

established policies, or rested on an impermissible basis.'" Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. I.N.S., 779 

F.2d 1260, 1265 (7th Cir. 1985)).

We review legal issues de novo. Alfano v. BDO Seidman, LLP, 393 N.J. 

Super. 560, 573 (App. Div. 2007). "A trial court's interpretation of the law and 

the legal consequences that flow from established facts are not entitled to any 

special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995) (citations omitted). 

Rule 1:13-7(a) provides in pertinent part:

whenever an action has been pending for four months . 

. . without a required proceeding having been taken[,] . 

. . the court shall issue written notice to the plaintiff 

advising that the action as to any or all defendants will 

be dismissed without prejudice [sixty] days following 

the date of the notice . . . unless, within said period, 

action specified in subsection (c) is taken. 

"The following events constitute required proceedings that must be timely taken 

to avoid the issuance by the court of a written notice of dismissal": (1) filing of 
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a proof of service or acknowledgment of service; (2) filing of an answer; (3) 

entry of a default; or (4) entry of a default judgment. R. 1:13-7(b). However, 

dismissal shall not be entered if certain specified events, including filing a proof 

of service or an answer, occur within four months. R. 1:13-7(c). 

In addition to setting forth grounds for dismissal, Rule 1:13-7(a) provides 

two methods for reinstating a complaint against a single defendant that has been 

dismissed for lack of prosecution. The complaint may be reinstated by "a 

consent order vacating the dismissal and allowing the dismissed defendant to 

file an answer." R. 1:13-7(a). "If the defendant has been properly served but 

declines to execute a consent order, plaintiff shall move on good cause shown 

for vacation of the dismissal." Ibid. 

Although "good cause" is difficult to precisely define, "[i]ts application 

requires the exercise of sound discretion in light of the facts and circumstances 

of the particular case considered in the context of the purposes of the Court Rule 

being applied." Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007)

(quoting Del. Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 

232 (App. Div. 2002)). "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 to the defendant, a motion to restore under the rule 
10 A-2628-18T4

should be viewed with great liberality.'" Giannakopoulos v. Mid State Mall, 438 

N.J. Super. 595, 609 (App. Div. 2014) (quoting Ghandi, 309 N.J. Super. at 197). 

"[Rule] 1:13-7 is an administrative rule designed to clear the docket of 

cases in which plaintiff has failed to perform certain acts." Pressler & Verniero, 

Current N.J. Court Rules, cmt. 1.1 on R. 1:13-7 (2020). Administrative 

dismissals pursuant to Rule 1:13-7(a) are meant to clear to "clear the docket of 

cases that cannot, for various reasons, be prosecuted to completion." Mason v. 

Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989). "Dismissals 

under the rule are 'without prejudice.'" Ghandi, 390 N.J. Super. at 196 (citing 

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)). "Eagerness 

to move cases must defer to our paramount duty to administer justice in the 

individual case." Id. at 198 (quoting Audubon Volunteer Fire Co. No. 1 v. 

Church Const. Co., 206 N.J. Super. 405, 406 (App. Div. 1986)). 

We are also mindful that our court rules 

shall be construed to secure a just determination, 

simplicity in procedure, fairness in administration and 

the elimination of unjustifiable expense and delay. 

Unless otherwise stated, any rule may be relaxed or 
11 A-2628-18T4

dispensed with by the court in which the action is 

pending if adherence to it would result in an injustice. 

[R. 1:1-2(a).] 

We note, however, that pro se litigants are expected to follow the Court 

Rules, just as an attorney. See, e.g., City of Clifton v. Cresthaven Cemetery 

Ass'n, 17 N.J. Super. 362, 364 (App. Div. 1952) (observing that compliance with 

a particular court rule should not be dispensed with when a non-lawyer appears 

pro se). 

Applying these principles to the unique facts of this case, we conclude the 

trial court mistakenly applied its discretion in denying plaintiff's motion to 

reinstate his complaint. 

Plaintiff argues he has demonstrated good cause because he is "profoundly 

disabled," prepared and filed his complaint pro se, and defendant suffered no 

prejudice.2 Coupled with the absence of any evidence in the record that plaintiff 

intentionally delayed the filing of his reinstatement motion to gain a strategic 

advantage by delaying the deadline for serving an affidavit of merit, we agree. 

In general, a decision on the merits is preferred to a disposition on 

procedural grounds. 

2

 Plaintiff also argues that, by filing its answer, Alaris consented to the 

reinstatement of his complaint. We disagree. 
12 A-2628-18T4

Our Court Rules, from their inception, have been 

understood as "a means to the end of obtaining just and 

expeditious determinations between the parties on the 

ultimate merits." Ragusa v. Lau, 119 N.J. 276, 284 

(1990) (quoting Tumarkin v. Friedman, 17 N.J. Super. 

20, 27 (App. Div. 1951)); see also Ponden v. Ponden, 

374 N.J. Super. 1, 9-10 (App. Div. 2004); Tucci v. 

Tropicana Casino & Resort, Inc., 364 N.J. Super. 48, 

53 (App. Div. 2003). As a result, the Supreme Court 

has recognized a "strong preference for adjudication on 

the merits rather than final disposition for procedural 

reasons." Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 

356 (2001) (quoting Mayfield v. Cmty. Med. Assocs., 

P.A., 335 N.J. Super. 198, 207 (App. Div. 2000)).

[Alpha Beauty Distribs., Inc. v. Winn-Dixie Stores, 

Inc., 425 N.J. Super. 94, 102 (App. Div. 2012).]

The trial court denied plaintiff's motion to reinstate for failure to 

demonstrate "good cause" because it found plaintiff was at fault for the delay in 

moving to reinstate and the delay prejudiced Alaris. 

Alaris has not demonstrated that it would experience prejudice if 

plaintiff's complaint was reinstated. Alaris claims it would be prejudiced by the 

significant additional time that plaintiff would gain to serve an affidavit of merit. 

According to Alaris, this undermines its Alaris' ability to enforce its defense of 

lack of a timely affidavit of merit. To the contrary, that defense is preserved.

Upon the complaint's reinstatement, plaintiff will still be subject to the 

requirements of the affidavit of merit statute. Alaris will have the opportunity 
13 A-2628-18T4

to object to plaintiff's affidavit of merit if it does not: (1) meet the time 

limitations for service; (2) include the required opinion that there exists a 

reasonable probability the care rendered fell outside acceptable professional 

standards or treatment practices; or (3) the person executing the affidavit does 

not meet the requirements of N.J.S.A. 2A:53A-41 or have appropriate licensure. 

N.J.S.A. 2A:53A-27. 

The record establishes that plaintiff is profoundly disabled. He is unable 

to move independently and cannot even write his own name. He filed his pro se 

complaint and case information (CIS) statement before the statute of limitations 

expired and served the summons, complaint, and CIS on Alaris in a timely 

fashion. Alaris filed an answer to the complaint in less than four months. 

According to the trial court, the only basis for dismissal was plaintiff's failure 

to file a proof of service in a timely fashion. Alaris has not established that 

plaintiff's delay in moving for reinstatement prejudiced its ability to 

substantively defend the action due to the loss of evidence or witnesses. 

Notably, Rule 1:13-7(a) does not impose a time limitation for moving to 

reinstate in single defendant cases. Although the reinstatement motion was filed 

almost two years after the dismissal, our courts have granted reinstatement in 

cases, absent proof of prejudice to the defendant, where the delay was 
14 A-2628-18T4

significant. See e.g., Giannakopoulos, 438 N.J. Super. at 608-09 (more than one 

year); Baskett, 422 N.J. Super. at 384-85 (thirty-three months); Ghandi, 390 N.J. 

Super. at 195, 197-98 (fifteen months).

Unlike in Czepas, plaintiff did not intentionally delay filing his 

reinstatement motion for strategic reasons. There is no evidence that he waited 

to file the motion to gain additional time to obtain an affidavit of merit. Indeed, 

because the complaint was dismissed before Alaris filed its an answer, the case 

was not scheduled for a Ferreira3conference to resolve any affidavit of merit 

issues. Moreover, the court had not yet implemented "electronic notification of 

the affidavit of merit filing obligation and the Ferreira conference scheduling so 

that courts and parties do not overlook them." Pressler & Verniero, cmt. 5.5.4 

on R. 4:5B-4. Consequently, plaintiff, who was pro se at that point, may well 

have been unaware that he is required to serve an affidavit of merit. 

The purpose of the Affidavit of Merit Statute is to "weed out frivolous 

lawsuits early in the litigation while, at the same time, ensuring that plaintiffs 

with meritorious claims will have their day in court." Ferreira, 178 N.J. at 150 

3

 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). Trial courts 

must conduct "an accelerated case management conference . . . within ninety 

days of the service of an answer in all malpractice actions" to resolve "discovery 

related issues, such as compliance with the Affidavit of Merit statute." Id. at 

154; see R. 4:5B-4(a) (same). 
15 A-2628-18T4

(citing Hubbard v. Reed, 168 N.J. 387 (2001)). This case was dismissed before 

plaintiff was required to serve an affidavit of merit. To be sure, there was no 

consideration of the merits of plaintiff's cause of action, nor could there have 

been at the time the complaint was administratively dismissed. 

In the context of this case, we view the purpose of Rule 1:13-7(a) to be 

distinctly different than the purpose of the Affidavit of Merit Statute. Because 

the case was administratively dismissed before Alaris filed its answer, the 

parties did not engage in discovery. In fact, plaintiff claims he does not even 

possess his complete medical records compiled by Alaris. 

We conclude that "principles of equity and the essential goal of the 

[Affidavit of Merit Statute]—to eliminate frivolous lawsuits—are not advanced 

by dismissing the complaint." Ferreira, 178 N.J. at 153. Instead, we deem 

reinstatement of the complaint, subject to plaintiff meeting the requirements of 

the statute, to be equitable and appropriate. "Plaintiff should not be denied the 

opportunity to have [his] facially valid claim move forward and be addressed on 

its merits." A.T. v. Cohen, 231 N.J. 337, 350 (2017). 

We further conclude that plaintiff established good cause for 

reinstatement of his complaint. The record demonstrates no prejudice to Alaris 

and no ulterior motive on the part of plaintiff. As noted, plaintiff was pro se and 
16 A-2628-18T4

profoundly disabled. Under these unique circumstances, we find that this case 

does not involve the type of fault contemplated by Rule 1:13-7(a).

Reverse and remanded. We do not retain jurisdiction.