SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1709-21 

ALEXA BAEZ ZUCCO and 

ENZO ZUCCO, her spouse, 

 Plaintiffs-Appellants, 

v.

WALGREEN EASTERN CO., 

INC., NUNNO & NUNNO, PTR. 

LLC, BOROUGH OF LODI, 

COUNTY OF BERGEN, STATE 

OF NEW JERSEY, 

 Defendants, 

and 

MERCER STREET LLC, 

 Defendant-Respondent. 

 

Argued October 10, 2023 – Decided November 16, 2023 

Before Judges Sabatino and Marczyk. 

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-5482-19.

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-1709-21

Grace Elizabeth Robol argued the cause for appellants 

(Davis Saperstein & Salomon PC, attorneys; Lisa Ann

Lehrer, of counsel and on the briefs; Grace Elizabeth 

Robol, on the brief).

Edward Richard Nicholson argued the cause for 

respondent (Schiavetti, Corgan, DiEdwards, Weinberg

& Nicholson LLP, attorneys; William Daniel Buckley,

on the brief). 

PER CURIAM 

This appeal involves the trial court's analysis of Rule 4:26-4 and Rule 4:9-

3 in the context of a personal injury action. Plaintiffs, Alexa Baez-Zucco and 

her husband, Enzo Zucco, appeal the trial court's September 10, 2021 order 

granting Mercer Street, LLC summary judgment and the January 18, 2022 order 

denying plaintiffs' motion for reconsideration. Following our review of the 

record and the applicable legal principles, we affirm. 

I.

 On May 23, 2018, Baez-Zucco was walking in the parking area at a 

Walgreens store in Lodi, which was adjacent to other commercial businesses, 

when she slipped on loose gravel and rolled her ankle due to a surface depression 

in the parking lot pavement. Police responded to the scene, completed an 

investigation report, and identified the location of the accident as 20 Arnot Street 
3 A-1709-21

in Lodi.1 The property at 20 Arnot Street was owned by Walgreen Eastern, Co. 

Inc. 

 Plaintiffs retained counsel shortly after the incident, and on June 28, 2018, 

plaintiffs and their engineering expert Kelly-Ann Kimiecik, P.E., visited the 

scene of the fall. Kimiecik's July 7, 2018 report2 addressed to plaintiffs' law 

firm indicates the incident occurred as plaintiff was walking toward Walgreens 

"between the parking lot spaces and the adjacent building."3 Kimiecik opined 

the depression in the asphalt was caused by "water surface runoff from the 

adjacent building['s] downspout" coupled with poorly compacted subgrade and 

"freeze thaw cycles" which caused the pavement to crack. 

 While at the inspection of the fall site, Kimiecik encountered Tracie 

Nunno-D'Amico. Kimiecik and Nunno-D'Amico were together earlier that day 

at a different site inspection for one of Nunno-D'Amico's cases. NunnoD'Amico is an attorney. Kimiecik informed Nunno-D'Amico there had been a 

1

 A central issue in this case concerns the ownership of the portion of the parking 

lot where plaintiff fell and surrounding properties. 

2

 Kimiecik prepared two reports. The first was dated July 7, 2018. The second 

report, dated February 4, 2021, was submitted in support of plaintiffs' motion 

for reconsideration. 

3

 The adjacent building—2 Mercer Street—is owned by Mercer Street, LLC. 
4 A-1709-21

fall at Walgreens, and she was performing an inspection. Nunno-D'Amico 

informed Kimiecik that her family "held ownership" of property in the area. 

However, Kimiecik notes in her February 4, 2021 report she "did not indicate 

the specific location of . . . plaintiff's incident" to Nunno-D'Amico.4 Kimiecik 

reported this encounter with Nunno-D'Amico later that day to plaintiffs' law 

firm. 

A year later, in July 2019, plaintiffs filed a complaint against defendants, 

Walgreen Eastern, Co., Inc., Nunno & Nunno PTR LLC ("Nunno & Nunno") a 

real estate holding company for property located at 2 Arnot Street, the Borough 

of Lodi, the County of Bergen, the State of New Jersey, and other fictitious 

parties.5 Although plaintiffs named the Nunno & Nunno entity as a defendant, 

4

 Nunno-D'Amico testified at her deposition Kimiecik advised her plaintiff's 

fall occurred in the Walgreens parking lot. Nunno-D'Amico was concerned 

because she had already retained Kimiecik, and she did not want there to be a 

conflict because if plaintiff fell on the "other property" (2 Mercer Street, owned 

by Mercer Street, LLC), there could be a conflict because her parents owned that 

property and her father owned the law firm that retained Kimiecik in the case 

Nunno-D'Amico and Kimiecik were working on together earlier that day. 

5

 Stipulations of dismissal were subsequently filed as to defendants, County of 

Bergen and the Borough of Lodi. The State of New Jersey was granted summary 

judgment. 
5 A-1709-21

the true owners of the building with the downspout referenced in Kimiecik's 

report was Mercer Street, LLC.

6

 Thereafter, the parties engaged in discovery. 

William Nunno answered plaintiffs' interrogatories on behalf of Nunno & 

Nunno. Plaintiffs assert Nunno & Nunno's responses to interrogatories were 

inaccurate insofar as it responded it had no knowledge of Baez-Zucco's fall 

despite Nunno-D'Amico's encounter with Kimiecik in the parking lot at the time 

of the inspection. Further, plaintiffs contend Nunno & Nunno did not disclose 

the location of plaintiff's fall was on a different property owned by a different 

Nunno family holding company. 

Nunno-D'Amico was deposed on August 26, 2020. At her deposition, 

plaintiffs assert they learned for the first time Mercer Street, LLC owned the 2 

Mercer Street property in the area where plaintiff fell. Plaintiffs subsequently 

moved for and obtained leave to amend the complaint to name Mercer Street, 

LLC as a defendant. At the close of discovery, Mercer Street, LLC moved for 

summary judgment based on plaintiffs' failure to comply with the statute of 

6

 The principals of Mercer Street, LLC are Kathy Nunno and William Nunno 

alone. The principals of Nunno & Nunno are Kathy Nunno, William Nunno, 

Tracie Nunno-D'Amico, Lois Nunno, and Alisa Nunno DiChiara. 
6 A-1709-21

limitations. The trial court, as discussed more fully below, granted the motion, 

and denied plaintiffs' motion for reconsideration. 

II. 

 Plaintiffs contend Mercer Street, LLC was timely joined pursuant to Rule 

4:26-4 and that their claims relate back to the date of the original complaint and 

should not be barred by the statute of limitations under Rule 4:9-3. More 

specifically, plaintiffs assert they "did not know the identity of the exact Nunno 

entity responsible [for the] area of the fall prior to the defendant property owners 

advising of same." Plaintiffs further allege Nunno & Nunno and Mercer Street, 

LLC were the "same people," and despite this, Nunno & Nunno never identified 

the proper owner of the relevant property in its answers to interrogatories. 

 Defendant counters plaintiffs were aware of the building with the 

downspout that purportedly caused the dangerous condition, and there is no 

indication plaintiffs had difficulty in determining the address of the building 

adjacent to the parking lot where the fall occurred. Defendant further argues 

plaintiffs' expert reports, which described the dangerous downspout on the 

adjacent building to Walgreens, "illustrate plaintiff[s'] lack of diligence in 

searching for the owner of the site of the accident." 
7 A-1709-21

We review a grant of summary judgment by applying the same legal 

standard as the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015). We 

must determine whether there is a "genuine issue as to any material fact" when 

the evidence is "viewed in the light most favorable to the non-moving party." 

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014) (first quoting 

Rule 4:46-2(c); and then quoting Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 540 (1995)). The "trial court's interpretation of the law and the legal 

consequences that flow from established facts are not entitled to any special 

deference" and are reviewed de novo. Est. of Hanges v. Metro. Prop. & Cas. 

Ins. Co., 202 N.J. 369, 382-83 (2010). Our review of an order dismissing a 

complaint as barred by the statute of limitations is also de novo. See Est. of 

Hainthaler v. Zurich Com. Ins., 387 N.J. Super. 318, 325 (App. Div. 2006). We 

review a trial court's decision to grant or deny an ensuing motion for 

reconsideration for an abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 

374, 389 (App. Div. 1996). 

 N.J.S.A. 2A:14-2(a) requires an action for personal injuries to be filed 

within two years after the accrual of the cause of action.7 The principal 

7

 The parties and the trial court agreed the two-year statute of limitation in this 

matter was tolled for fifty-six days "due to the pandemic of COVID-19" and 
8 A-1709-21

consideration underlying the enactment of statutes of limitations is one of 

fairness to defendants. Lopez v. Swyer, 62 N.J. 267, 274 (1973). Still, our 

courts also recognize the significant policy interest favoring the resolution of 

claims on their merits. Viviano v. CBS, Inc., 101 N.J. 538, 547-49 (1986) 

(noting that "[j]ustice impels strongly towards affording the plaintiffs their day 

in court on the merits of their claim" (quoting Farrell v. Votator Div. of 

Chemetron Corp., 62 N.J. 111, 122 (1973))). Therefore, certain procedural rules 

aim at balancing these competing interests. 

One of those rules is the fictitious pleading rule, Rule 4:26-4, which 

provides in pertinent part: 

In any action, irrespective of the amount in controversy, 

other than an action governed by R. 4:4-5 (affecting 

specific property or a res), if the defendant's true name 

is unknown to the plaintiff, process may issue against 

the defendant under a fictitious name, stating it to be 

fictitious and adding an appropriate description 

sufficient for identification. 

[R. 4:26-4.]

plaintiffs had until July 18, 2020, to file their complaint. We do not agree with 

their assumption, since we previously concluded the Supreme Court did not toll 

the statute of limitations in its June 11, 2020 Fourth Omnibus Order. Rather, 

we noted, "the time period . . . [from] March 16, 2020, through May 10, 2020, 

was deemed a legal holiday pursuant to the Court's constitutional rule-making 

authority." See Barron v. Gersten, 472 N.J. Super. 572, 580 (App. Div. 2022). 

Regardless, this does not impact our opinion as plaintiffs' amended complaint 

was filed even beyond this date. 
9 A-1709-21

Our Supreme Court has construed Rule 4:26-4 to allow "a plaintiff who institutes 

a timely action against a fictitious defendant to amend the complaint after the 

expiration of the statute of limitations to identify the true defendant." Viviano, 

101 N.J. at 548. When this procedure is properly used, "an amended complaint 

identifying the defendant by its true name relates back to the time of filing of 

the original complaint . . . ." Baez v. Paulo, 453 N.J. Super. 422, 437 (App. Div. 

2018) (quoting Viviano, 101 N.J. at 548). 

Although the fictitious pleading rule allows a party to amend its complaint 

after the expiration of the statute of limitations, "case law has emphasized the 

need for plaintiffs and their counsel to act with due diligence in attempting to 

identify and sue responsible parties within the statute of limitations period." Id. 

at 438; see, e.g., Matynska v. Fried, 175 N.J. 51, 52-54 (2002); Claypotch v. 

Heller, Inc., 360 N.J. Super. 472, 479-80 (App. Div. 2003). Simply put, "Rule 

4:26-4 may only be used by a plaintiff 'if a defendant's true name cannot be 

ascertained by the exercise of due diligence prior to filing the complaint.'" Baez, 

453 N.J. Super. at 438 (quoting Claypotch, 360 N.J. Super. at 479-80 ("To be 

entitled to the benefit of the 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.")).
10 A-1709-21

As we stated in Baez, a plaintiff must satisfy two levels of diligence to be 

accorded the tolling benefits of the rule: 

First, a plaintiff must exercise due diligence in 

endeavoring to identify the responsible defendants 

before filing the original complaint naming John Doe 

parties. Second, a plaintiff must act with due diligence 

in taking prompt steps to substitute the defendant's true 

name, after becoming aware of that defendant's 

identity. 

[453 N.J. Super. at 439 (citations omitted).] 

 Here, in addressing plaintiffs' arguments under Rule 4:26–4, the trial court 

noted, 

[p]laintiff did not demonstrate diligent pre-suit effort to 

investigate and identify the owner of 2 Mercer Street 

. . . . The factual record shows an absence of diligent 

effort. At oral argument counsel represented the firm 

had performed a property tax search using the Walgreen 

address and that search showed Nunno & Nunno as the

owner of the Walgreen premises, and that is why that 

entity was sued. (None of that was in the paper record 

for the summary judgment motion. Further discussion 

at oral argument suggested the search disclosing Nunno 

& Nunno as a property owner . . . for the 2 Arnot Street 

address, while the search of the Walgreen store address, 

20 Arnot Street, identified Walgreen as the owner of 

that property.) Nothing was offered to demonstrate an 

effort to identify the address of the building on whose 

property plaintiff claimed she fell (2 Mercer Street), nor 

the owner of that building (Mercer Street, LLC). 
11 A-1709-21

The court further noted plaintiffs' expert reported shortly after the accident 

that Baez-Zucco had reported to her she was walking in an area adjacent to the 

parking lot between the parking lot and the adjacent building. The expert also 

noted runoff from an adjacent building contributed to the cause of the accident. 

The court concluded plaintiffs' counsel was aware that Walgreens may not own 

the walkway where plaintiff fell, and the downspout from an adjacent property 

potentially caused the asphalt defect. The court stated: 

[p]laintiff provided no information to suggest any effort 

was made to identify the owner of 2 Mercer Street . . . 

although plaintiff, her expert, and counsel knew the 

alleged location of her fall before the lawsuit was filed. 

The court is hard-pressed to accept that as the diligence 

required to avail oneself of the fictitious party rule . . . . 

 We find no error in the court's analysis. Here, five weeks after the 

incident, plaintiffs' engineer inspected the property. Plaintiffs' counsel received 

Kimiecik's report—long before the filing of the complaint and the running of 

the statute of limitations—regarding the downspout issue on the adjacent 

property that caused or contributed to the dangerous asphalt depression that led 

to Baez-Zucco's fall. A plaintiff cannot employ the fictitious party rule after 

expiration of the statute of limitations unless it can demonstrate a party's 

identification was not readily discoverable sooner. Here, there was no such 

showing. There is nothing in the record to suggest plaintiffs conducted a title 
12 A-1709-21

search or tax record search of the property adjacent to 20 Arnot Street where 

Walgreens was located. That is, plaintiffs did not utilize the information derived 

from Kimiecik's report to ascertain, with due diligence, the owner of 2 Mercer 

Street. Apparently, there was no other visit to the location of the fall to ascertain 

the address or owners of the property. There is also no indication a tax search 

or title search was conducted of 2 Mercer Street in order to identify Mercer 

Street, LLC. Further, there is also no indication in the record plaintiffs served 

interrogatories or requests for admissions on Nunno & Nunno with photos of the 

building with the downspout requesting information as to who owned the 

building. 

 Plaintiffs assert they "did not know the identity of the exact Nunno entity 

responsible [for the] area of the fall prior to the defendant property owners 

advising of same." We are unpersuaded by this argument. The issue here was 

not which Nunno entity to sue, but rather a matter of identifying the property 

owner potentially liable for the fall, specifically 2 Mercer Street. Kimiecik's 

report specifically identified the alleged dangerous condition, the downspout on 

the building adjacent to the Walgreens parking lot near the area of the fall. The 

expert acknowledged that Nunno-D'Amico advised her family owned one of the 

nearby buildings, yet the record is bereft of any specific efforts to identify the 
13 A-1709-21

owner of the building with the downspout that purportedly contributed to the 

depression on the pavement which caused the fall. Instead, it appears there was 

only a general search of nearby properties owned by members of the Nunno 

family. Nunno & Nunno, who was named as a defendant, was located at 2 Arnot 

Street, which was not the building with the downspout at issue. Plaintiffs' 

counsel notes, "Kimiecik provided plaintiffs with a deed and property detail for 

2 Arnot Street" following her discussion with Nunno-D'Amico. However, that 

is not the property with the alleged dangerous downspout condition nor is there 

any discussion of what efforts were made to identify the address of that property. 

 Plaintiffs assert they conducted a corporate search to "identify the Nunno 

entity that owned the subject property" following Kimiecik's inspection. 

However, plaintiffs do not identify the "subject property" for which they 

searched. It is clear they did not search for the owner of the property (2 Mercer 

Street) identified by Kimiecik with the downspout that allegedly caused the 

asphalt depression. Rather, plaintiffs apparently searched instead for the owner 

of 2 Arnot Street, which is not adjacent to the fall at issue. That is, plaintiffs 

did not conduct a search focused upon the property described in their expert 

report. After the engineer visited the property, there is no indication of any 

further visits to the location of the fall by plaintiffs' representatives to determine 
14 A-1709-21

the owners of the adjacent properties. Nor was there any timely effort to identify 

what property Nunno D'Amico was discussing when she advised Kimiecik that 

her family "held ownership" of property in the area of the fall. We conclude 

plaintiffs did not satisfy the requirement of Rule 4:26-4. 

Turning to the trial court's discussion of Rule 4:9-3, we note the relation 

back rule provides an independent basis to permit the filing of an amended 

complaint under the principle of fundamental fairness. R. 4:9-3. A plaintiff 

adding a new party after the expiration of a statute of limitations must establish: 

(1) the claim asserted in the amended complaint arose 

out of the conduct, transaction, or occurrence alleged or 

sought to be alleged in the original complaint; (2) the 

new defendant had sufficient notice of the institution of 

the action [prior to the expiration of the statute of 

limitations] not to be prejudiced in maintaining his or 

her defense; and (3) the new defendant knew or should 

have known that, but for the misidentification of the 

proper party, the action would have been brought 

against him or her. 

[Viviano, 101 N.J. at 553 (citing Smelkinson v. Ethel 

& Mac Corp., 178 N.J. Super. 465, 471 (App. Div. 

1981)).] 

In addressing plaintiffs' relation back argument under Rule 4:9-3, the trial 

judge noted: 

Similarly, the two defendant LLC's are separate legal 

entities, with separate insurance coverage. Other than 

establishing that William and Kathy Nunno are 
15 A-1709-21

members of both LLC's, plaintiff has not offered any 

facts that would support a finding that Mercer Street 

LLC should have known, before it was sued, that 

plaintiff would have sued it instead of Nunno & Nunno 

but for a mistake in the identity of the correct party. (R.

4:9-3). 

The court observed that Nunno & Nunno certified, in answering interrogatories, 

it did not own the premises where the accident was alleged to have occurred and 

that "upon information and belief" Walgreens owned the parking lot. Recall, 

plaintiffs' complaint identified the location of the fall as a "parking lot abutting 

the premises, owned . . . by . . .Walgreen[s] . . . Nunno & Nunno . . . at or near 

20 Arnot Street . . . ." The court noted the complaint did not give notice that 

plaintiff fell on a walkway in an area near 2 Mercer Street. While plaintiffs 

contend William Nunno withheld the identity of the true owner of Mercer Street, 

LLC, the court noted plaintiff did not identify an interrogatory that requested 

that information. 

 We are unpersuaded by plaintiffs' arguments and affirm the trial court's 

decision concluding plaintiffs failed to demonstrate they were entitled to relief 

under Rule 4:9-3. Here, there was a question as to the owner of the property 
16 A-1709-21

where the fall actually occurred throughout this case.8 Plaintiffs' complaint 

identified the accident as occurring "at or near" 20 Arnot Street, the address of 

Walgreens. Although Nunno-D'Amico encountered Kimiecik in the parking lot 

during her inspection, Kimiecik noted in her report she never advised NunnoD'Amico about "the specific location" of plaintiff's fall. Therefore, we agree 

with the trial court there was no indication in the record that "Mercer Street LLC 

should have known, before it was sued, that plaintiff would have sued it instead 

of Nunno & Nunno but for a mistake in the identity of the correct party." 

8

 When Nunno-D'Amico was eventually deposed, she identified 2 Mercer Street 

as belonging to Mercer Street, LLC, but testified plaintiff fell on an area owned 

by Walgreens based on a photo presented to her at the deposition depicting 

plaintiff in the area of the fall. Nunno-D'Amico was aware of the suit against 

the Nunno & Nunno entity as she testified she attempted to twice call plaintiffs' 

law firm to advise Nunno & Nunno was not the owner of the parking lot where 

plaintiff fell. She also testified Nunno & Nunno's insurance carrier was 

considering denying coverage because the accident did not occur on Nunno & 

Nunno's property. Although the better practice would have been for NunnoD'Amico to have sent a letter or made some other effort to notify plaintiffs' firm, 

Nunno & Nunno's answers to interrogatories clearly stated it did not own the 

property where the fall occurred. Furthermore, the failure to identify Mercer 

Street, LLC stemmed from plaintiffs' failure to follow up on the information

voluntarily provided by Nunno-D'Amico to Kimiecik and, more importantly, the 

failure to further investigate Kimiecik's independent observation concerning the 

downspout on 2 Mercer Street that caused the defect where plaintiff fell. 
17 A-1709-21

 To the extent we have not specifically addressed any of plaintiffs' 

remaining arguments, we conclude they lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E). 

 Affirmed.