SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2357-16T2

SUMAR ABNATHYA and VIMAR MOORE,

Plaintiffs,

v. 

CEZSARI M. MEDLEY and GERALD DEUS,

Defendants.

___________________________________

GERALD DEUS,

Plaintiff-Appellant,

v.

CEZSARI M. MEDLEY and PROGRESSIVE

DRIVE NEW JERSEY INSURANCE COMPANY,

Defendants-Respondents.

____________________________________

Submitted September 25, 2017 – Decided 

Before Judges O'Connor and Vernoia. 

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, Docket 

Nos. L-5738-15 and L-6072-15. 

Law Offices of Karim Arzadi, attorneys for 

appellant (Mr. Arzadi, on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.

October 10, 2017
2 A-2357-16T2

Law Office of Cindy L. Thompson, attorneys for 

respondent Cezsari M. Medley (Melissa A. 

Galante, on the brief).

Kent & McBride, PC, attorneys for respondent 

Progressive Drive New Jersey Insurance Company 

(Robert S. Florke, on the brief).

PER CURIAM

By leave granted, plaintiff Gerald Deus appeals from a 

September 30, 2016 order denying his motion to reinstate his 

complaint and a November 4, 2016 order denying his motion for 

reconsideration. We reverse.

I.

Following an automobile accident Deus claims caused him to 

sustain personal injuries, he filed a complaint on August 28,

2015, asserting a negligence claim against Cezsari M. Medley and 

a breach of contract claim against Deus's personal injury 

protection insurance carrier, Progressive Drive New Jersey 

Insurance Company. On March 11, 2016, the complaint was 

administratively dismissed as to both defendants pursuant to Rule

1:13-7(a) because Deus failed to serve defendants with a summons 

and complaint. Three months later in June 2016, Deus served each 

defendant with a summons and complaint.

In a separate lawsuit, Sumar Abnathya and Vimar Moore claimed 

they were injured in the automobile accident and asserted 

negligence claims against Deus and Medley (the Abnathya matter). 
3 A-2357-16T2

In his capacity as a defendant in the Abnathya matter, Deus was 

represented by an attorney different from the attorney 

representing him as a plaintiff in his action against Medley and 

Progressive. Deus's counsel in the Abnathya matter moved to 

consolidate the two lawsuits. Although Deus's complaint against 

Medley and Progressive had been dismissed, the court entered an 

August 5, 2016 order consolidating the lawsuits for the purpose 

of discovery and trial.

On September 14, 2016, Deus moved to reinstate his complaint 

against Medley and Progressive. In support of the motion, Deus's 

counsel certified that his office was unable to effect service 

upon Medley and Progressive prior to the administrative dismissal. 

Counsel also asserted that defendants had been served in June 2016 

and the discovery period remained open. Counsel's assertions were 

uncontested. Neither Medley nor Progressive opposed Deus's 

motion.

In a September 30, 2016 order, the court denied Deus's motion. 

The order states that "[p]ursuant to R. 1:13-7, [Deus] has not 

presented sufficient evidence for a showing of exceptional 

circumstances for reinstatement beyond [ninety] days of the date 

of dismissal."

Deus filed a motion for reconsideration. Again, Medley and 

Progressive did not oppose the motion. The court denied the motion 
4 A-2357-16T2

in a November 4, 2016 order stating Deus "failed to meet [his] 

burden of presenting sufficient evidence to warrant 

reconsideration under R. 4:49-2." This appeal followed. 

II.

"Our review of an order denying reinstatement of a complaint 

dismissed for lack of prosecution proceeds under an abuse of

discretion standard." Baskett v. Kwokleung Cheung, 422 N.J. Super.

377, 382 (App. Div. 2011) (citations omitted); accord Ghandi v. 

Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007). We are not,

however, bound by the Law Division's legal conclusions or its 

"'interpretation of the law and the legal consequences that flow 

from established facts . . . .'" Alfano v. BDO Seidman, LLP, 393 

N.J. Super. 560, 573 (App. Div. 2007) (quoting Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Rule 1:13-7(a) is "docket-clearing rule that is designed to 

balance the institutional needs of the judiciary against the 

principle that a just result should not be forfeited at the hands 

of an attorney's lack of diligence." Baskett, supra, 422 N.J. 

Super. at 379; see also Mason v. Nabisco Brands, Inc., 233 N.J. 

Super. 263, 267 (App. Div. 1989) (explaining Rule 1:13-7(a) is 

intended to "clear the docket of cases that cannot, for various 

reasons, be prosecuted to completion"). The Rule details the bases 

for an administrative dismissal of a complaint for lack of 
5 A-2357-16T2

prosecution, R. 1:13-7(a), and provides the standards and 

procedure for reinstatement of a complaint that has been 

administratively dismissed:

After dismissal, reinstatement of an action 

against a single defendant may be permitted 

on submission of a consent order vacating the 

dismissal and allowing the dismissed defendant 

to file an answer . . . . 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. In multi-defendant actions in which 

at least one defendant has been properly 

served, the consent order shall be submitted 

within 60 days of the order of dismissal, and 

if not so submitted, a motion for 

reinstatement shall be required. The motion 

shall be granted on good cause shown if filed 

within 90 days of the order of dismissal, and 

thereafter shall be granted only on a showing 

of exceptional circumstances.

[R. 1:13-7(a).]

There is no dispute that Deus filed the motion for 

reinstatement more than ninety days after entry of the March 11,

2016 dismissal order. Nevertheless, Deus first contends the court 

erred by applying the heightened Rule 1:13-7(a) exceptional 

circumstances standard for multi-defendant cases in deciding the 

reinstatement motion. He argues that under the circumstances 

presented, the court should have decided his motion under the 

Rule's good cause standard and that good cause existed for 

reinstatement of the complaint. We agree.
6 A-2357-16T2

The exceptional circumstances standard applies in multidefendant cases "in which at least one defendant has been properly 

served." R. 1:13-7(a). The standard "was intended to avoid delay 

where a case has proceeded against one or more defendants, and the 

plaintiff then seeks to reinstate the complaint against a 

previously-dismissed additional defendant." Giannakopoulos v. Mid 

State Mall, 438 N.J. Super. 595, 609 (App. Div. 2014) certif. 

denied, 221 N.J. 492 (2015); see also Pressler & Verniero, Current 

N.J. Court Rules, comment 1.2 on R. 1:13-7(a) (2017). The 

exceptional circumstances standard therefore applies in multidefendant cases that proceed against a properly served defendant 

prior to the filing of a motion to reinstate a complaint that was 

administratively dismissed against another defendant.1

 

1 The proper service of Medley and Progressive in June 2016 

followed the administrative dismissal of Deus's complaint against 

them. It did not constitute the "proper service" of a defendant 

in a multi-defendant case requiring application of the exceptional 

circumstances standard under Rule 1:13-7. Proper service of Medley 

and Progressive was permitted prior to the filing of the 

reinstatement motion. See Weber v. Mayan Palace Hotel & Resorts,

397 N.J. Super. 257, 264 (App. Div. 2007) (finding the purpose of 

Rule 1:13-7(a) is advanced when a defendant is served with the 

complaint prior to the filing of a reinstatement motion). Rule

1:13-7(a) can only be logically read to require application of the 

exceptional circumstances standard where there is proper service 

of a codefendant against whom the complaint has not been 

administratively dismissed. 
7 A-2357-16T2

Here, there are no defendants in Deus's lawsuit who were 

properly served and participated in the case prior to Deus's filing 

of the reinstatement motion. To the contrary, plaintiff moved to 

reinstate the complaint against the only two named defendants in 

the complaint,

2 Medley and Progressive, both of whom had the 

complaint against them administratively dismissed pursuant to Rule

1:13-7. Therefore, the court's application of the exceptional 

circumstances standard is not supported by the plain language of 

Rule 1:13-7(a), and is inconsistent with the purpose of the

heightened exceptional circumstances standard.

We reject the contentions of Medley and Progressive that the 

exceptional circumstances standard should apply because permitting 

reinstatement of the complaint will substantially delay the 

proceedings in the consolidated case. Again, we are satisfied

that application of the exceptional circumstances standard was not 

appropriate under Rule 1:13-7 because there were no defendants who 

were properly served and against whom Deus's complaint was pending 

when the consolidation motion was filed, and the Rule does not 

address consolidated cases. Moreover, the consolidation order was 

 

2 The complaint also asserted a negligence claim against 

fictitiously-named defendants, but the record shows those 

defendants were never identified or served with a summons and 

complaint. 
8 A-2357-16T2

not entered until August 5, 2016, and therefore Deus's filing of 

the reinstatement motion only four weeks later could not have 

substantially delayed the proceedings in the consolidated case. 

Our conclusion that the trial court erred by applying the 

exceptional circumstances standard under the circumstances 

presented does not end the inquiry. We consider whether the record 

supports a determination that plaintiff demonstrated good cause 

for the reinstatement of the complaint.3 R. 1:13-7(a). 

The "good cause" standard is difficult to precisely define. 

"Its 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, supra, 390 N.J. Super. at 196 (quoting Del. 

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

232 (App. Div. 2002)). Our Supreme Court has defined "good cause"

as "the presence of a meritorious [claim] worthy of judicial 

determination . . . and the absence of any contumacious conduct 

. . . ." O'Connor v. Altus, 67 N.J. 106, 129 (1975).

 

3 Under Rule 1:3-7(a) the good cause standard applies where a 

single defendant complaint is administratively dismissed. The good 

cause standard, however, has been applied to a motion to reinstate 

a complaint against multiple defendants. See Ghandi, supra, 390 

N.J. Super. at 195-96. 
9 A-2357-16T2

In Ghandi, we addressed the good cause standard under Rule

1:13-7(a), stating that because administrative dismissals are 

"without prejudice," "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." Ghandi, supra, 390 N.J. Super. at 196. We also 

observed that "absent a finding of fault by the plaintiff and 

prejudice to the defendant, a motion to restore under [Rule 1:13-

7(a)] should be viewed with great liberality." Id. at 197. 

In Baskett, we applied the Ghandi good cause standard under 

Rule 1:13-7 to a trial court's denial of the plaintiffs' motion 

to reinstate a complaint. Baskett, supra, 422 N.J. Super. at 384-

85. We observed that the plaintiffs' reasons for not exercising 

personal oversight of the handling of the matter were "meager and 

incomplete." Id. at 385. We were "most concerned," however, that 

the dismissal resulted from plaintiffs' first counsel's 

inattention. Ibid. We also noted that defendants failed to 

present any evidence showing they suffered prejudice from the 

plaintiffs' delay in seeking reinstatement. Ibid. We reversed 

the trial court's order, finding that under the "indulgence 

mandated by Ghandi," and because the plaintiffs' were "essentially 

blameless, the courthouse doors should not be locked and sealed 
10 A-2357-16T2

to prevent their claims from being resolved in the judicial forum."

Ibid. 

Here, application of the principles in Ghandi and Baskett

require reversal of the court's order denying Deus's motion to 

reinstate the complaint. The record does not support a finding of 

prejudice. Medley and Progressive did not oppose plaintiff's 

motion for reinstatement and did not present the motion court with 

any evidence showing they would be prejudiced if Deus's motion was 

granted. See Baskett, supra, 422 N.J. Super. at 385 (finding good 

cause for reinstatement of a complaint in part because the 

defendant did not present a "scintilla of evidence" supporting his 

claim of prejudice); Ghandi, supra, 390 N.J. Super. at 197 (finding 

court erred in denying reinstatement motion in part because the 

defendants failed to object to the reinstatement motion). 

In the certification in support of the reinstatement motion,

Deus's counsel explained that service of the summons and complaint 

was not timely made because his office was unable to effect 

service. Because the reinstatement motion was uncontested, there 

was no evidentiary basis before the motion court permitting a 

finding to the contrary.4 In any event, there is no evidence 

 

4 In his certification supporting the motion for reconsideration,

Deus's counsel further explained that service of the summons and 

complaint was delayed following the administrative dismissal
11 A-2357-16T2

showing Deus was responsible for the delay in serving Medley and 

Progressive or in making the reinstatement motion. As we found 

in Ghandi and Baskett, under such circumstances and in the absence 

of any showing of prejudice, plaintiff demonstrated good cause for 

reinstatement of his complaint and should not be foreclosed from 

adjudicating his claims in court. Ghandi, supra, 390 N.J. Super.

at 198; Baskett, supra, 422 N.J. Super. at 385.

We reverse the court's order denying Deus's motion to 

reinstate his complaint as to Medley and Progressive. It is 

therefore unnecessary to address Deus's appeal from the court's 

order denying his motion for reconsideration. 

Reversed and remanded for further proceedings consistent with 

this opinion. We do not retain jurisdiction.

 

 

because he was engaged in discussions and an exchange of 

information with Medley's insurance carrier and Progressive. This 

information was not before the court on Deus's motion to reinstate 

the complaint and we do not rely upon it in our analysis of the 

court's order denying the motion.