ZUCCO v. WALGREEN EASTERN CO., INC.

 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.
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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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).

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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
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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. Nunno-
D'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.
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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.
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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."
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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.
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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.")).
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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).
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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
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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 Nunno-
D'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 plaintiff s'
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 Nunno-
D'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.