One cannot name fictitious entities in a premises liability lawsuit and later seek to amend the complaint under Rule 4:26-4 where the exercise due diligence would have revealed the identities of the proper defendants.

The plaintiff claimed he fell and sustained injuries due to a defective sidewalk abutting a building at 78-80 Mallory Avenue in Jersey City. In response to the plaintiff’s Notice of Tort Claim served on the City of Jersey City, the plaintiff was sent information from the City that identified the commercial landowners of 78 and 80 Mallory Avenue. At that time, however, the plaintiff did not commence a formal lawsuit. Nonetheless, after more than two years transpired, the plaintiff sued numerous defendants in connection with the incident. The case proceeded through written discovery, and only then did the plaintiff realize he erroneously failed to name one of the property owner-defendants in the suit. Accordingly, he sought leave to amend the complaint, which the trial court denied due to his lack of due diligence under Rule 4:26-4. The Appellate Division affirmed, concluding that the plaintiff’s dilatory conduct deprived the proposed defendants from investigating the condition of the sidewalk at the time of the accident, which was fatal to the plaintiff’s claims.

^{Case Law Alerts, 2nd Quarter, April 2019}

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