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Dismissal - Civil Procedure Abulkhair v. Boeme (A-3544-08T1)



DOCKET NO. A-3544-08T13544-08T1








Argued March 16, 2010 - Decided

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-225-08.

Assem A. Abulkhair, appellant, argued the cause pro se.

David Lustbader argued the cause for respondents (Philip M. Lustbader & David Lustbader, P.C., attorneys; Mr. Lustbader and James S. Colavito, on the brief).


Plaintiff Assem A. Abulkhair appeals from the denial of his motion for reconsideration and a second order denying his request to extend discovery. We have considered the arguments plaintiff has raised in light of the record and applicable legal standards. We reverse.

Plaintiff was involved in an automobile accident and sought dental treatment from defendant, Edward W. Boehm, D.M.D., in September 1999. He continued treatment with defendant through April 2002. In his pro se complaint, filed on February 4, 2008, plaintiff alleged that he believed defendant was submitting his bills to plaintiffs PIP carrier for payment, and not to Medicaid. Plaintiff claimed that as a result, his PIP claim against his insurance carrier was ultimately dismissed, and he suffered damages as a result. Although the complaint was denominated as one for "Medical Malpractice," it is clear from its face that was not the case.

This was obvious to the motion judge, who, when defendant moved to dismiss the complaint for failure to file an affidavit of merit, N.J.S.A. 2A:53A-27, concluded in a brief written opinion,

While billing patients is part of the Defendants practice, it remains outside of the professional services rendered by the Defendant and therefore any alleged errors made in this capacity would not fall under the umbrella of professional malpractice. See Hampton Medical Group, P.A. v. Princeton Ins. Co., 366 N.J. Super. 165 [,178] (App. Div. 2004) ("[t]he bill is an effect of the service provided, not part of the service itself[.]") [(quotation omitted)]. Therefore, since the case at bar is not one based on medical malpractice, submission of an affidavit of merit is unnecessary.

[Footnote omitted.]

The judges order of July 3, 2008 denied defendants motion; he entered a second order changing the case track of the litigation to "Track II . . . Tort-Other." See R. 4:5A-2(b) ("[A] track assignment may be changed by the court on its own motion . . . only if the fundamental cause or causes of action have changed or if the case type or track was erroneously identified on a partys Case Information Statement . . . .").

Discovery ensued, and it is clear from the appellate record that it was contentious. In October, defendant again moved to dismiss the complaint alleging it was filed beyond the two-year statute of limitations generally applicable to "tort actions," N.J.S.A. 2A:14-2. Plaintiff argued that the appropriate statute of limitations was that applicable to contract actions, i.e., six-years, N.J.S.A. 2A:14-1; and, alternatively, that the discovery rule should apply, Lopez v. Swyer, 62 N.J. 267 (1973), because he was unaware of defendants alleged billing error until October 2007, during discovery in the PIP suit. Plaintiff also argued the motion was premature because discovery was ongoing.

In a short written opinion, the judge concluded that N.J.S.A. 2A:14-2 applied, but that plaintiff should be accorded the opportunity to demonstrate the grounds for equitable relief provided by the discovery rule. He ordered both sides to submit certifications, and denied defendants motion without prejudice.

Plaintiffs certification included references to his attempts to obtain his records from defendant during the course of his PIP litigation. Plaintiff also moved to compel additional discovery, claiming defendant had failed to provide responsive interrogatory answers, and plaintiffs complete medical file. On October 24, the judge entered an order denying that motion, but granting plaintiffs request to inspect a disputed "original registration form." Discovery disputes continued, plaintiff moved to compel the production of certain documents, and the judge entered an order, sua sponte, on December 2, requiring plaintiff to appear in court on January 13, 2009.

Plaintiff appeared in court and the judge conducted a Lopez hearing, during which plaintiff was placed under oath and questioned by defense counsel and the judge. The judge also considered oral argument regarding the discovery dispute.

On January 14, the judge entered two orders, one dismissing the complaint with prejudice, and the second denying plaintiffs discovery requests. In a brief written opinion, the judge concluded that plaintiff should have known by 2005 at the latest that defendant had not submitted the dental bills to plaintiffs PIP carrier. He applied a two-year statute of limitations to the claim, and dismissed the complaint as time-barred. The opinion did not address the discovery application, though it is clear that the judge concluded the issue was moot in light of the dismissal of the complaint.

Plaintiff moved for reconsideration, and to compel the production of certain documents and for an extension of discovery. The judge denied those requests in two orders entered on February 9. In a brief written opinion, the judge found no reason presented under Rule 4:49-2 to warrant reconsideration, and he determined the discovery extension motion was moot. Plaintiff filed this appeal on March 25.

Plaintiffs notice of appeal only seeks review of the February 9 orders, though his Case Information Statement clearly references the January dismissal "based on the statute of limitations . . . ." The failure on plaintiffs part to include in the notice of appeal the original order dismissing his complaint permits us to limit our review solely to the denial of his motions for reconsideration and discovery relief. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002). That technical failure might be overlooked, however, if "the substantive issues in the case and the basis for the motion judges ruling on the [motion to dismiss] and [the] reconsideration motion[] [were] the same." Id. at 461.

In this case, the judges ruling on the motion for reconsideration reiterated the grounds for his earlier ruling dismissing the complaint. As a result, our review is not impeded, nor has defendant been prejudiced since he has argued the merits of the dismissal in his brief. We therefore exercise our discretion and consider whether the complaint was properly dismissed as time-barred.

Because the motion judges factual finding that plaintiff knew or should have known about his claim against defendant no later than 2005 is based upon substantial credible evidence adduced at the Lopez hearing, we accept it. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); State v. Locurto, 157 N.J. 463, 474 (1999) (requiring us to give deference to the trial courts credibility determinations). Although defendant argues, and the motion judge accepted, that the applicable statute of limitations for plaintiffs claims was two years, we conclude this was error. The judge reasoned that plaintiffs complaint alleged an "intentional tort," although he never expounded on what he meant by that. N.J.S.A. 2A:14-2(a) provides in pertinent part that "[e]very action at law for an injury to the person caused by the wrongful act, neglect or default of any person . . . shall be commenced within two years next after the cause of any such action shall have accrued . . . ." While some intentional torts are subject to this statute of limitations, the gravamen of the cause of action must be some "injury to the person . . . ." Ibid. See, e.g., Balliet v. Fennell, 368 N.J. Super. 15, 21 (App. Div. 2004) (finding breach of fiduciary duty claim subject to N.J.S.A. 2A:14-2 because the "cause of action . . . str[uck] at the physical and emotional well-being of" the plaintiff). If the action seeks recovery for personal injuries, the statute applies even if the complaint sounds in breach of contract. Heavner v. Uniroyal, Inc., 63 N.J. 130, 144 (1973) (citations omitted).

However, N.J.S.A. 2A:14-1 provides in pertinent part that "[e]very action at law for . . . for any tortious injury to real or personal property, . . . for any tortious injury to the rights of another . . ., or for recovery upon a contractual claim . . . shall be commenced within 6 years next after the cause of any such action shall have accrued." The essence of plaintiffs claim was that defendant improperly billed Medicaid instead of his PIP insurer, and, as a result, plaintiffs PIP claims were disputed and ultimately dismissed. Although it may have been inartfully framed, the complaint sought recovery on a theory that defendants acts or omissions either breached an implied contract with plaintiff regarding payment for services, or that defendant otherwise tortiously interfered with the contractual rights between plaintiff and his PIP carrier. Based upon the issues raised on appeal, it is not incumbent upon us to evaluate either the plausibility or merits of plaintiffs complaint. However, applying the statute of limitations contained in N.J.S.A. 2A:14-2, plaintiffs complaint, filed in 2008, was not time-barred.

Because we reverse the dismissal of the complaint, we must also reverse the order denying plaintiffs request for an extension of discovery and to compel the production of documents because those issues are no longer "moot." We express no particular opinion regarding plaintiffs applications, and we leave all issues regarding discovery in this matter to the sound discretion of the trial judge.

Reversed and remanded; we do not retain jurisdiction.

Plaintiffs complaint names "Edward W. Boehm, D.A." as a defendant. We assume this was an erroneous reference to the professional association that employed defendant; we have corrected the reference as necessary throughout this opinion.

Throughout the opinion, we shall refer to both defendants in the singular.

We affirmed the dismissal of plaintiffs PIP suit on statute of limitation grounds. Abulkhair v. Liberty Mut. Ins. Co., No. A-3296-07 (App. Div. December 10, 2008), certif. denied, 199 N.J. 130 (2009).

We cannot discern from the limited record on appeal the exact nature of this form and its significance, if any, to the litigation.





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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

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