MARIXSA HERRERA v. ARLENE C. SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2634-04T12634-04T1

MARIXSA HERRERA,

Plaintiff-Appellant,

v.

ARLENE C. SMITH and

HAROLD SMITH,

Defendants-Respondents.

__________________________________

 

Argued December 21, 2005 - Decided February 6, 2006

Before Judges Fall and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1157-03.

Donald Werner argued the cause for appellant.

Alan R. Lebowitz argued the cause for respondents (Maloof, Lebowitz, Connahan & Oleske, attorneys; Mr. Lebowitz, on the brief).

PER CURIAM

Plaintiff Marixsa Herrera appeals from the grant of summary judgment to defendants Arlene C. Smith and Harold Smith under the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35. The trial court granted summary judgment on the court's bare conclusion that plaintiff's injuries did not have a serious impact on her life and indicated that the motion had been unopposed. The plaintiff promptly filed a motion for reconsideration in which she proved that opposition had been filed. After refusing to entertain oral argument in contravention of R. 1:6-2(d), the motion judge denied reconsideration for the following reasons:

(1) Opposition not received in a timely manner.

(2) Additionally, review of records shows that [plaintiff]'s knee is functioning normally & that [plaintiff]'s life has not been substantially affected. The fact that she cannot go dancing twice a month is insufficient.

No further explanation was given despite our oft-repeated admonition that a trial court must set forth the factual and legal basis for the court's determination. See, e.g., Schwartz v. Schwartz, 328 N.J. Super. 275, 282 (App. Div. 2000); Italiano v. Rudkin (Italiano), 294 N.J. Super. 502, 505 (App. Div. 1996); Ribner v. Ribner, 290 N.J. Super. 66, 77 (App. Div. 1996); Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990); In re Will of Marinus, 201 N.J. Super. 329, 338-39 (App. Div. 1985), certif. denied, 101 N.J. 332 (1985).

We need not tarry long on the timeliness of the opposition or on the absence of a serious life impact. The record clearly establishes that opposition had been filed, albeit late, on Wednesday, October 6, 2004, for an October 8, 2004, return date. On October 7, 2004, the motion was carried to October 22, 2004. This adjournment cured the late filing. The opposition should have been considered. See Rabboh v. Lamattina, 312 N.J. Super. 487, 491-93 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999). A lesser sanction than a refusal to consider papers on a dispositive motion would have sufficed, if any sanction was even merited, which the record here does not support.

Although not decided before the grant of summary judgment in this case, DiProspero v. Penn, 183 N.J. 477, 506 (2005), has eliminated any requirement that a plaintiff subject to AICRA prove that the injury has had a serious impact on the plaintiff's life. Furthermore, such a plaintiff need not prove that the injury itself was serious. Serrano v. Serrano, 183 N.J. 508, 518-19 (2005). A plaintiff need only prove that the injury fits within one of the statutory criteria. Id. at 519. Those cases apply to every case pending in the trial court or on appeal. Beltran v. DeLima, 379 N.J. Super. 169, 174-75 (App. Div. 2005). This leaves only the issue of an AICRA injury.

Plaintiff alleges that she suffered a permanent injury to her right knee. In order to satisfy the requirements of N.J.S.A. 39:6A-8, plaintiff must prove that her knee "has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. We consider the evidence in a light most favorable to plaintiff and give plaintiff the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 536, 540 (1995).

The motor vehicle accident occurred on December 2, 2002. Plaintiff testified that because she is short she has to sit close to the steering wheel, and as a result she struck her knee on impact with defendants' car. She was seen by a chiropractor the following day and complained of various soft-tissue injuries as well as pain in her right knee. She came under the care of Jerald P. Vizzone, D.O., an orthopedic surgeon, on January 8, 2003. He ordered an MRI, which revealed joint effusion and a tear of the posterior horn of the medical meniscus. After an epidural injection did not provide any lasting relief, plaintiff was taken to arthroscopic surgery on February 21, 2003. Although the MRI proved to be incorrect, the surgeon did find an osteochondral defect at the articular surface of the patella and performed thermochrondroplasty, bringing the lesion to a more stable articular surface. In addition, he found a large medial patella plica that he resected with a shaver. The surgeon also removed the synovial membrane at the intercondylar notch and the lateral compartment.

Dr. Vizzone diagnosed traumatic internal derangement of the right knee, traumatic osteochondral defects, traumatic medial patellar plica and hypertrophic synovitis. He opined that these injuries to plaintiff's knee were caused by the motor vehicle accident of December 2, 2002. The osteochondral defect and the surgical intervention itself led Dr. Vizzone to conclude that the injuries were permanent, and that plaintiff will require further orthopedic care. He also expressed the opinion that surgical intervention in the future was likely. He certified that there were permanent residual sequelae which could not be resolved with further medical treatment and that plaintiff would have these residuals for the rest of her life.

Plaintiff, who is a nurse at a Veterans Administration hospital, testified to those residual sequelae when she was deposed on March 10, 2004. At that time she expressed that the pain and swelling in her knee waxed and waned. She stated that on days when she is on her feet constantly, her knee gets very swollen, and her pain level increases significantly. Plaintiff wears a knee brace, takes Advil daily, and cannot kneel on her right knee.

Where the findings below are not supported by the record, as here, the appellate court may appraise the record and make findings anew. Pioneer National Title Inc. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff'd, 78 N.J. 320 (1978). We have done so in this case and conclude that there is sufficient objective clinical evidence of a permanent injury to require trial by jury as described in this opinion. This is so because once there has been surgical removal of articular cartilage in a knee, the knee itself is no longer normal. The evidence as to whether the knee is functioning normally despite that surgical alteration is in dispute. Defendants' expert witness is of the opinion that plaintiff's right knee functions normally. On the other hand, plaintiff's expert opines that plaintiff will have residual sequelae the rest of her life and plaintiff has testified that her knee gets very swollen and painful when she is on her feet all day long at work, that she takes Advil and wears a knee brace every day, and that she can no longer kneel on her right knee. Such a dispute of a material fact requires a trial by jury. Brill v. Guardian Life Ins., 142 N.J. 520, 536 (1995).

 
Reversed and remanded for trial.

The opposition had been hand-delivered to the judge's law clerk, nineteen days earlier, and the law clerk had signed a written acknowledgment of receipt of the opposition.

(continued)

(continued)

6

A-2634-04T1

February 6, 2006