PHILIP E. HAHN v. UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2010-09T1

PHILIP E. HAHN,

Plaintiff-Appellant,

v.

UNIVERSITY OF MEDICINE AND

DENTISTRY OF NEW JERSEY

and MARCO ZARBIN,

Defendants-Respondents.

________________________________________________________________

January 12, 2011

Argued January 4, 2011 - Decided

Before Judges Espinosa and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3267-07.

Philip E. Hahn, appellant, argued the cause pro se.

Karin J. Ward argued the cause for respondent (Ruprecht, Hart & Weeks, LLP, attorneys; Michael R. Ricciardulli, of counsel and on the brief; Ms. Ward, on the brief).

PER CURIAM

Plaintiff Philip E. Hahn appeals from an order that denied his motion for an evidentiary hearing regarding a complaint that was dismissed. For the reasons that follow, we affirm.

In April 2007, plaintiff filed a complaint against defendants University of Medicine and Dentistry of New Jersey (UMDNJ) and Marco Zarbin, a physician described in the complaint as "employed by the UMDNJ." Hahn v. The Univ. of Medicine and Dentistry of New Jersey, et al., Docket No. ESX-L-3267-07 ("the 2007 complaint"). The sole allegation in the complaint was that "Marco Zarbin removed the lens in Phil Hahn's right eye at [UMDNJ]." The complaint was dismissed, first in August 2007 as to UMDNJ, and later, in February 2008 against Dr. Zarbin. The ground for dismissal in each case was that plaintiff failed to file a notice of claim pursuant to the Tort Claims Act, N.J.S.A. 59:8-1 et seq.

After the dismissal of his complaint was affirmed on appeal, Hahn v. The Univ. of Medicine and Dentistry of New Jersey, et al., No. A-3815-07 (App. Div. Jan. 26, 2009), plaintiff served a notice of claim and filed a second complaint against the defendants regarding the same claims. That complaint was dismissed and the dismissal was affirmed on appeal, Hahn v. The Univ. of Medicine and Dentistry of New Jersey, et al., No. A-4216-08 (App. Div. Mar. 22, 2010). There are no issues regarding the second complaint before us in this appeal.

Plaintiff concedes that a notice of claim is required before filing a complaint that alleges a tort but argues that a notice of claim is not required if a crime was committed.1 Plaintiff states that the removal of his lens was an invasive procedure that was unauthorized and was therefore a battery.

In October 2009, plaintiff filed a motion for an evidentiary hearing at which he intended to cross-examine Dr. Zarbin. Plaintiff represents that he intended to question the defendant regarding his statement that he was acting within his capacity as an employee of UMDNJ and "whether the doctor had committed a crime - knowingly or accidentally." Plaintiff now appeals from the order that denied his motion for an evidentiary hearing, citing R. 4:50-12 as authority for the relief sought.

Plaintiff states that he was entitled to an evidentiary hearing because there are disputed facts regarding whether Dr. Zarbin was acting within his capacity as an employee of UMDNJ and because plaintiff claims that he was the victim of the crime of battery. Even if we treat plaintiff's April 2010 certification3 as part of the record here and assume arguendo that a factual dispute exists regarding the issues identified by plaintiff, the relief he sought is not available pursuant to R. 4:50-1, which states in pertinent part:

[T]he court may relieve a party . . . from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud . . ., misrepresentation , or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

When, as here, a party is not seeking relief from a default judgment, a motion for relief from judgment is to be granted sparingly. Moreover, the determination as to whether relief should be granted is left to the sound discretion of the trial court, whose determination will be left undisturbed unless it amounts to a clear abuse of discretion. Morristown Housing Auth. v. Little, 135 N.J. 274, 283-84 (1994).

The stated purposes for the cross-examination sought by plaintiff was to explore whether Dr. Zarbin was acting within his capacity as an employee of UMDNJ and whether Dr. Zarbin committed a crime. As to the first of these, the representations made by Dr. Zarbin in his statement are entirely consistent with the description in the complaint, i.e., that Dr. Zarbin was "employed by the UMDNJ" and that he "removed the lens in Phil Hahn's right eye at [UMDNJ]." There is, then, no material dispute regarding this issue. As to the second line of inquiry, it must be recognized that, pursuant to the Fifth Amendment of the U.S. Constitution, Dr. Zarbin cannot be compelled to answer questions that are designed to incriminate him. Therefore, it is more likely than not that any evidentiary hearing for the purposes stated would be futile.

We are also mindful that restoring the complaint would entail restoring claims that are now barred by the statute of limitations, see N.J.S.A. 2A:14-2 (two years statute of limitations for claims of medical malpractice and assault and battery); Hahn v. The Univ. of Medicine and Dentistry of New Jersey, et al., Docket No. A-4216-08T3 (Mar. 22, 2010); a factor to be considered in weighing the appropriateness of granting relief under this Rule. See Miller v. Estate of Kahn, 140 N.J. Super. 177 (App. Div. 1976).

Under these circumstances, we are satisfied that the trial court did not abuse its discretion in denying plaintiff's motion.

A

1 In addition, although he tacitly recognized the finality of the dismissal of the 2007 complaint by filing a second complaint after the dismissal was affirmed on appeal, plaintiff argues that the 2007 complaint is still pending because no notice was issued by the Law Division to announce the end of the discovery period pursuant to R. 4:36-2. However, it is evident that such notice was unnecessary because the matter had been dismissed.

2 We note that, notwithstanding plaintiff's contention that the 2007 complaint remains pending, this Rule applies only to final orders and judgments.

3 In this certification, which is included in his appendix, plaintiff states:

1. On June 1, 2005 the lens was removed from my right eye by Marco Zarbin.

2. Prior to being removed from my right eye the lens was working properly.