RUDY FABIANO v. ALICIA PAGALILAUAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2132-10T1

RUDY FABIANO,

Plaintiff-Appellant,

v.

ALICIA PAGALILAUAN,

Defendant-Respondent.

__________________________

March 22, 2012

Argued March 13, 2012 - Decided

Before Judges Simonelli and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5747-10.

Demetrios K. Stratis argued the cause for appellant.

Thomas W. Matthews argued the cause for respondent (Soriano, Henkel, Biehl & Matthews, attorneys; Mr. Matthews, on the brief).

PER CURIAM

In this personal injury matter, plaintiff Rudy Fabiano appeals from the November 12, 2010 Law Division order, which dismissed his complaint with prejudice based on the two-year statute of limitations, N.J.S.A. 2A:14-2. We affirm.

On April 16, 2008, plaintiff, an adult, was riding a bicycle when he was struck by a vehicle owned and operated by defendant Alicia Pagalilauan. Plaintiff claimed that an x-ray taken that day revealed a large medial femoral osteochondroma on his right knee with a small traction spur along the anterior superior patella.1 Plaintiff was aware of the existence of the osteochondroma since his adolescence. Plaintiff also claimed that an MRI taken shortly after the accident revealed a non-displaced fracture at the base of the osteochondroma.

Four months after the accident, in August 2008, plaintiff began developing severe pain in his leg after bicycling. He claimed that an MRI taken on October 11, 2008, revealed a malignant transformation of the osteochondroma. Plaintiff's counsel then advised defendant's insurance carrier that he represented plaintiff for injuries sustained in the accident, and asked the carrier to "set up a claim for bodily injury[.]"

Plaintiff was treated thereafter by John H. Healey, M.D. Dr. Healey did not confirm that plaintiff had sustained a fracture at the base of the osteochondroma, or that there was a malignant transformation of the osteochondroma.2 Nonetheless, he decided that "the best approach" was to surgically remove the osteochondroma. Plaintiff underwent surgery on November 18, 2008. Dr. Healey's surgical report did not confirm that there was a fracture or malignancy, and there was no biopsy.

On July 12, 2010, plaintiff filed a complaint seeking damages for the malignant transformation of the osteochondroma and the resulting surgery, not the fracture. Defendant filed a motion to dismiss on statute-of-limitation grounds. Plaintiff did not submit a certification from a medical professional confirming the alleged malignant transformation or its causal connection to the accident. Judge Rosenberg granted the motion, finding that plaintiff became aware of the alleged malignant transformation by November 18, 2008, and should have filed his complaint prior to April 16, 2010. This appeal followed.

Relying on Mancuso v. Mancuso, 209 N.J. Super. 51 (App. Div. 1986), plaintiff contends on appeal that he timely filed his complaint because the "discovery rule" applies, and he did not discover the malignant transformation until October 11, 2008. Citing Fox v. Passaic Gen. Hosp., 71 N.J. 122 (1976), plaintiff contends that he timely filed his complaint because he had two full years from the date he discovered the alleged malignant transformation on October 11, 2008 to do so. We reject these contentions.

First and foremost, unlike the plaintiffs in Mancuso and Fox, plaintiff here has no medical evidence confirming the alleged malignant transformation and its causal connection to the accident. See Mancuso, supra, 209 N.J. Super. at 54; Fox v. Passaic General Hospital, 135 N.J. Super. 108, 110-12 (App. Div. 1975), aff'd 71 N.J. 122 (1976). Thus, plaintiff cannot prove that he suffered an injury related to the accident.

In addition, the "discovery rule" only applies "where a plaintiff is unaware of his or her injury until after the limitation period would otherwise expire or where the damage was apparent, but the plaintiff was unable to attribute the cause to another." Henry v. Dep't of Human Servs., 204 N.J. 320, 336 (2010) (citing Lopez v. Swyer, 62 N.J. 267, 274 (1973)). Here, plaintiff was aware of the alleged malignant transformation before the limitation period expired, and claimed that it was attributable to the accident. Thus, the "discovery rule" does not apply.

Finally, a cause of action for automobile negligence ordinarily accrues when the accident takes place, and thus, the plaintiff is then chargeable with knowledge of the cause of action "even if it should thereafter appear that the injuries then known to have been sustained turn out to be more serious than originally believed." Mancuso, supra, 209 N.J. Super. at 57. Here, plaintiff knew shortly after the accident that he had allegedly suffered a non-displaced fracture at the base of the osteochondroma. He developed severe pain four months after the accident. Less than six months after the accident, a second MRI allegedly revealed the malignant transformation. Even assuming there is a causal connection between the malignant transformation and the accident, this is a case in which the injuries plaintiff knew he had sustained from the accident turned out to be more serious than he originally believed. Plaintiff, thus, is chargeable with knowledge of the injury as of the date of the accident, and not the date of the second MRI or the surgery.

1 Plaintiff has not supplied the reports for the x-rays and MRIs mentioned herein, nor does the record reveal that he supplied them to the trial judge. We derive the information about plaintiff's alleged injuries from his certification submitted in opposition to defendant's motion to dismiss.

2 We derive this information from Dr. Healy's treatment notes.