MARILYN PISCITELLI v. DR. ILYA LIPKIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1525-11T1

MARILYN PISCITELLI,

Plaintiff-Appellant,

v.

DR. ILYA LIPKIN,

Defendant-Respondent.

________________________________________________________________

November 21, 2012

Submitted May 30, 2012 - Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7653-09.

Marilyn Piscitelli, appellant pro se.

Schechner Marcus, LLP, attorneys for respondent (Andrea S. Glaser, of counsel and on the brief).

PER CURIAM

The trial court granted summary judgment, dismissing plaintiff Marilyn Piscitelli's malpractice complaint against her orthodontist, defendant Ilya Lipkin. Plaintiff now appeals from an order that denied her motion to vacate that judgment. We affirm.

Plaintiff was defendant's patient from 2005 until 2009. Plaintiff filed her complaint on November 12, 2009, alleging claims of malpractice, abandonment, breach of contract, and failure to refer. In support of her malpractice claim, plaintiff submitted the expert report of Harry Aronowitz, D.M.D., who provided the following opinion:

It is my opinion that the defendant, Dr. Ilya Lipkin's treatment of the plaintiff, Marilyn Piscitelli, fell outside of professional standards. There is an expectation that orthodontic treatment would result in improved dental function and esthetics. The records show a negative change in dental and facial esthetics, mainly due to a significant increase in the protrusion of the upper incisors. This unfortunate result of orthodontic treatment has contributed to a speech impediment as well as difficulty in masticating food.

In his deposition on May 20, 2011, Dr. Aronowitz admitted that he had not reviewed any of defendant's records after 2007, despite the fact that treatment continued until 2009. He admitted that his report was "incomplete" as a result, and when asked if he planned to write a supplemental report, answered that he had not been asked to do so. Dr. Aronowitz further admitted that, not having looked at defendant's treatment notes, he did not know if there was a specific standard from which defendant had deviated.

The discovery period ended on June 10, 2011. Plaintiff did not seek to submit a supplemental expert report prior to the expiration of the discovery end date.

Defendant filed a motion for summary judgment on the ground that Dr. Aronowitz's opinion was an inadmissible net opinion. Plaintiff opposed the motion and did not seek to supplement Dr. Aronowitz's report before the return date of August 25, 2011. The trial court granted the motion and dismissed plaintiff's complaint in its entirety, finding that the report was a net opinion and that all of plaintiff's claims were subsumed in the malpractice claim.

In September 2011, plaintiff filed a motion for relief from that judgment pursuant to Rule 4:50-1(f). In support of that motion, plaintiff submitted a supplemental report from Dr. Aronowitz. His report purported "to provide explanation of the standard of care breached by Dr. Lipkin in the treatment of Ms. Piscitelli and its proximal cause in producing damages to her." Dr. Aronowitz did not, however, identify any records he relied upon in forming this supplemental opinion that were not available to plaintiff prior to the expiration of the discovery period.

Rule 4:50-1(f), the rule relied upon by plaintiff in seeking relief, permits courts to vacate judgments for "any other reason justifying relief from the operation of the judgment or order." "[B]ecause of the importance that we attach to the finality of judgments, relief under Rule 4:50-1(f) is available only when 'truly exceptional circumstances are present.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 484 (2012) (quoting Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994)). Relief under this rule is to be granted "sparingly, in exceptional situations; the Rule is designed to provide relief from judgments in situations in which, were it not applied, a grave injustice would occur." Hous. Auth. of Morristown, supra, 135 N.J. at 289; see also Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 237 (1998); Nowosleska v. Steele, 400 N.J. Super. 297, 304 (App. Div. 2008).

In arguing that the trial court erred in denying her relief under this rule, plaintiff does not identify any exceptional circumstance. Rather, she admitted that the trial court correctly concluded that Dr. Aronowitz's initial expert report constituted an inadmissible net opinion and that her motion relied upon her subsequent effort to cure that deficiency, stating:

Although the report met the threshold requirements to satisfy the statute it did not for the net opinion rule for malpractice liability. Piscitelli and Dr. Aronowitz agreed with the Court's opinion of August 30, 2011 . . . that the Orthodontic Expert Witness Report was a net opinion and did not establish the link between Dr. Lipkin's actions and Piscitelli's damages and submitted the reconsideration motion of September 16, 2011 . . . with a supplemental report containing the advancing wires evidence.

Plaintiff also admitted that her expert's "initial review of Dr. Lipkin's treatment was fleeting at best and not the in[-] depth analysis that was necessary to determine causation." She contended that she and her expert were unaware the initial report was a net opinion until they read the trial court's decision, dated August 30, 2011, and stated,

By that time the Discovery End date had passed and a trial date had been set. The only remedy was to file a reconsideration motion when the cause of Piscitelli's damages had been found in Dr. Lipkin's treatment notes.

Thus, the thrust of plaintiff's argument is that she should have been able to vacate a summary judgment order that she admits was properly entered based upon her expert's net opinion because, after the fact, her expert conducted an in-depth analysis of records that were available before the motion was decided and prepared a report that, she argues, would be admissible.

As noted, relief under Rule 4:50-1(f) is appropriate only in extraordinary circumstances. A similar showing is required for plaintiff to obtain the extension of the discovery period necessary for plaintiff's supplemental expert opinion to be admissible pursuant to Rule 4:24-1(c) ("No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown.").

In order to extend discovery based upon "exceptional circumstances," the moving party must satisfy four inquiries: (1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

[Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.), certif. denied, 185 N.J. 296 (2005).]

When these factors are not present and "the 'delay rests squarely on plaintiff's counsel's failure to retain an expert and pursue discovery in a timely manner,' . . . there are no exceptional circumstances to warrant an extension." Ibid. (quoting Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 473-74 (App. Div. 2005)).

As plaintiff concedes, the failure to submit an admissible expert report prior to the end of the discovery period was due to her expert's failure to conduct an in-depth analysis of available records. Thus, the failure to obtain an appropriate expert report "rests squarely" on plaintiff. None of the factors cited above are present here. Therefore, plaintiff has failed to demonstrate either the "exceptional circumstances" required for relief under Rule 4:24-1(c) or the extraordinary circumstances required for relief under Rule 4:50-1(f).

To the extent that we have not addressed any other arguments raised by plaintiff, we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).