ESTATE OF PATRICIA GRIECO v. HANS J. SCHMIDT, M.D.

NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
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   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0756-16T4

ESTATE OF PATRICIA GRIECO,
by its administrator VINCENT
GRIECO, and VINCENT GRIECO,
individually,

           Plaintiffs-Appellants,

     v.

HANS J. SCHMIDT, M.D., and
ADVANCED LAPAROSCOPIC ASSOCIATES,

          Defendants-Respondents.
______________________________________________________

           Submitted January 17, 2018 – Decided January 29, 2018

           Before Judges Fisher and Moynihan.

           On appeal from Superior Court of New Jersey,
           Law Division, Bergen County, Docket No.
           L-10061-09.

           Brazza Law, LLC, attorneys for              appellants
           (Caesar D. Brazza, on the brief).

           Marshall Dennehey Warner Coleman & Goggin,
           attorneys for respondents (Robert T. Evers,
           of counsel; Walter F. Kawalec, III, on the
           brief).

PER CURIAM
     In this medical malpractice action, plaintiffs – the estate

and husband of the late Patricia Grieco – alleged the negligence

of defendant Hans J. Schmidt, M.D., and his practice, defendant

Advanced    Laparoscopic   Associates,        in    performing     laparoscopic

gastric banding surgery and in their subsequent treatment of

Patricia.   We   previously    reversed      an    interlocutory    order   that

barred   certain   witnesses    from       recounting   what     Patricia   said

defendants' staff told her in response to her complaints of chest

pains following surgery. Estate of Grieco v. Schmidt, 
440 N.J.

Super. 557, 561 (App. Div. 2015). We now consider the unusual

proceedings that followed our decision.

     A few weeks prior to the September 28, 2015 trial date,

plaintiffs' counsel was advised by plaintiffs' liability expert –

Dr. Lael Forbes of Rochester, New York – that she had married and

relocated to the New York City area; she also advised she had

sought employment with defendant Advanced Laparoscopic Associates

and could no longer act as plaintiffs' expert.1 Because of this

event – which undoubtedly disqualified Dr. Forbes from acting as

plaintiffs' expert – plaintiffs sought an adjournment of the trial




1 On September 16, 2015, a New York attorney wrote to plaintiffs'
former attorney to advise that Dr. Forbes "will not testify as an
expert" because "she feels that there is a definite conflict of
interest testifying in the case against a surgical group where she
has applied for a job."

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date so a new expert might be retained. That application was denied

and, as a result, plaintiffs' action was dismissed on September

30, 2015.

     Plaintiffs did not file a direct appeal. Instead, plaintiffs

waited nearly a year before moving for relief pursuant to Rule

4:50-1.2 The motion was denied, and plaintiffs filed this timely

appeal, arguing Dr. Forbes's act of seeking employment with the

defendant medical practice triggered a right to relief pursuant

to Rule 4:50-1(f). We disagree.

     We initially reinforce, as plaintiffs recognize by their

invocation of subsection (f), that subsections (a) through (e)

offer no ground upon which Rule 4:50-1 relief might be granted;

the subsections are mutually exclusive. Plaintiffs instead rely

solely on subsection (f), the so-called "catch-all" subsection,

which authorizes relief for "any other reason justifying relief

from the operation of the judgment or order." In invoking this

subsection   in   the   trial   court,   plaintiffs    relied   on     their

certification,    which   claimed   plaintiffs   did    not   appeal      the

action's dismissal because their attorney at the time asserted

their retainer agreement did not obligate their involvement in




2
  In the interim, plaintiffs sued Dr. Forbes in federal district
court; we are told that action is still pending.

                                    3                                A-0756-16T4
such an appeal and because plaintiffs could not otherwise afford

to pursue an appeal.

     Although its boundaries are "as expansive as the need to

achieve equity and justice," Court Inv. Co. v. Perillo, 
48 N.J.
 334, 341 (1966); see also US Bank Nat. Ass'n v. Guillaume, 
209 N.J. 449, 484 (2012); Hous. Auth. of Morristown v. Little, 
135 N.J. 274, 286 (1994), subsection (f) of Rule 4:50-1 has never been

viewed   as   a   substitute   for   a       direct   appeal   when   the    motion

addresses trial errors or the erroneous disposition of the suit.

As explained by Justice Proctor in Hodgson v. Applegate, 
31 N.J.
 29, 36 (1959), the court rules "make specific provision for attack,

before the trial court itself, and before the appellate courts,

on erroneous factual findings and trial errors." Consequently, we

have found it "well established" that a Rule 4:50 motion "may not

be used as a substitute for a timely appeal." Wausau Ins. Co. v.

Prudential Prop. & Cas. Ins. Co., 
312 N.J. Super. 516, 519 (App.

Div. 1998); see also In re Estate of Schifftner, 
385 N.J. Super.
 37, 43 (App. Div. 2006); DiPietro v. DiPietro, 
193 N.J. Super.
 533, 539 (App. Div. 1984).      Were it otherwise, the time for a Rule

4:50 motion would essentially swallow the forty-five-day time-bar

for the filing of an appeal. See R. 2:4-1(a); see also R. 2:4-4(a)

(allowing one thirty-day extension "on a showing of good cause and



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the absence of prejudice").3 We thus reject plaintiffs' argument

that Rule 4:50-1 offers a path for an examination of the trial

judge's refusal to adjourn the trial or the action's dismissal.4

     Plaintiffs also claim Rule 4:50-1 may be invoked because they

could not afford to pursue a timely direct appeal. A litigant's

impecunity, however, is not so extraordinary a circumstance as to

justify application of Rule 4:50-1(f). Schifftner, 
385 N.J. Super.

at 44. Even if plaintiffs' financial status was a determinative


3
  The medical malpractice action was dismissed on September 30,
2015, and the Rule 4:50-1(f) motion was filed a few days short of
a year later. To permit a review of the action's dismissal through
this process would essentially expand the time for an appeal far
beyond what the rules intend. We add that plaintiffs mistakenly
assume a Rule 4:50-1(f) motion is timely so long as filed within
one year of the order or judgment under attack. To the contrary,
Rule 4:50-2 expressly requires that all Rule 4:50-1 motions be
filed "within a reasonable time" – a time-bar that may be invoked
to bar a motion filed well less than one year later. See Orner v.
Liu, 
419 N.J. Super. 431, 436-38 (App. Div. 2011). The Rule's
reference to a one-year time-bar only sets forth the outermost
limit for motions based on subsections (a), (b), and (c).
4
   In denying the adjournment, the trial judge viewed the
application as one seeking a mistrial, since N.J.R.E. 104 hearings
regarding the admissibility of evidence – we assume the proceedings
required by our earlier decision – had already commenced. In either
event, and if plaintiffs' allegations regarding Dr. Forbes's
inability to proceed as their expert were to be substantiated,
plaintiffs' contention that the adjournment denial constituted an
abuse of discretion is certainly colorable. We note, however, that
the merits of the underlying determination are not necessarily
germane to Rule 4:50-1's applicability. See In re Guardianship of
J.N.H., 
172 N.J. 440, 476 (2002) (recognizing that "[t]he issue
is not the rightness or wrongness of the original determination
at the time it was made but what has since transpired or been
learned to render its enforcement inequitable").

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factor, plaintiffs have not explained what occurred (or when it

occurred) to alter their ability to prosecute an appeal.

    Affirmed.




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