JAIME FRIEDMAN, ET AL. VS. TEODORO MARTINEZ, ET AL. VS. RUBEN SABILLON, ET AL. A-4896-15T1

 JAIME FRIEDMAN, ET AL. VS. TEODORO MARTINEZ, ET AL. VS. RUBEN SABILLON, ET AL. 

A-4896-15T1 

In reversing a partial summary judgment entered in defendants' favor, the court rejected the notion that plaintiffs – in alleging an invasion of their privacy in an office building's restroom – could only claim the presence of a hidden recording device by demonstrating their images were actually captured. In adhering to the general principles delineated in Soliman v. Kushner Cos., 433 N.J. Super. 153 (App. Div. 2013), the court concluded that an intrusion on seclusion occurs when a recording device is surreptitiously present notwithstanding whether the victim was ever recorded because the tort is intended to protect the victim's peace of mind and the comfort associated with the expectation of privacy. 

ESTATE OF FRANK P. LAGANO VS. BERGEN COUNTY PROSECUTOR'S OFFICE, ET AL. A-1861-16T4

ESTATE OF FRANK P. LAGANO VS. BERGEN COUNTY PROSECUTOR'S 

OFFICE, ET AL. 

A-1861-16T4 

A court issued wiretap orders pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37, which were later suppressed. The estate of an aggrieved person moved to unseal the intercepted conversations and evidence derived for use in a state civil forfeiture action and a federal civil rights action. The Appellate Division holds disclosure for use in civil litigation is permissible "upon a showing of good cause" under N.J.S.A. 2A:156A-17(c), and disapproves the contrary ruling in In re Disciplinary Proceedings Against Spinelli, 212 N.J. Super. 526 (Law Div. 1986). Section 17(c) has no federal counterpart under Title III, which does not prevent such disclosure of the fruits of a state wiretap order. Suppression does not preclude disclosure in these circumstances. 

The trial court may order disclosure only if the need for disclosure outweighs the harms disclosure is likely to cause, subject to review for abuse of discretion. If a disclosure would reveal a person was a confidential informant for a particular agency, in a particular investigation, during a particular period, or in a particular way, the court must consider whether it is publicly known that the person cooperated with that agency, in that investigation, during that period, or in that way. 

NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES VS. R.R. A-1236-16T1

NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES VS. R.R. 

A-1236-16T1 

The panel reversed the Division of Child Protection and Permanency's administrative finding that an allegation a father abused or neglected his young daughter was "not established" rather than "unfounded." N.J.A.C. 3A:10-7.3(c)(3), (4). The finding meant there was some, but not a preponderance of evidence, he harmed her or "placed [her] at risk of harm." The Division's finding was unreasonable because its investigation was incomplete. The Division did not consider evidence related to an order to show cause the father's estranged wife filed in their pending divorce, or a video she took of the incident. A matrimonial judge ordered the Division to investigate both parents, but it only investigated the father. The Division's finding also lacked sufficient support in the record the Division did compile. The father tried to stop his daughter from throwing things during a tantrum by holding her arms. She broke free and fell, but suffered no injury. That evidence did not show that he placed her at risk of harm. 

STATE FARM GUARANTY INSURANCE COMPANY VS. HEREFORD INSURANCE COMPANY, ET AL. A-3749-16T3

STATE FARM GUARANTY INSURANCE COMPANY VS. HEREFORD 

INSURANCE COMPANY, ET AL. 

A-3749-16T3 

The court holds that the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32, does not require an arbitrator to hold an in-person hearing at a physical location. Thus, unless the parties contract for an in-person arbitration hearing, or they show specialized need for such a hearing, arbitrators can conduct hearings by telephone conference or by other electronic means. 

Accordingly, the court affirms an order that denied the application of defendant Hereford Insurance Company to compel an arbitration organization, Arbitration Forums, Inc., to hold an in-person arbitration hearing concerning the reimbursement of personal injury protection (PIP) benefits. 

NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, ET AL. VS. E.L. AND K.L. A-1823-16T2

 NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, ET AL. 

VS. E.L. AND K.L. 

A-1823-16T2 

Finding the pace of the proceedings here to be glacial in comparison to that which the Court found "troubling" in Division of Child Protection and Permanency v. E.D.-O., 223 N.J. 166, 194 (2015), the court concluded that the Department of Children and Families' inexcusable failure to provide complete discovery for a 

period of years – a circumstance that delayed the start of an evidentiary hearing about events that occurred more than six years earlier – fully justified an ALJ's dismissal of the Department's abuse and license-removal proceedings against the defendant and warranted the court's conclusion that the Department's reversal 

IN THE MATTER OF A.D., W.D., K.D., SA.B., T.B., SE.B., AND M.B. A-1905-15T4

IN THE MATTER OF A.D., W.D., K.D., SA.B., T.B., SE.B., AND M.B. 

A-1905-15T4 

The court addresses certain legal questions that arise when a case that involves the custody of a child under a Title 9 abuse or neglect FN complaint filed by the Division of Child Protection and Permanency is interrupted by a private custody case initiated by a member of the child’s family. To ensure legal protection for the parents, the court suggests a method of handling FD non-dissolution complaints when they are heard in the midst of FN abuse or neglect litigation. The FD hearing should be incorporated into the FN litigation and attorneys for the parents and children should participate. The court does not reverse here because the mother consented to the result. The court also affirms the finding of educational neglect and the dismissal of the FN litigation despite the objection of the mother. 

EMPOWER OUR NEIGHBORHOODS VS. KIMBERLY GUADAGNO, ET AL. A-0330-15T3/

EMPOWER OUR NEIGHBORHOODS VS. KIMBERLY GUADAGNO, ET AL. 

A-0330-15T3/A-0331-15T3/A-0333-15T3(CONSOLIDATED) 

Empower Our Neighborhoods (EON), a community based advocacy group, partially succeeded on an election law claim. They obtained a judgment eliminating the district residency requirements, pursuant to Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), for circulators of: recall petitions, petitions nominating independent candidates in general elections, petitions selecting candidates from local parties, and petitions nominating Board of Education members. The court affirmed Judge Mary Jacobson's decision that EON's success was sufficient to merit the award of counsel fees, apportioned among the defendants based on the extent of their responsibility for the constitutional tort. 

T.L. AND M.L. VS. JACK GOLDBERG, M.D., ET AL. A-5544-14T1

T.L. AND M.L. VS. JACK GOLDBERG, M.D., ET AL. 

A-5544-14T1 

In this medical malpractice action, defendant's trial testimony concerning reliance on a medical publication in treating plaintiff was materially different from his denial during discovery of any knowledge of such literature. The court's majority holds defense counsel's failure to discharge his duty of candor to the court and counsel by disclosing the anticipated material change in defendant's testimony resulted in plain error, and the trial court erred by denying plaintiff's motion for a new trial. 

The dissent concludes counsel's failure to object to defendant's testimony was part of a deliberate trial strategy, as the publication at issue supported plaintiffs' theory of the case. Considered in the context of the extensive expert testimony presented during a lengthy trial, defendant's testimony about the medical article did not constitute plain error, and the trial court did not err by so holding when it denied plaintiff's motion for a new trial. 

MARIANA A. BAEZ, ETC. VS. JIMMY M. PAULO, M.D., ET AL. A-3742-16T3

 MARIANA A. BAEZ, ETC. VS. JIMMY M. PAULO, M.D., ET AL. 

A-3742-16T3 

In this medical malpractice case, the trial court ruled the fictitious pleading process under Rule 4:26-4 did not justify plaintiff's addition of three defendant physicians to the lawsuit after the statute of limitations had run. Nevertheless, the court equitably estopped the physicians from obtaining dismissal of the claims against them, finding they had had unduly delayed in moving for such dispositive relief after about a year of costly discovery had occurred. 

The panel reverses the trial court's fictitious pleading ruling as to one of the three co-defendants, because decedent's hospital records did not legibly reveal that particular doctor's name and involvement in decedent's care. It was unreasonable to expect plaintiff to have ascertained that particular doctor's identity and negligent conduct until her counsel received a post-suit affidavit from the defense clarifying which doctors had actually been involved in treating decedent. 

The panel affirms the trial court's fictitious pleading ruling as to the other two co-defendants. Plaintiff could have reasonably ascertained the respective identities and involvement of those two doctors who took part in decedent's care. 

As an important caveat, the panel allows plaintiff's claims to proceed against those two doctors to the extent they may have acted as the decedent's "attending physician." The hospital records misleadingly and erroneously identified a different doctor, who was actually on vacation at the time, as decedent's attending physician. 

Lastly, the panel overturns the court's application of principles of equitable estoppel. In the absence of a case management order or court rule prescribing an earlier deadline for filing such a motion, or an express misrepresentation made to plaintiff, defendants did not forfeit their rights to file a limitations-based dismissal motion near the end of the discovery period. 

NEW BRUNSWICK MUNICIPAL EMPLOYEES ASSOCIATION VS. CITY OF NEW BRUNSWICK A-1041-16T2

 NEW BRUNSWICK MUNICIPAL EMPLOYEES ASSOCIATION VS. CITY OF NEW BRUNSWICK 

A-1041-16T2 

The court affirms the Public Employment Relations Commission's ruling that the contribution rates included in the Pension and Health Care Benefits Act (Chapter 78) L. 2011, c. 78, N.J.S.A. 52:14-17.28c, which top out at thirty-five percent, do not preempt the provision in the parties' contract requiring eligible retirees to contribute fifty percent of the costs of their health care coverage. 

NEW GOLD EQUITIES CORP. VS. JAFFE SPINDLER COMPANY, ET AL A-0200-15T1

NEW GOLD EQUITIES CORP. VS. JAFFE SPINDLER COMPANY, ET AL 

A-0200-15T1 

The court affirmed a judgment finding an indenture trustee's duties are limited to the obligations spelled out in the bond documents, and to associated non-discretionary ministerial functions. Accordingly, the indenture trustee had no duty to advise the mortgagor regarding the deferred interest provision in the bond documents. Furthermore, the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, did apply, and since the mortgagor's lack of familiarity with the terms of the financing agreement constituted negligence greater than that of the bank, the mortgagor could not recover against the bank. Finally, the bank was not entitled to counsel fees it incurred when defending against claims of its own ordinary negligence. 

ESTATE OF DAVID ERIC YEARBY, ET AL. VS. MIDDLESEX COUNTY, ET AL. A-2477-16T2

ESTATE OF DAVID ERIC YEARBY, ET AL. VS. MIDDLESEX COUNTY, 

ET AL. 

A-2477-16T2 

An alleged mentally ill man died strapped to a "restraint chair" in the Middlesex County Adult Correctional Facility, approximately twenty-four hours after he was arrested for assault and resisting arrest. Decedent's estate filed a multi-count civil suit against a number of public entities and their employees, including three nurses employed by the Correctional Facility. The trial court granted the nurses' unopposed motion to dismiss with prejudice the counts in the complaint alleging professional malpractice based on plaintiffs' failure to file a timely Affidavit of Merit (AOM). Represented by different counsel, plaintiffs argued they were entitled to serve the AOM 107 days after the expiration of the maximum statutory period based on the equitable doctrine of substantial compliance and "extraordinary circumstances." The court agreed and vacated the dismissal with prejudice. 

CUSTOMERS BANK VS. REITNOUR INVESTMENT PROPERTIES, LP, ET AL. A-0920-16T3

CUSTOMERS BANK VS. REITNOUR INVESTMENT PROPERTIES, LP, 

ET AL. 

A-0920-16T3 

In this mortgage foreclosure action, the trial court declared the foreclosure judgment satisfied and ordered plaintiff to refund an overpayment to defendant. Plaintiff appealed, arguing the trial court abused its discretion in finding equitable redemption by a third-party which was not a borrower or guarantor of the loan, and had no property interest in the mortgaged premises. Plaintiff also argued the trial court abused its discretion by not enforcing the cross-collateralization clause and by not precluding redemption under the doctrine of unclean hands. 

Pursuant to the merger doctrine, the panel held plaintiff is precluded from demanding payment of the aggregate loan balance under a cross-collateralization clause beyond the amount reflected in the foreclosure judgment. The merger doctrine also precluded enforcement of restrictions imposed in the note's prepayment clause. 

Since plaintiff retained, deposited, and threatened to apply the allegedly unacceptable check to the balances owed on the other cross-collateralized loans in its sole discretion, rather than returning the check to the payor, the panel held plaintiff had accepted the payment, thereby satisfying the loan and foreclosure judgment. In light of this ruling, the panel did not reach the issue of whether the payor could redeem the property. 

Finally, the panel held that defendants were not guilty of unclean hands merely because they had defaulted. 

Landlord here not liable for dog bite by tenant's dog page1image3880 WENDY L. FAIRCLOTH, v. JEREMY BEVILLE

Landlord here not liable for dog bite by tenant's dog             

WENDY L. FAIRCLOTH,

v.
JEREMY BEVILLE and PAM BEVILLE,

     Defendants,
and

NEAL OWENS,

     Defendant-Respondent.
____________________________________

Submitted October 4, 2017 – Decided February 13, 2018

          Before Judges Manahan and Suter.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0009-15.

    NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." 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.PER CURIAM

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0447-16T1

Plaintiff Wendy Faircloth appeals from an August 2016 order granting summary judgment to defendant Neal Owens (defendant) that dismissed with prejudice her claim for personal injuries from a dog bite. We affirm. We rely on the facts from the summary judgment record, viewing them in a light most favorable to the plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The facts are not in dispute.
On January 21, 2013, plaintiff was visiting her friends, defendants Jeremy and Pam Beville, at their residence when she was bitten in the face by the Bevilles' dog, Pepper. Pepper was a Dutch Sheppard that had been given to the Bevilles in 2009 when the dog was two or three years old. Pepper had not bitten anyone previously.
The Bevilles leased their residence from defendant with an option to purchase it. The parties agree that the lease did not prohibit pets.
Defendant did not know about Pepper or anything about its behavior. On one occasion in 2003, he did see Pam Beville holding a small white dog when he was at the property, but that dog was not Pepper. Defendant rarely was at the property when the Bevilles resided there.

2

A-0447-16T1

Plaintiff sued defendant and the Bevilles for personal injuries arising from the dog's bite. The Bevilles declared bankruptcy, and plaintiff's claim against them was discharged.
In August 2016, defendant's motion for summary judgment was granted, which dismissed plaintiff's complaint with prejudice. The trial court held that defendant was not liable because he did not have notice that the dog was "problematic or likely to injure a party." The court rejected plaintiff's request to expand liability because that would be imposing "strict liability on the owner of the property, if there's no other indications that this particular dog is problematic."
On appeal, plaintiff contends the trial court erred in granting summary judgment. She argues, the current state of the law regarding landlord liability for dog bites is not consistent with premises liability law.
Our review of the summary judgment order is de novo, meaning that we apply the same standards used by the trial judge. W.J.A. v. D.A., 210 N.J. 229, 237 (2012). The question then is whether the evidence, when viewed in a light most favorable to the non- moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact or whether the evidence "is so one-sided that one party must prevail as a matter of law."

3

A-0447-16T1

Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
"Under the common law, ordinarily a landlord is not responsible for injuries caused by its tenant's dog." Hyun Na Seo v. Yozgadlian, 320 N.J. Super. 68, 71 (App. Div. 1999) (citing Cogsville v. Trenton, 159 N.J. Super. 71, 74 (App. Div. 1978)). However, beginning with Linebaugh v. Hyndman, 213 N.J. Super. 117, 120 (App. Div. 1986), we held there were circumstances where a landlord could be liable for injuries caused by a tenant's dog. The landlord in Linebaugh was aware that one of the tenants owned a large German Shepherd that had previously bitten another person. A child playing in the shared common area of the rented duplex was seriously injured when she was bitten by the dog. We held that "[a]n abnormally [vicious] domestic animal is like an artificial [dangerous] condition on the property." Id. at 121 (quoting DeRobertis v. Randazzo, 94 N.J. 144, 157 (1983)). We stressed that the landlord's liability was "well within traditional principles of negligence law." Id. at 122. A landlord could be held liable where he permitted a tenant to harbor a vicious animal and failed to take curative measures.
In Hyun, we declined to impose liability on a landlord. There, a tenant was bitten by another tenant's dog and sued the landlord. 320 N.J. Super. at 71. We again determined that the

4

A-0447-16T1

landlord's liability was based on "ordinary principles of negligence," holding that "in the absence of proof that the landlord was aware of the dog's vicious propensities, or perhaps that the dog was inherently vicious, liability should not be imposed upon the landlord." Id. at 72.
Here, defendant was not aware that the Bevilles owned Pepper and did not know whether the dog had bitten anyone else or had violent propensities. Under the existing case law, the landlord had no liability for injuries caused by the Bevilles' dog. Summary judgment was correctly entered.
Plaintiff contends that we should expand the landlord's liability to impose liability consistent with "premises liability law," citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) and Monaco v. Hartz Mt. Corp. 178 N.J. 410 (2004) to support her proposition. In Monaco, the Court held that a landlord of a commercial premises had a duty to make reasonable inspections of its property and to warn invitees of hazardous conditions. 178 N.J. at 418. In Hopkins, the Court determined that real estate brokers had a duty to inspect and warn of dangerous conditions of the property for visitors at an open house. 132 N.J. at 444-45.
Plaintiff contends that "animals can be considered hazards and hazards should be discovered by landlords." She suggests that the landlord's duty to guests of a tenant should be expanded to

5

A-0447-16T1

protect and insure against this harm. We decline to extend a landlord's liability as suggested by plaintiff. The effect would be to make landlords strictly liable for their tenants' pets whether or not they were aware of any known violent propensities. The legislature did not impose that obligation on landlords. See N.J.S.A. 4:19-16 (addressing the strict liability for dog owners). Further, the imposition of strict liability upon landlords under this scenario is without precedent as our courts have consistently evaluated the liability of a landlord under general negligence principles.
In sum, plaintiff provides no evidence or analysis that would cause us to revisit Hyun to include, as she suggests, an obligation to inquire about the danger of every dog kept by every tenant and then to insure the guests of tenants against injuries, even where the dog is not known to have violent propensities.
Affirmed.

6

A-0447-16T1 

Complaint barred here where filed after two year statute of limitation Plaintiff-Appellant, v. JOHN B. DELBENE,

           Complaint barred here where filed after two year statute of limitation     

     Plaintiff-Appellant,

v.
JOHN B. DELBENE,

     Defendant-Respondent.
____________________________

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1648-16T2

Argued November 27, 2017 – Decided February 16, 2018

          Before Judges Accurso and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-0960-16.

 NOT FOR PUBLICATION WITHOUT THE

               APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 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.

JOSEPH HUTCHKO,PER CURIAM
Plaintiff Joseph Hutchko appeals from an order dismissing his
complaint because it was filed one day beyond the two-year statute of limitations for a personal injury action. See N.J.S.A. 2A:14-

2(a). Because we are convinced the record is bereft of any evidence that plaintiff was induced or tricked into filing his complaint outside of the limitations period, we affirm.
I.
On August 1, 2014, plaintiff was injured in an automobile
accident which he alleges in the complaint was caused by defendant John B. Delbene's negligence. On September 9, 2014, plaintiff's counsel sent a letter of representation to defendant's insurance carrier, New Jersey Manufacturers Insurance Company (NJM). In response, NJM requested that counsel provide medical reports and other information related to plaintiff's claim, and advised plaintiff's cooperation was expected if an independent medical examination (IME) became necessary.
On April 6, 2015, NJM sent plaintiff's counsel a letter, again requesting information concerning plaintiff's status and copies of medical bills and records. Plaintiff's counsel did not respond to the request. Almost one year later, in March 2016, NJM sent a letter to plaintiff's counsel requesting the same information and renewing its request for copies of plaintiff's medical bills and reports.
By letter dated May 12, 2016, plaintiff's counsel provided NJM with insurance information, medical bills and reports, as well as other information related to the accident and plaintiff's

2

A-1648-16T2

injuries. The letter also included a monetary settlement demand. On May 20, 2016, an NJM's claims adjuster told plaintiff's counsel that plaintiff's demand "would not be evaluated without an [IME] due to issues pertaining to the verbal threshold." On the same day, plaintiff's counsel advised NJM he was filing a complaint in Camden County.
Three days later, NJM wrote to Dr. Larry Rosenberg, requesting that he conduct plaintiff's IME. The letter was also sent to plaintiff's counsel. The IME was scheduled for July 20, 2016. NJM requested that Dr. Rosenberg provide NJM with a typed report no later than ten days after the IME.
Dr. Rosenberg notified NJM that the IME needed to be rescheduled. On June 23, 2016, NJM sent correspondence to Dr. Rosenberg and plaintiff's counsel advising the IME had been rescheduled for August 5, 2016. Plaintiff's counsel received the letter, but there were no further communications between plaintiff's counsel and NJM until August 2, 2016, one day after the statute of limitations expired.
On August 2, 2016, a new claims adjuster from NJM called plaintiff's counsel and asked if a complaint had been filed.1 Later that day, plaintiff's counsel filed a one-count complaint

1
concerning what was said during the conversation.

The record does not include any additional information

3

A-1648-16T2

alleging defendant's negligence caused the accident and plaintiff's injuries. The following day, NJM cancelled plaintiff's August 5, 2016 IME because a complaint had been filed.
Defendant moved to dismiss the complaint, arguing plaintiff's claim was barred by the statute of limitations. In opposition, plaintiff relied on his counsel's certification, which averred that because NJM did not deny coverage or plaintiff's claim during the limitations period, he was led to believe efforts to resolve the case would continue after the IME. Defendant submitted an affidavit from Sharon O'Brien, a supervisor in NJM's bodily injury department. O'Brien represented NJM's records reflected that on May 20, 2016, plaintiff's counsel said he "would be filing suit in Camden County." She also stated NJM never indicated the matter would be settled, the July 20, 2016 IME was rescheduled at Dr. Rosenberg's request and, following the rescheduling of the IME, there were no further communications with plaintiff's counsel until after the statute of limitations expired.
The court heard oral argument and granted the dismissal in a written opinion and order. The court rejected plaintiff's claim he was entitled to equitable tolling of the statute of limitations. The court found "NJM's conduct was not sufficient to lull plaintiff into a reasonable belief that the complaint did not have to be filed within the . . . two year statute of limitations," and the

4

A-1648-16T2

rescheduling of the IME beyond the limitations period "without more, was not sufficient to excuse plaintiff from meeting [his] . . . obligation to" timely file suit. The court found no evidence the IME was rescheduled to "trick the plaintiff or . . . lull him into not filing suit."2

2

On appeal, plaintiff presents the following arguments:
     POINT A

THE TRIAL [COURT] ERRED IN HOLDING THAT PLAINTIFF JOSEPH HUTCHKO WAS NOT ENTITLED TO AN EQUITABLE TOLLING OF THE [STATUTE] OF LIMITATIONS SINCE DEFENDANT'S INSURANCE CARRIER LULLED PLAINTIFF INTO A FALSE SENSE OF SECURITY BY CONDUCT SUGGESTING THAT THE CLAIM IN QUESTION COULD BE AMICABLY SETTLED WITHOUT THE NECESSITY OF LITIGATION.
POINT B
THE TRIAL COURT'S RELIANCE ON UNPUBLISHED DECISIONS OF THE APPELLATE DIVISION AS PRINCIPAL SUPPORT FOR GRANTING THE MOTION TO DISMISS VIOLATED R. 1:36-3.

The court relied upon, cited, and attached a compendium of unreported Appellate Division decisions supporting the dismissal. In doing so, the court erred by failing to comply with the prohibition contained in Rule 1:36-3 against citing unpublished opinions. "[A]s a general matter, unpublished opinions are not to be cited by any court absent certain specified circumstances" set forth in Rule 1:36-3. Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012). No special circumstances are extant here. We discern no reason to further address the court's error, however, because we review the court's decision de novo and without reliance on any unpublished decisions.

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A-1648-16T2

II.
Although defendant filed a motion to dismiss the complaint
for failure to state a claim upon which relief may be granted, see R. 4:6-2(e), and the court entered an order dismissing the complaint, we consider the order as one granting summary judgment because the court considered facts beyond those alleged in the complaint, see R. 4:6-2(e) (providing that a motion to dismiss for failure to state a claim shall be treated as one for summary judgment where "matters outside the pleading are presented to and not excluded by the court"). We therefore review the court's order de novo, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We determine whether the defendant, as the moving party, has demonstrated the absence of genuine issues of material fact, and whether the trial court correctly determined defendant was entitled to judgment as a matter of law, owing no deference to the trial court's legal conclusions. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div. 2015).
It is not disputed the complaint was filed one day after the two-year limitations period applicable to personal injury actions. See N.J.S.A. 2A:14-2(a). Plaintiff argues, however, that the complaint was timely filed because NJM's conduct equitably tolled the statute of limitations. We disagree.

6

A-1648-16T2

Statutes of limitations "are based on the goals of achieving security and stability in human affairs and ensuring cases are not tried on the basis of stale evidence." Zaccardi v. Becker, 88 N.J. 245, 256 (1982). "Consistent with that purpose, 'where defendants are on notice of the claims, and no significant prejudice results, the policy reasons for upholding a strict statute of limitations recede.'" Price v. N.J. Mfrs. Ins. Co., 182 N.J. 519, 524 (2005) (quoting W.V. Pangborne & Co., Inc. v. N.J. Dep't of Transp., 116 N.J. 543, 563 (1989)). Thus, "[f]lexible applications of procedural statute of limitations may be based on equitable principles, such as the discovery rule, or estoppel." Id. at 524-25 (internal citation omitted).
"[T]he doctrine of equitable tolling of limitations periods has been applied only in narrowly-defined circumstances." R.A.C. v. P.J.S. Jr., 192 N.J. 81, 100 (2007). For example, equitable tolling has been applied where "the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Binder v. Price Waterhouse & Co., LLP, 393 N.J. Super. 304, 312 (App. Div. 2007) (quoting Freeman v. State, 347 N.J. Super. 11, 31 (App. Div. 2002)).
"Absent a showing of intentional inducement or trickery by a defendant, the doctrine . . . should be applied sparingly and only in the rare situation where it is demanded by sound legal

7

A-1648-16T2

principles and in the interest of justice." Id. at 313 (citation omitted). "Equitable tolling 'requires the exercise of reasonable insight and diligence by a person seeking its protection,'" ibid. (quoting Villalobos v. Fava, 342 N.J. Super. 38, 52 (App. Div. 2001)), because even though "it 'affords relief from inflexible, harsh or unfair application of a statute of limitations,' [it] does not excuse claimants from exercising the reasonable insight and diligence required to pursue their claims," ibid. (alteration in original) (quoting Freeman, 347 N.J. Super. at 31).
In Price, 182 N.J. at 525-26, the Court held that the carrier, NJM, could not rely on the statute of limitations to bar the plaintiff's uninsured motorist claim, after it received early notice from plaintiff of the claim, and thereafter sought and received from plaintiff various information necessary to evaluate plaintiff's claim over the course of several years. The Court concluded that "the record amply supports the trial court's finding that NJM's conduct lulled plaintiff and his counsel into believing that the [UM] claim had been properly filed. Plaintiff reasonably relied on NJM's conduct in failing to file a complaint or to request arbitration within the statute of limitations period." Id. at 527.
NJM's conduct here does not fall within the narrowly-defined circumstances permitting equitable tolling of the limitations

8

A-1648-16T2

period. To the contrary, NJM diligently requested information concerning plaintiff's alleged injuries and medical records in September 2014 and advised plaintiff an IME might be required to evaluate his claim. It was not until May 2016, however, that NJM was first provided with the requested information and records. NJM thereafter immediately scheduled the IME, which was then rescheduled based solely on Dr. Rosenberg's request.
During the limited communications between NJM and plaintiff's counsel, NJM stated only that it needed the requested information to "evaluate" plaintiff's claim. NJM and plaintiff's counsel never engaged in settlement discussions, NJM never said plaintiff should not file a complaint, and NJM made no commitment the matter would be settled without the need for filing a timely complaint. Plaintiff's counsel does not dispute NJM's assertion that on May 20, 2016, he advised NJM he intended to file a complaint in Camden County. Thus, NJM had reason to believe plaintiff would file a complaint; plaintiff's counsel told NJM so.
We find no evidence NJM engaged in trickery by rescheduling the IME. To the contrary, the IME was rescheduled solely at Dr. Rosenberg's request. There is no evidence the IME was rescheduled to take advantage of the looming expiration of the limitations period.

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In plaintiff's counsel's opposition to the dismissal motion, he claims only that it was NJM's failure to deny plaintiff's "claim or disclaim coverage during the limitations period . . . [that] led him to believe that efforts to resolve the matter before engaging in litigation would continue after [p]laintiff's IME." In his certification, however, plaintiff's counsel acknowledges that on May 20, 2016, the NJM claims adjuster advised him that the settlement demand "would not be evaluated without an [IME] due to issues pertaining to the verbal threshold." Thus, NJM did advise plaintiff's counsel during the limitations period of its position concerning plaintiff's claim.3
Plaintiff's counsel knew on May 20, 2016, NJM would not make a decision on the claim until after the IME and, on the same day, he told the claims adjuster suit would be filed in Camden County. Thereafter, the only communications between plaintiff's counsel and NJM prior to the expiration of the limitations period concerned
3

We observe that any purported failure of NJM to make a final decision on plaintiff's claim within the limitations period was the result of the long-delayed delivery of plaintiff's medical records and insurance information. As noted, NJM first requested the records and information in September 2014, but plaintiff did not provide them until May 2016. NJM then immediately scheduled the IME, which it advised at the outset might be required to evaluate plaintiff's claim. Cf. Price, 182 N.J. at 527 (finding equitable tolling where carrier had all of the requested and necessary medical information but failed to deny plaintiff's claim or coverage during the limitations period).

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the scheduling of the IME. We find nothing in those communications or any action by NJM, however, that could have reasonably lulled or induced plaintiff into believing he was relieved of his burden of filing a timely complaint. See Binder, 393 N.J. Super. at 312.
In any event, the mere fact that settlement discussions might have followed the expiration of the limitations period does not support a finding of equitable tolling. "A claim must be commenced by filing a complaint and is not commenced by writing letters or negotiating with one's adversary." Mortara v. Cigna Prop. & Cas. Ins. Co., 356 N.J. Super. 1, 3-4 (App. Div. 2001), aff'd o.b., 174 N.J. 566 (2002). It was plaintiff's burden to file his complaint within the limitations period. Cruz-Diaz v. Hendricks, 409 N.J. Super. 268, 279 (App. Div. 2009). Plaintiff simply failed to do so here.
Affirmed.

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