TERRI NESPOLE VS. BIRCHWOOD NEIGHBORHOOD CONDOMINIUM ASSOCIATION (L-0156-15, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 4, 2019
• Docket: A-3633-17T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3633-17T4

TERRI NESPOLE,

Plaintiff-Appellant,

v.

BIRCHWOOD NEIGHBORHOOD CONDOMINIUM ASSOCIATION, INC., and TAYLOR MANAGEMENT COMPANY,

Defendants,

and

SUZANNE L. STEVINSON,

Defendant-Respondent. _________________________________

Submitted February 12, 2019 – Decided March 4, 2019

Before Judges Fisher and Geiger.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0156-15.

Franzblau Dratch, PC, attorneys for appellant (Shay S. Deshpande, on the brief). DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum, PC, attorneys for respondent (John J. Russo, on the brief).

PER CURIAM

In this action, plaintiff Terri Nespole sought personal injury damages as a

result of injuries allegedly sustained in a fall as well as in a later auto accident.

As for the latter incident, the judge determined, in ruling on a defense summary

judgment motion, that plaintiff's proofs, when viewed in the light most favorable

to her, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), were

insufficient to vault the verbal threshold, N.J.S.A. 39:6A-8(a). Consequently,

the judge dismissed the auto-accident part of the complaint. Plaintiff later

moved for reconsideration, relying on newly-obtained medical information. The

judge denied this motion as well, and plaintiff appeals, arguing the judge erred

in denying reconsideration. We disagree and affirm.

On February 13, 2013, plaintiff fell at the condominium association where

she lived and filed, nearly two years later, this action for personal injury

damages against defendants Birchwood Neighborhood Condominium

Association, Inc., and Taylor Management Company.1 On March 29, 2015, not

1 The fall-down aspect of the case was settled and the claims against the condominium association and the management company were dismissed with prejudice. A-3633-17T4 2 quite two months after filing her complaint, plaintiff was involved in an auto

accident with defendant Suzanne L. Stevinson (defendant); she moved nearly

eighteen months later and was permitted to amend her complaint to incorporate

a negligence claim against defendant, an action that was subject to the limitation

of liability provisions in plaintiff's auto insurance policy. Because of those

policy limits, plaintiff was required to prove one of the statutorily-delineated

circumstances, such as a permanent injury, which is defined as an injury to a

"body part or organ, or both, [that] has not healed to function normally and will

not heal to function normally with further medical treatment." N.J.S.A. 39:6A-

8(a). In support, a plaintiff must provide a qualified medical expert's opinion of

a permanent injury to a degree of medical probability based on "objective

credible evidence." DiProspero v. Penn, 183 N.J. 477, 495 (2005). And, when

alleging a prior condition was worsened or aggravated by an auto accident, a

plaintiff must provide evidence from a qualified medical expert that

differentiates the pre-existing injuries from those alleged to have been caused

by the auto accident. Davidson v. Slater, 189 N.J. 166, 170 (2007).

In granting summary judgment, the motion judge recognized that the

record disclosed that MRIs taken of plaintiff after the 2013 fall down but before

the 2015 auto accident revealed injuries, and he correctly observed that

A-3633-17T4 3 plaintiff's expert, Dr. Gregory Rihacek, failed to refer to objective medical

evidence in asserting that the auto accident aggravated those injuries. Instead,

as the judge noted in his written decision, the expert "simply claims that

[p]laintiff suffered a 'whiplash' injury in the auto accident [and] [a]bsent

reference to any objective findings, [the expert's] opinion that [p]laintiff

suffered 'whiplash' injuries and/or [sic] 'strains and sprains' is insufficient

evidence to vault the threshold."

The judge also observed in his written summary judgment opinion that

"during the pendency of this motion," he received a letter from plaintiff's counsel

asserting that another expert, Dr. Joseph Weber-Lopez, "diagnosed [plaintiff]

with a shoulder injury and opined that she had a fracture in her shoulder, which

appears to have been overlooked[,] [and which the expert] relates . . . to the [auto

accident]." The attorney also stated that Dr. Weber-Lopez "has requested an

MRI." The judge correctly chose not to consider this information. The assertion

of a shoulder fracture was late and not in adequate form. See R. 1:6-6; Higgins

v. Thurber, 413 N.J. Super. 1, 21 n.19 (App. Div. 2010), aff’d, 205 N.J. 227

(2011). Indeed, plaintiff does not argue here that the judge erred in granting

summary judgment.

A-3633-17T4 4 Instead, after entry of summary judgment, plaintiff moved for

reconsideration, relying on Dr. Weber-Lopez's certification that, in reliance on

a recent MRI, claimed he had diagnosed plaintiff with a shoulder fracture that

constituted, in his view, a permanent injury.

The judge denied reconsideration for reasons expressed in a written

opinion. In first viewing the matter as seeking "reconsideration" via Rule 4:49-

2, the judge correctly recognized that the granting of such a request rested in his

discretion and turned on whether the moving party could demonstrate the prior

decision was incorrect because the court had overlooked or failed to appreciate

the significance of probative, competent evidence. Cummings v. Bahr, 295 N.J.

Super. 374, 384 (App. Div. 1996). In fact, the evidence upon which plaintiff

sought to undermine the prior summary judgment was new, not something the

judge had "overlooked" or "misapprehended" because it had not been – by the

time summary judgment was granted – presented to the judge in proper fashion.

Even though plaintiff persists in couching the argument on appeal in

"reconsideration" terms, in fact what plaintiff sought in his last motion was relief

from the summary judgment in light of newly-discovered evidence – an

application permitted by Rule 4:50-1(b) (declaring that a court "may relieve a

party . . . from a final judgment or order for . . . newly discovery evidence which

A-3633-17T4 5 would probably alter the judgment or order and which by due diligence could

not have been discovered" by the time the previous ruling was made) – because

what she relied on was evidence not previously presented and only newly

obtained. Regardless of how a motion is identified, courts must endeavor to

apply the correct rule and standard when ruling. See Baumann v. Marinaro, 95

N.J. 380, 390 (1984); Midland Funding LLC v. Albern, 433 N.J. Super. 494, 498

n.3 (App. Div. 2013). The judge implicitly recognized this obligation when he

alternatively denied the motion because he found that plaintiff failed to meet the

requirements of a Rule 4:50-1(b) motion.

Disposition of a Rule 4:50-1 motion rests in the judge's sound discretion.

Housing Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). When based

on a claim of newly-obtained evidence, as Rule 4:50-1(b) states, the movant

must show that the new evidence is material, that it could not have been

discovered or obtained prior to the ruling challenged in the exercise of due

diligence, and that it would probably change the prior result. DEG, LLC v.

Township of Farifield, 198 N.J. 242, 264 (2009). Like the motion judge, we

focus on the second of these three requirements and find plaintiff's argument

wanting. Indeed, plaintiff made no attempt to provide an adequate explanation

for the delay in asserting the alleged shoulder fracture as the permanent injury

A-3633-17T4 6 needed to vault the verbal threshold. The record reveals, as we have noted, that

the auto accident occurred in March 2015; plaintiff first attempted to argue the

alleged shoulder fracture as a permanent injury in January 2018, during t he

pendency of a summary judgment motion and nearly three years after the

accident. Plaintiff had more than ample time to discover and produce evidence

of a permanent injury and was not diligent in gathering this information earlier.

Plaintiff's argument is without sufficient merit to warrant further

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-3633-17T4 7