Nam v. Nelke

BRIEF in Opposition

D.N.J.May 22, 2017

Kathleen E. Walters, Esquire Attorney Identification No. 018342010 Higgins & Walters, LLC 26 North Sixth Street Stroudsburg, PA 18360 Tel. No. (570) 421-3830 Attorneys for Plaintiff Sung Bok Nam UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY SUNG BOK NAM : : Plaintiff : 3:16-CV-08632-PGS-TJB : v. : : Jury Trial Demanded MARK D. NELKE, D.M.D. : : Defendant : PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO N.J.S.A. 2A:53A-27 and 29 Case 3:16-cv-08632-PGS-TJB Document 14 Filed 05/22/17 Page 1 of 9 PageID: 87 TABLE OF CONTENTS TABLE OF CONTENTS………………………………………………………………………….i TABLE OF AUTHORITIES……………………………………………………………………..ii STATEMENT OF FACTS………………………………………………………………………..1 ARGUMENT A. Plaintiff’s Affidavit of Merit was timely served and therefore Plaintiff has stated a cause of action and dismissal is not warranted……………………………………….2 B. Assuming arguendo that Plaintiff’s Affidavit of Merit was not timely served, dismissal of Plaintiff’s complaint is not warranted because Plaintiff meets the requirements of the doctrine of substantial compliance……………………………...3 CONCLUSION…………………………………………………………………………………..6 i Case 3:16-cv-08632-PGS-TJB Document 14 Filed 05/22/17 Page 2 of 9 PageID: 88 TABLE OF AUTHORITIES Cases Balthazar v. Atlantic City Med. Ctr., 358 N.J.Super. 13 (App.Div.2003)………………………………………………………..3 Barreiro v. Morais, 318 N.J.Super. 461 (App.Div.1999)………………………………………………………3 Burns v. Belafsky, 166 N.J. 466 (2001)……………………………………………………………………….3 Ferreira v. Rancoca Orthopedic Assocs., 178 N.J. 144 (2003)…………………………………………………………………….3, 4 Fink v. Thompson, 167 N.J. 551 (2001)……………………………………………………………………….3 Galik v. Clara Maass Med. Ctr., 167 N.J. 341 (2001)…………………………………………………………………….3, 4 Mayfield v Cmty. Med. Assocs., P.A., 335 N.J.Super. 198 (App.Div.2000)……………………………………………………....3 Paragon Contractors Inc. v. Peachtree Condo Ass’n 202 N.J. 415422 (2010)………………………………………………………………...…3 Poetz v. Mix, 7 N.J. 436 (1951)………………………………………………………………………….2 Rules, Regulations and Statutes N.J.S.A. 2A:53A-27……………………………………………………………………………2, 3 N.J.S.A. 2A:53A-29……………………………………………………………………………….2 ii Case 3:16-cv-08632-PGS-TJB Document 14 Filed 05/22/17 Page 3 of 9 PageID: 89 STATEMENT OF FACTS Plaintiff filed a Complaint on November 18, 2016. Defendant filed an Answer on December 16, 2016. The 120-day statutory period within which Plaintiff was to serve an Affidavit of Merit ended on Sunday, April 16, 2017. Plaintiff served an Affidavit of Merit on Monday, April 17, 2017. 1 Case 3:16-cv-08632-PGS-TJB Document 14 Filed 05/22/17 Page 4 of 9 PageID: 90 ARGUMENT A. Plaintiff’s Affidavit of Merit was timely served and therefore Plaintiff has stated a cause of action and dismissal is not warranted. N.J.S.A. 2A:53A-27 requires a plaintiff in a malpractice action to serve an Affidavit of Merit no later than 120 days after the defendant has served an Answer. Furthermore, “[i]f the plaintiff fails to provide an affidavit…it shall be deemed a failure to state a cause of action.” N.J.S.A. 2A:53A-29. The New Jersey Supreme Court has held that statutory deadlines which fall on a Sunday or legal holiday are deemed timely filed if filed on the next business day. Poetz v. Mix, 7 N.J. 436 (1951). The Poetz Court stated that “it is well settled in this state that where, by statute, an act is due arithmetically on a day which turns out to be a Sunday or legal holiday, it may be lawfully performed on the following day…” Poetz, 7 N.J. 436, 445 (1951). In Poetz, the New Jersey Supreme Court set forth the above rule as applied to a statute of limitations deadline. The facts in the case were that the cause of action had accrued on July 16, 1947, the two year statute of limitation period established by statute ended on July 16, 1949, which was a Saturday, and the plaintiff had filed the complaint on July 18, 1947, which was the following Monday. The Poetz Court held that under these facts, the filing of the complaint was timely. In the case sub judice, the statutory deadline in which to serve the Affidavit of Merit “arithmetically” fell on Sunday, April 16, 2017. Plaintiff’s Affidavit of Merit was dated and served on April 17, 2017. Under the Poetz holding, the statutory deadline within which plaintiff was to serve the Affidavit of Merit was extended until the following day, Monday, April 17, 2017, and therefore Plaintiff’s Affidavit of Merit was timely served. 2 Case 3:16-cv-08632-PGS-TJB Document 14 Filed 05/22/17 Page 5 of 9 PageID: 91 B. Assuming arguendo that Plaintiff’s Affidavit of Merit was not timely served, dismissal of Plaintiff’s complaint is not warranted because Plaintiff meets the requirements of the doctrine of substantial compliance. N.J.S.A. 2A:53A-26 to 29 requires a plaintiff in a malpractice action to serve an Affidavit of Merit on a defendant within sixty days of the filing of an answer. N.J.S.A. 2A:53A-27. However, if provided within sixty-one to 120 days after the answer is filed, the affidavit will be deemed timely so long as (1) leave to file is sought and (2) good cause is established.” Paragon Contractors Inc. v. Peachtree Condo Ass’n, 202 N.J. 415422 (2010). (citing Burns v. Belafsky, 166 N.J. 466, 475-77 (2001)). If a plaintiff fails to provide the necessary affidavit by the 120- day deadline, and defense counsel subsequently files a motion to dismiss, “the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance and extraordinary circumstances do not apply.” Ferreira v. Rancoca Orthopedic Assocs., 178 N.J. 144, 154 (2003).” In fact, the 120-day period provided by statute “does not constitute a non-extendable barrier” if a plaintiff can show that an extension is warranted because of extraordinary circumstances. Balthazar v. Atlantic City Med. Ctr., 358 N.J.Super. 13, 26 (App.Div.2003) (citing Barreiro v. Morais, 318 N.J.Super. 461, 472 (App.Div.1999)). If a plaintiff took actions that substantially complied with the requirements of N.J.S.A. 2A:53A-27, a complaint should not be dismissed for a technical violation of the statute. Ferreira, 178 N.J. 144, 151. “The legislative purpose [of the statute] was not to ‘create a minefield of hyper- technicalities in order to doom innocent victims presenting meritorious claims’”. Ferreira, 178 N.J. 144, 151 (quoting Mayfield v Cmty. Med. Assocs., P.A., 335 N.J.Super. 198, 209 (App.Div.2000)); Fink v. Thompson, 167 N.J. 551 (2001); Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 359 (2001). 3 Case 3:16-cv-08632-PGS-TJB Document 14 Filed 05/22/17 Page 6 of 9 PageID: 92 The substantial compliance “doctrine requires the moving party to show: (1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner’s claim; and (5) a reasonable explanation why there was not strict compliance with the statute.” Ferreira, 178 N.J. 144, 151 (quoting Galik, 167 N.J. 341, 353, 347-48). In the case sub judice, Plaintiff has substantially complied with the requirements of the Affidavit of Merit statute. Applying the doctrine’s 5-prong test, the first prong is met, as Defendant is not prejudiced, as Defendant had the Plaintiff’s dental records prior to the filing of the complaint, including the dental records of Gary E. Burkhart, D.M.D., who provided the Affidavit of Merit. As such, Defendant had ample notice of the merits of Plaintiff’s assertions as to the professional negligence of Defendant. Moreover, in view of the “delay” being just one day, over a weekend, Defendant could not possibly be prejudiced. Secondly, Plaintiff took steps to comply with the statute by contacting Dr. Burkhart to prepare the Affidavit of Merit in February 2017, and by following up with the request prior to the 120-day deadline. Thirdly, Plaintiff generally complied with the purpose of the statute, which is to show a meritorious claim through the Affidavit of Merit. There has been no assertion by Defendant that the Plaintiff’s Affidavit of Merit does not meet the requirements of the statute or that it does not properly assert that Plaintiff has a meritorious claim. Fourth, Plaintiff has provided reasonable notice of his claim due to his having provided Dr. Burkhart’s dental records for Plaintiff on September 19, 2016, which was prior to the filing of Plaintiff’s Complaint on November 18, 2016. Fifth, Plaintiff has provided a reasonable explanation for not strictly complying with the statute, as the 120-day statutory deadline fell on a Sunday, and Plaintiff served the Affidavit the following 4 Case 3:16-cv-08632-PGS-TJB Document 14 Filed 05/22/17 Page 7 of 9 PageID: 93 business day, under the belief that rule governing computation of time, the deadline was extended until the next business day. Therefore, Plaintiff has demonstrated substantial compliance with the Affidavit of Merit statute, and as such, his Complaint should not be dismissed for a minimal technical violation of the statute. 5 Case 3:16-cv-08632-PGS-TJB Document 14 Filed 05/22/17 Page 8 of 9 PageID: 94 CONCLUSION Based on the foregoing, Plaintiff Sung Bok Nam respectfully requests that this Court deny Defendant Mark D. Nelke, D.M.D.’s Motion to Dismiss Plaintiff’s Complaint for Failure to State a Claim Pursuant to N.J.S.A. 2A:53A-29 and 29. Respectfully submitted, HIGGINS & WALTERS, LLC Dated: May 22, 2017 By: /s/ Kathleen E. Walters Kathleen E. Walters, Esquire Attorney Identification No. 018342010 26 North Sixth Street Stroudsburg, PA 18360 Tel. No. (570) 421-3830 Attorney for Plaintiff Sung Bok Nam 6 Case 3:16-cv-08632-PGS-TJB Document 14 Filed 05/22/17 Page 9 of 9 PageID: 95 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY SUNG BOK NAM : : Plaintiff : 3:16-CV-08632-PGS-TJB : v. : : Jury Trial Demanded MARK D. NELKE, D.M.D. : : Defendant : CERTIFICATE OF SERVICE I, Kathleen E. Walters, Esquire, do hereby certify as follows: 1. I am an Attorney-at-Law in good standing in the State of New Jersey and a Member of the law firm of Higgins & Walters, LLC, attorneys for the Plaintiff, Sung Bok Nam, in the above-captioned matter. 2. On May 22, 2017, Plaintiff’s Brief in Opposition to Defendant’s Motion to Dismiss Plaintiff’s Complaint for Failure to State a Claim Pursuant to N.J.S.A. 2A:53A-27 and 29 was electronically filed with the United States District Court for the District of New Jersey. 3. On May 22, 2017, a courtesy copy of Plaintiff’s Brief in Opposition to Defendant’s Motion to Dismiss Plaintiff’s Complaint for Failure to State a Claim Pursuant to N.J.S.A. 2A:53A-27 and 29 was sent via regular mail to the Honorable Peter G. Sheridan, U.S.D.J. and Defendant’s attorney, Robert T. Gunning, Esquire. I hereby certify that the foregoing statement made by me are true. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment. Dated: May 22, 2017 /s/Kathleen E. Walters Kathleen E. Walters, Esquire Case 3:16-cv-08632-PGS-TJB Document 14-1 Filed 05/22/17 Page 1 of 1 PageID: 96