FRANCIENNA GRANT VS. DANILO G. YBANEZ (L-0470-16, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0911-17T1

FRANCIENNA GRANT,

Plaintiff-Appellant,

v.

DANILO G. YBANEZ, DMD,
and DANILO G. YBANEZ,
DMD, LLC,

Defendants-Respondents.
__________________________

Submitted March 4, 2019 – Decided March 28, 2019

Before Judges Sumners and Mitterhoff.

On appeal from Superior Court of New Jersey, Law
Division, Cape May County, Docket No. L-0470-16.

Francienna Grant, appellant pro se.

Crammer, Bishop & O'Brien, attorneys for respondents
(Timothy B. Crammer, on the brief).

PER CURIAM
 Plaintiff Francienna Grant appeals from the Honorable J. Christopher

Gibson, J.S.C.'s, order granting summary judgment to defendants Danilo G.

Ybanez, D.M.D., and Danilo G. Ybanez D.M.D., LLC, and dismissing plaintiff's

medical malpractice complaint with prejudice. We affirm.

We recite the relevant facts and procedural history from the record.

Plaintiff filed a complaint against defendants alleging medical malpractice in

the Superior Court of New Jersey, Law Division, Special Civil Part on January

28, 2016. On March 4, 2016, defendants filed their answer. Plaintiff

subsequently filed a motion to transfer the case to the Law Division and file an

amended complaint, which the trial court granted on August 25, 2016. Due to a

clerical error, the amended complaint was not filed until November 22, 2016.

On November 30, 2016, plaintiff filed a motion to enter default based on

defendants' failure to timely file an answer to the amended complaint. On the

same date, plaintiff provided an "affidavit . . . pursuant to [N.J.S.A.] 2A:53A-

28" because "defendant Danilo G. Ybanez fail[ed] to comply with rules of

discovery which hindered the plaintiff from progressing [sic] an additional

affidavit of merit[.]"1 Defendants filed a motion to dismiss the complaint based

on plaintiff's failure to timely file an affidavit of merit on December 15, 20 16.

1
There is no indication on the affidavit that it was filed with the trial court.
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 On February 24, 2017, the trial court entered an order denying plaintiff's

November 30, 2016 motion to enter default because the time for defendants to

file an answer had not elapsed. The trial court also denied defendants' motion

to dismiss the complaint based on plaintiff's failure to file an affidavit of merit

because the time to file had not yet elapsed. The trial court gave defendants

until March 31, 2017 to file an answer, and the answer was filed on March 22,

2017.

On April 10, 2017, plaintiff filed a motion for reconsideration of the

February 24, 2017 order, to strike any filings subsequent to February 24, 2017

for lack of jurisdiction, to enter default, and to enter default judgment against

defendants. Defendants filed opposition to plaintiff's motion on May 5, 2017.

On May 8, 2017, defendants filed a motion to dismiss plaintiff's complaint

without prejudice based on plaintiff's failure to timely answer interrogatories.

On June 29, 2017, the trial court denied plaintiff's April 10 motion in its

entirety. On the same day, the trial court granted defendants' motions to dismiss

plaintiff's complaint without prejudice.

On July 17, 2017, plaintiff filed a motion for leave to appeal the trial

court's June 29 denial of her motion for reconsideration. We denied plaintiff's

motion on August 11, 2017.

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 Defendants filed a motion for summary judgment on July 21, 2017 due to

plaintiff's continued failure to timely serve an affidavit of merit.

On August 28, 2017, plaintiff filed several motions in the Appellate

Division, including a motion to extend the time to file a notice of appeal.

On September 12, 2017, the trial court granted defendants' motion for

summary judgment based on the plaintiff's failure to timely serve an affidavit of

merit and dismissed plaintiff's complaint with prejudice.

On October 26, 2017, we granted plaintiff's motion to extend the time to

file a notice of appeal and ruled that plaintiff's August 28 motion was converted

to a notice of appeal and was considered timely.

On December 29, 2017, plaintiff filed a motion with this court to "strike"

the trial court's September 12, 2017 grant of summary judgment. Plaintiff

argued that the trial court lacked subject matter jurisdiction to grant summary

judgment. Her motion also sought additional relief, including a request to

amend her notice of appeal to include the order granting summary judgment.

On February 8, 2018, we granted plaintiff's motion to amend her appeal, but

denied all other requested relief.

On this appeal, plaintiff seeks reversal of the trial court's June 29, 2017

order denying her motion for reconsideration, the trial court's June 29, 2017

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order dismissing her complaint without prejudice for failure to answer

interrogatories, and the trial court's September 12, 2017 order granting summary

judgment to defendant.

Having reviewed the record in light of the applicable legal principles, we

affirm substantially for the reasons expressed in Judge Gibson's well-reasoned

oral decision. We add only the following comments.

Plaintiff argues that the trial court lacked jurisdiction to grant summary

judgment because it previously dismissed her complaint without prejudice

pursuant to Rule 4:23-5(a)(1). We disagree.

Rule 4:23-5 provides for the dismissal of a complaint without prejudice if

a party fails to comply with discovery rules. R. 4:23-5(a)(1). The dismissal of

a complaint without prejudice is not an adjudication on the merits. See Czepas

v. Schenk, 362 N.J. Super. 216, 228 (App. Div. 2003) (citing O'Loughlin v. Nat'l

Cmty. Bank, 338 N.J. Super. 592, 603 (App. Div.), certif. denied, 169 N.J. 606

(2001)). Further, a dismissal of a complaint under Rule 4:23-5(a)(1) does not

dispose of the trial court's jurisdiction over the matter as the trial court maintains

jurisdiction to dismiss with prejudice if the party continues to fail to comply

with discovery rules. See R. 4:23-5(a)(2).

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 The requirement to serve an affidavit of merit is governed by N.J.S.A.

2A:53A-27, which provides in pertinent part:

In any action for damages for personal injuries,
wrongful death or property damage resulting from an
alleged act of malpractice or negligence by a licensed
person in his profession or occupation, the plaintiff
shall, within 60 days following the date of filing of the
answer to the complaint by the defendant, provide each
defendant with an affidavit of an appropriate licensed
person that there exists a reasonable probability that the
care, skill or knowledge exercised or exhibited in the
treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional or
occupational standards or treatment practices. The
court may grant no more than one additional period, not
to exceed 60 days, to file the affidavit pursuant to this
section, upon a finding of good cause.

The purpose of the requirement that plaintiffs provide an affidavit of merit

is to "identify and eliminate unmeritorious claims against licensed professionals

and to permit meritorious claims to proceed efficiently through the litigation

process." Meehan v. Antonelli, 226 N.J. 216, 229 (2016) (citing Hubbard v.

Reed, 168 N.J. 387, 395 (2001)). Our Supreme Court has recently held that a

party may not take advantage of a dismissal without prejudice to get more time

to file an affidavit of merit. See A.T. v. Cohen, 231 N.J. 337, 352 (2017). The

Court noted that allowing dismissal without prejudice to provide parties with

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more time "would prolong litigation and potentially eviscerate the [statute's]

policy of weeding out, early on, non-meritorious malpractice cases." Ibid.

An affidavit of merit is not required

if the plaintiff provides a sworn statement in lieu of the
affidavit setting forth that: the defendant has failed to
provide plaintiff with medical records or other records
or information having a substantial bearing on
preparation of the affidavit; a written request therefor
along with, if necessary, a signed authorization by the
plaintiff for release of the medical records or other
records or information requested, has been made by
certified mail or personal service; and at least 45 days
have elapsed since the defendant received the request.

[N.J.S.A. 2A:53A-28.]

A plaintiff's statement in lieu of affidavit of merit "require[s] a plaintiff to

identify with specificity any medical records or other information [s]he believes

are needed to prepare an affidavit of merit, in order to trigger the running of the

forty-five day period for a response." Scaffidi v. Horvitz, 343 N.J. Super. 552,

559 (App. Div. 2001).

In the instant matter, plaintiff did not submit an affidavit of merit. After

review of the record, it was found that she provided an affidavit that she

characterized as a statement in lieu of an affidavit of merit. However, plaintiff's

statement in lieu did not identify any documents that were needed in order to

prepare an affidavit of merit. Thus, plaintiff's statement in lieu does not meet

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the requirements to trigger an extension of time to file an affidavit of merit.

Accordingly, because plaintiff never filed an affidavit of merit, the trial court

did not err in granting summary judgment to defendants and dismissing

plaintiff's complaint with prejudice.

To the extent any arguments are not addressed herein, they are without

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

Affirmed.

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