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McConnell v. Ahmed

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 23, 2008

RUTH ANN MCCONNELL, PLAINTIFF-APPELLANT,
v.
MOHAMMED MUKHTAR AHMED, AND REGENCY GRANDE NURSING & REHABILITATION CENTER, DEFENDANTS, AND PRIME REHABILITATION SERVICES, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1537-04..

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 28, 2008

Before Judges A.A. Rodríguez and Kestin.

In her complaint, plaintiff, Ruth Ann McConnell, alleged that defendant Mohammad Mukhtar Ahmed (Ahmed) sexually assaulted her while she was a patient at a facility owned and operated by defendant Regency Grande Nursing and Rehabilitation Center (Regency). Ahmed, a certified occupational therapy assistant, was an employee of defendant Prime Rehabilitation Services, Inc. (Prime), which had been retained by Regency as a contractor. Eventually, Ahmed pled guilty to aggravated sexual assault and received a probationary sentence.

Plaintiff appeals from an order dated January 2, 2007, to the extent it granted summary judgment in favor of Prime. In that order, the trial court also denied Regency's motion for summary judgment in part. Subsequently, plaintiff's claim against Regency was settled; it was dismissed on the basis of a stipulation filed on March 27, 2007.

Neither party in this appeal discloses the disposition of plaintiff's independent tort claim for assault against Ahmed, set out in a single count of the thirteen-count complaint. Because plaintiff's filing of a notice of appeal must be taken to signify final disposition of the matter on the trial court level "as to all parties and all issues", Pressler, Current N.J. Court Rules, comment 2.2.2 on R. 2:2-3 (2008), we take it as established that any claim against Ahmed individually has been resolved in a manner from which plaintiff may not or elects not to appeal. In the future, plaintiff may well be judicially estopped from disclaiming the finality as to Ahmed that filing of this appeal connotes. See id., comment 2.2.4 on R. 2:2-3; cf. Ruscki v. City of Bayonne, 356 N.J. Super. 166, 168-69 (App. Div. 2002).

We note that, in Prime's brief on appeal, its attorney purports to represent Ahmed as well as Prime. All the arguments contained in the brief, however, bear upon Prime's liability only. It appears, therefore, that the indicated representation of Ahmed bears only upon issues of vicarious liability.

Judge Harper's reasons for granting Prime's motion for summary judgment were set out comprehensively and reflectively in a letter opinion bearing the same date as the order. He held that plaintiff was not entitled to judgment against Prime on any of the theories advanced: negligence in hiring and supervision, failure to protect, wanton and willful conduct, non-compliance with regulatory standards, vicarious liability, or breach of contract. We have studied the record in the light of the arguments advanced by the parties and are in substantial agreement with Judge Harper's reasons for decision as stated in his letter opinion of January 2, 2007.

Accordingly, the trial court's order is affirmed.

20080723

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