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Hahn v. University of Medicine and Dentistry of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 22, 2010

PHILIP E. HAHN, PLAINTIFF-APPELLANT,
v.
THE UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, IN NEWARK, NEW JERSEY AND MARCO ZARBIN, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3063-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 9, 2010

Before Judges Skillman and Gilroy.

Plaintiff appeals from a February 20, 2009 order of the Law Division dismissing his complaint and an April 17, 2009 order denying his motion for reconsideration. Plaintiff's arguments in support of this appeal are clearly without merit. R. 2:11- 3(e)(1)(E).

Plaintiff's cause of action relating to the eye surgery performed upon him on June 1, 2005 is the same cause of action he asserted in his prior complaint under L-3267-07. That prior complaint was dismissed based on plaintiff's failure to file a notice of claim, as required by N.J.S.A. 59:8-3. We affirmed the dismissal, Hahn v. Univ. of Med. & Dentistry of N.J., No. A-3815-07T3 (Jan. 26, 2009), and the Supreme Court denied plaintiff's petition for certification, 199 N.J. 128 (2009).

Although plaintiff relies upon a different legal theory in this action than in his prior action, the present action relates to the same June 1, 2005 eye surgery as the prior action.

Therefore, this action is barred by res judicata and the entire controversy doctrine.

In addition, although plaintiff submitted a notice of claim before filing this action, that notice was untimely, and plaintiff did not move under N.J.S.A. 59:8-9 for an extension of time. Plaintiff has not alleged any facts that could provide a basis for application of the discovery rule. Consequently, as in plaintiff's prior action, this action is barred by plaintiff's failure to file a timely notice of tort claim.

Moreover, it is also barred by the two-year limitation period provided by N.J.S.A. 2A:14-2.

Affirmed.

20100322

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