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Puerta v. Novello

October 6, 2010

MARIA PUERTA, PLAINTIFF-APPELLANT,
v.
DENNIS NOVELLO AND MADELINE NOVELLO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3512-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 15, 2010

Before Judges Carchman and Parrillo.

Plaintiff Maria Puerta appeals from the order granting summary judgment and dismissing her personal injury claim for failure to comply with the treating physician permanency certification requirements of N.J.S.A. 39:6A-8(a). A motion to reconsider was similarly denied. We affirm.

The facts are simply stated. On February 14, 2006, plaintiff was injured when her vehicle was struck by a vehicle negligently operated by defendant Dennis Novello and owned by defendant Madeline Novello.*fn1 Plaintiff was treated by Richard Bossbally, D.C. and then Teofilo Duahajre, M.D. for her injuries. Despite repeated demands from plaintiff's counsel, Dr. Bossbally failed to provide either a report or copies of plaintiff's medical records. Dr. Duahajre did submit a report but failed to respond when requested to complete and execute a certification of permanency. In his report, Dr. Duahajre concluded that "[i]t is with a reasonable degree of medical probability that the patient has sustained residual permanency to her neck and lower back causally related to the motor vehicle accident of 2/14/06."

Unable to obtain the certification, plaintiff's counsel then referred plaintiff to Dr. Gregory Maslow who provided a counsel-prepared tort threshold certification on November 12, 2007, certifying that he was plaintiff's treating doctor. He further opined and certified that plaintiff suffered a permanent injury. He completed an extensive report dated November 12, 2007, and included references to the other physician's records. Apparently, a copy of the certification and report were forwarded to defense counsel within the same month. The matter proceeded through discovery and then arbitration resulting in an award to plaintiff. Following the November 6, 2008 arbitration award, defendant filed for a trial de novo.

On March 30, 2009, defendant conducted a de bene esse deposition of Dr. Maslow. Upon inquiry, the doctor stated that he had examined plaintiff once at the request of plaintiff's counsel and that he was not a treating physician. Within days, defendant filed a motion for summary judgment challenging Dr. Maslow's permanency certification. The motion judge granted the motion for summary judgment concluding that Dr. Maslow was not the treating physician, and plaintiff's suit could not proceed without the treating physician's certification. Plaintiff filed a motion for reconsideration, which was also denied. This appeal followed.

On appeal, plaintiff asserts that the judge erred in dismissing her complaint since she substantially complied with the statute. She further asserts that the doctrine of equitable estoppel applies as defendant unduly delayed raising the issue of Dr. Maslow's status as a treating physician until after discovery, arbitration and the fixing of a trial date. Finally, she claims that plaintiff is not subject to the verbal threshold.*fn2

The Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1.1 to -35 (AICRA), requires plaintiffs to "provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician." N.J.S.A. 39:6A-8a. The certification requirement is "procedural in nature related to the sufficiency of the pleadings" and is intended to combat fraud. Watts v. Camaligan, 344 N.J. Super. 453, 466-67 (App. Div. 2001).

N.J.S.A. 39:6A-8a provides in relevant part:

In order to satisfy the tort option . . . the plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician. [(Emphasis added).]

The statute further requires a statement of the injury and notes that the certification is executed under penalty of perjury and if knowingly false exposes the ...


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