March 25, 2011
PHILIP E. HAHN, PLAINTIFF-APPELLANT,
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, AND MARCO ZARBIN, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3267-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 16, 2011
Before Judges Cuff and Fasciale.
Plaintiff Philip E. Hahn appeals from an April 30, 2010 order denying his motion to conform the pleadings to the evidence. We affirm.
Plaintiff filed his first complaint under docket number L-3267-07 relating to eye surgery on June 1, 2005. The court dismissed the complaint for failure to file a notice of claim, as required by N.J.S.A. 59:8-3. We affirmed that dismissal, Hahn v. Univ. of Med. & Dentistry of N.J., No. A-3815-07 (Jan. 26, 2009), and the Supreme Court denied plaintiff's petition for certification, 199 N.J. 128 (2009). After the Supreme Court denied certification, plaintiff filed this motion.
Meanwhile, Plaintiff filed a second complaint under docket number L-3063-08 concerning the same surgery. The trial court held that res judicata and the entire controversy doctrine barred that action. The trial court also held that plaintiff failed to move for an extension of time pursuant to N.J.S.A. 59:8-9, and failed to file his complaint by the two-year limitation period provided by N.J.S.A. 2A:14-2a. We affirmed that dismissal, Hahn v. University of Medicine & Dentistry of New Jersey, No. A-4216-08 (March 22, 2010), and the Supreme Court denied certification, 204 N.J. 36 (2010).
Rule 4:9-2 is not a post-judgment remedy. Rather, it is a remedy available to the parties during trial. It allows pleadings to conform to evidence when issues are not raised in the pleadings and are tried by consent or without objection. If a party objects to the evidence at trial, then the court may still amend the pleadings to conform to the evidence so long as the objecting party is not prejudiced. Ibid. Here, plaintiff invoked this trial procedure to amend a dismissed complaint affirmed on appeal. The relief sought in plaintiff's motion is not authorized by the rule.
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