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Assem A. Abulkhair v. Edward W. Boehm

June 4, 2012

ASSEM A. ABULKHAIR, PLAINTIFF-APPELLANT,
v.
EDWARD W. BOEHM, D.M.D., AND EDWARD W. BOEHM, P.A., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-225-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 15, 2012

Before Judges Yannotti and Espinosa.

Plaintiff Assem A. Abulkhair appeals from an order entered by the trial court on August 22, 2011, denying his motion for a new trial. We affirm.

Plaintiff was involved in an automobile accident on March 18, 1998, and in September 1999, he sought dental treatment from defendant, Edward W. Boehm, D.M.D. On February 4, 2008. Plaintiff filed a pro se complaint alleging that defendant had erroneously billed Medicaid rather than his insurance carrier for payment. Plaintiff alleged that, as a result of this error, his insurance carrier denied his claim for personal injury protection (PIP) benefits.

The trial court entered an order dismissing plaintiff's complaint because it had not been filed within the two years required by N.J.S.A. 2A:14-2, the statute of limitations applicable to tort actions. We reversed the trial court's order, concluding that the six-year statute of limitations in N.J.S.A. 2A:14-1 applied to plaintiff's claims. Abulkhair v. Boehm, No. A-3544-08 (App. Div. May 25, 2010).

On April 25, 2011, the trial court notified the parties that the case was scheduled for trial on June 27, 2011. On May 19, 2011, the court entered an order resolving certain discovery issues, and in a cover letter, reminded the parties that the case was scheduled for trial on June 27, 2011. The parties appeared for trial on that date, and plaintiff sought an adjournment of the trial. Plaintiff assured the court that he would be prepared to proceed on July 11, 2011.

According to defendant's attorney, plaintiff did not want to bring his expert witness, Kurosh Haghighi, D.D.S. (Dr. Haghighi), to court on July 12, 2011, but he said that he would have Dr. Haghighi in court on July 13, 2011. Plaintiff told the trial judge that he was not paying Dr. Haghighi to testify but the doctor would appear voluntarily. The trial court adjourned the matter.

The trial began on July 11, 2011. Dr. Haghighi did not appear on July 13, 2011. Barry W. Sirota (Sirota), who was acting as plaintiff's legal adviser, faxed a letter to the court that day. In the letter, Sirota stated that the evening of July 12, 2011, he and plaintiff spoke to Dr. Haghighi on the phone and the doctor said he would be in court the following day.

Sirota wrote that, when he came into the office on the morning of July 13, 2011, he was given a telephone message which indicated that Dr. Haghighi could not make it to court that day. Sirota called the doctor's office, but no one anwered the phone. He wrote, "I can only imagine that the [d]octor has had an unexpected emergency."

Sirota also wrote that plaintiff would "ask the [c]court to either accept the medical/dental reports that ha[d] been marked as [e]xhibits . . . ." Alternatively, plaintiff would ask the court to grant him a continuance so that he could bring the doctor into court the following day, after defendant had presented his case.

Later on July 13, 2011, Sirota faxed another letter to the trial judge, in which he stated that he had received a phone call from Dr. Haghighi. According to Sirota, Dr. Haghighi's brother was being married on the morning of July 14, 2011, so the doctor would not be available to appear on that day.

It appears that plaintiff asked the court for a continuance so that he could produce Dr. Haghighi the following day. The court denied the request. The matter was submitted to the jury, which returned ...


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