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Marilyn Piscitelli v. Dr. Ilya Lipkin

November 21, 2012

MARILYN PISCITELLI, PLAINTIFF-APPELLANT,
v.
DR. ILYA LIPKIN, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7653-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 30, 2012

Before Judges Espinosa and Kennedy.

The trial court granted summary judgment, dismissing plaintiff Marilyn Piscitelli's malpractice complaint against her orthodontist, defendant Ilya Lipkin. Plaintiff now appeals from an order that denied her motion to vacate that judgment. We affirm.

Plaintiff was defendant's patient from 2005 until 2009. Plaintiff filed her complaint on November 12, 2009, alleging claims of malpractice, abandonment, breach of contract, and failure to refer. In support of her malpractice claim, plaintiff submitted the expert report of Harry Aronowitz, D.M.D., who provided the following opinion:

It is my opinion that the defendant, Dr. Ilya Lipkin's treatment of the plaintiff, Marilyn Piscitelli, fell outside of professional standards. There is an expectation that orthodontic treatment would result in improved dental function and esthetics. The records show a negative change in dental and facial esthetics, mainly due to a significant increase in the protrusion of the upper incisors. This unfortunate result of orthodontic treatment has contributed to a speech impediment as well as difficulty in masticating food.

In his deposition on May 20, 2011, Dr. Aronowitz admitted that he had not reviewed any of defendant's records after 2007, despite the fact that treatment continued until 2009. He admitted that his report was "incomplete" as a result, and when asked if he planned to write a supplemental report, answered that he had not been asked to do so. Dr. Aronowitz further admitted that, not having looked at defendant's treatment notes, he did not know if there was a specific standard from which defendant had deviated.

The discovery period ended on June 10, 2011. Plaintiff did not seek to submit a supplemental expert report prior to the expiration of the discovery end date.

Defendant filed a motion for summary judgment on the ground that Dr. Aronowitz's opinion was an inadmissible net opinion. Plaintiff opposed the motion and did not seek to supplement Dr. Aronowitz's report before the return date of August 25, 2011. The trial court granted the motion and dismissed plaintiff's complaint in its entirety, finding that the report was a net opinion and that all of plaintiff's claims were subsumed in the malpractice claim.

In September 2011, plaintiff filed a motion for relief from that judgment pursuant to Rule 4:50-1(f). In support of that motion, plaintiff submitted a supplemental report from Dr. Aronowitz. His report purported "to provide explanation of the standard of care breached by Dr. Lipkin in the treatment of Ms. Piscitelli and its proximal cause in producing damages to her." Dr. Aronowitz did not, however, identify any records he relied upon in forming this supplemental opinion that were not available to plaintiff prior to the expiration of the discovery period.

Rule 4:50-1(f), the rule relied upon by plaintiff in seeking relief, permits courts to vacate judgments for "any other reason justifying relief from the operation of the judgment or order." "[B]ecause of the importance that we attach to the finality of judgments, relief under Rule 4:50-1(f) is available only when 'truly exceptional circumstances are present.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 484 (2012) (quoting Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994)). Relief under this rule is to be granted "sparingly, in exceptional situations; the Rule is designed to provide relief from judgments in situations in which, were it not applied, a grave injustice would occur." Hous. Auth. of Morristown, supra, 135 N.J. at 289; see also Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 237 (1998); Nowosleska v. Steele, 400 N.J. Super. 297, 304 (App. Div. 2008).

In arguing that the trial court erred in denying her relief under this rule, plaintiff does not identify any exceptional circumstance. Rather, she admitted that the trial court correctly concluded that Dr. Aronowitz's initial expert report constituted an inadmissible net opinion and that her motion relied upon her subsequent effort to cure that deficiency, stating:

Although the report met the threshold requirements to satisfy the statute it did not for the net opinion rule for malpractice liability. Piscitelli and Dr. Aronowitz agreed with the Court's opinion of August 30, 2011 . . . that the Orthodontic Expert Witness Report was a net opinion and did not establish the link between Dr. Lipkin's actions and Piscitelli's damages and submitted the reconsideration ...


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