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Oliviera v. Silva

Superior Court of New Jersey, Appellate Division

October 2, 2013

CIDARK OLIVIERA, Plaintiff-Appellant,
v.
CLEBER P. SILVA, DDS, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 9, 2013.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4667-11.

Kenneth B. Grear argued the cause for appellant (Kenneth B. Grear, Ltd., attorneys; Mr. Grear, on the brief).

Robert T. Gunning argued the cause for respondent (Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys; Mr. Gunning, of counsel and on the brief).

Before Judges Yannotti and Ashrafi.

PER CURIAM.

Plaintiff Cidark Oliviera appeals from an order entered by the Law Division on September 14, 2012, granting summary judgment in favor of defendant Cleber P. Silva and dismissing plaintiff's complaint with prejudice. We affirm.

On May 31, 2011, plaintiff filed a complaint in the Law Division against defendant, who is licensed to practice dentistry in New Jersey. Plaintiff alleged that in March 2008, defendant placed crowns on eight of his teeth, specifically teeth five through twelve. Plaintiff claimed that defendant was negligent and careless in his treatment.

Plaintiff alleged that the crowns placed by defendant had exposed roots and open margins, which could lead to infection, periodontal disease, potential tooth loss and expensive corrective dental work. Plaintiff alleged that defendant's negligence and carelessness consisted of, among other things, his failure to: take a complete history, conduct a comprehensive examination, and recognize that crowns should not be placed on substandard foundations.

Plaintiff further alleged that defendant did not obtain his informed consent before performing the aforementioned dental work. He claimed that defendant did not inform him of all the risks and complications of the dental procedures performed, or tell him about alternative procedures that could have been performed.

On August 16, 2012, defendant filed a motion for summary judgment, seeking dismissal of plaintiff's complaint with prejudice. Defendant argued that plaintiff was aware, or by the exercise of reasonable diligence, should have been aware, in April 2008, of the problems with all of the replacement crowns. Defendant argued that plaintiff's complaint should be dismissed because it was not filed within two years of that date, as required by N.J.S.A. 2A:14-2(a).

In support of his motion, defendant relied upon plaintiff's deposition testimony, in which plaintiff indicated that in 1999, he had crowns placed on seven upper-front teeth. Plaintiff acknowledged that in 2005, a dentist informed plaintiff he had "open margins" on the crowns and the crowns would have to be replaced. The dentist informed plaintiff that "open margins" may result if crowns are too small or if there was some problem with their placement.

In May 2006, plaintiff presented to defendant, complaining of ill-fitting crowns and open margins. Defendant told plaintiff some of the crowns would have to be replaced and plaintiff might require other dental treatment including root canal procedures. Plaintiff agreed to the treatment plan. Defendant prepared ...


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