SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2675-18T1

MARVIN T. BOYD, M.D.,

Plaintiff-Appellant,

v.

RENAL CENTER OF PASSAIC,

LLC and SUCCESSORS, KAREN

LEE LORENZO LIOI, R.N.,

NORTH JERSEY NEPHROLOGY

ASSOCIATES PA, and ANANTH

N. PRAKASH, M.D.,

Defendant-Respondents.

__________________________

Submitted February 24, 2020 – Decided

Before Judges Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Passaic County, Docket No. C000144-17.

Marvin T. Boyd, M.D., appellant pro se.

Pepper Hamilton LLP, attorneys for respondent Renal 

Center of Passaic, LLC (Jeffrey Arthur Carr and Jason 

J. Moreira, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

August 11, 2020
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Frier & Levitt, LLC, attorneys for respondents North 

Jersey Nephrology Associates, PA and Ananth N. 

Prakash, M.D. (Michelle Lynn Greenberg and Lucas 

W. Morgan on the brief).

PER CURIAM

In this breach of contract action, plaintiff Marvin T. Boyd, M.D., appeals 

pro se from four orders entered by the trial judge, namely: (1) a May 7, 2018 

order granting New Jersey Nephrology Associates, P.A. (NJN) and Ananth N. 

Prakash's motion to dismiss; (2) a May 7, 2018 order denying plaintiff's

motion to reinstate an entry of default against NJN, Prakash, and Karen Lee 

Lorenzo Lioi, R.N.; (3) a January 11, 2019 order granting summary judgment 

to Renal Center of Passaic, LLC (RCP); and (4) a January 11, 2019 order 

denying his motion to suppress RCP's answer for failure to answer 

interrogatories. Having reviewed the record, and in light of the applicable law, 

we affirm. 

We discern the following facts from the record. NJN is a nephrology 

practice that specializes in the treatment of kidney diseases and hypertension. 

At all times relevant to this appeal, Prakash served as an acting physician and 

the Chief of Nephrology for NJN. Both Prakash and NJN are members and 

equity owners of RCP, a dialysis center based in northern New Jersey. 
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Prakash also serves as medical director for RCP. In May 2000, Prakash, in his 

capacity as medical director for RCP, hired plaintiff to serve on RCP's medical 

staff and attend to patients in its outpatient hemodialysis unit. Plaintiff did not 

execute a written employment contract in connection with his being hired. 

Thereafter, Karen Marcus, regional director of Renal Ventures 

Management, LLC (RVM)1 2and managing partner for RCP, sent a letter to 

plaintiff dated September 19, 2011. The letter detailed several complaints 

made against plaintiff by RCP staff that could be construed as disruptive 

behavior and/or harassment as defined in RVM's medical staff disruptive 

behavior and harassment policy (the policy). The letter was intended to inform 

plaintiff of the complaints, and to place him on notice of RVM's plans to 

investigate the claims in accordance with RVM's bylaws and the policy. 

Marcus sent plaintiff another letter dated October 7, 2011, informing

plaintiff that RVM had completed its investigation and that

1

 RVM was the parent company for RCP, which it also operated and managed. 

RCP advises that it is the successor to RVM as it pertains to RVM's bylaws 

and harassment policies. 

2

 In May 2017, RVM sold RCP to DaVita, Inc. Davita subsequently divested 

the RCP facility to Physicians Dialysis and GMF Capital LLC. None of these 

entities that followed RVM's sale of RCP are named as defendants in the 

present litigation. 
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[Y]ou are hereby notified that your privileges at RVM 

have been revoked.

You have fourteen (14) days from the date of 

this notice to notify your patients that your privileges 

have been revoked, and give them the option to 

continue their care with you at another facility, 

continue treating at a RVM facility with another 

physician or treat with an entirely new physician and 

facility.

The letter explained that the governing body of RVM had concluded 

that plaintiff's behavior constituted disruptive and/or harassing behavior, and 

established October 24, 2011 as the date by plaintiff needed to fully wind 

down his practice. Between October 7 and October 24, 2011, plaintiff still 

interacted with and treated patients.

On October 18, 2017, plaintiff filed a complaint naming RCP, NJN, 

Prakash, and Lioi3as defendants. Plaintiff asserted that RCP's bylaws and the 

policy constituted a contract. He claimed that defendants had breached the 

contract by failing to adhere to the process for terminating employees 

delineated in these documents. Plaintiff sought relief based solely on a breach 

of contract theory. The parties executed a stipulation for an extension of time 

to answer the complaint, allowing defendants an extension until December 24, 

2017 to file an answer or response. 

3

 Lioi was the nurse manager for RCP.
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RCP filed an answer on December 22, 2017, in which it asserted the 

affirmative defense of the statute of limitations. NJN, Prakash, and Lioi all 

failed to timely file responsive pleadings.

4 NJN and Prakash moved to dismiss 

plaintiff's complaint in lieu of filing an answer for failing to state a claim upon 

which relief could be granted.

5

On February 1, 2018, Judge Thomas J. LaConte held a case management 

conference, at which both NJN and Prakash alleged that plaintiff failed to 

personally serve them with his complaint and had only done so by certified 

mail. Counsel for NJN and Prakash advised the judge that she appeared at the 

conference merely to advise that she was representing NJN and Prakash and 

that she would be seeking a dismissal of plaintiff's claims against her clients. 

Judge LaConte agreed that plaintiff had improperly served NJN, Prakash, and 

Lioi, as he failed to personally serve them as required by the Court Rules.

6

 

However, Judge LaConte deferred making any decisions regarding service to 

allow NJN and Prakash to consider whether they wanted to proceed with their 

motion to dismiss. 

4

 Lioi never filed a responsive pleading, and never appeared in this matter. 

5

 See R. 4:6-2(e). 

6

 See R. 4:4-4(a).
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On February 5, 2018, plaintiff filed for entry of default against 

defendants NJN, Prakash, and Lioi on the basis that he had served them via 

certified mail with return receipts. Default was entered against these 

defendants that same day. NJN and Prakash sought to dismiss plaintiff's 

complaint but were advised that because they were in default, they would first 

need to file a motion to vacate the default. On February 22, 2018, NJN and 

Prakash sent a letter to the court clerk requesting that it vacate the default 

based on improper service. Recognizing that defendants were improperly 

served, the court administratively vacated the default and allowed NJN and 

Prakash to file a motion to dismiss plaintiff's complaint. Plaintiff responded 

by resubmitting his previously filed papers, and then personally serving NJN, 

Prakash, and Lioi, thereafter renewing his request to reinstate default. 

On May 7, 2018, Judge LaConte held a hearing on the motion to dismiss 

filed by NJN and Prakash, as well as plaintiff's motion to reinstate default. 

The judge acknowledged that RCP's bylaws and the policy could constitute an 

employment contract as between plaintiff and RCP. He determined, however,

that to extend plaintiff's breach of contract action to find either NJN or Prakash

personally liable would "require an exercise of either piercing the veil, a 

protection extended to members of [RCP] or showing a personal breach of 
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contract perpetrated by those parties, breach of fiduciary duties, or a showing 

of unjust enrichment as non-parties of contracts cannot be held responsible for 

a breach." 

The judge concluded that there was no basis to pierce the corporate veil 

and find either NJN or Prakash liable here, as plaintiff had not shown that RCP 

was a mere instrumentality of either Prakash or NJN nor had he shown that 

either NJN or Prakash used RCP to perpetrate fraud or act for an illegal 

purpose. The judge further determined that neither NJN nor Prakash had 

committed a tort subjecting them to liability; Prakash owed no fiduciary duties 

to plaintiff; and NJN was not unjustly enriched from plaintiff's termination. 

For these reasons, the judge granted NJN and Prakash's motion to dismiss

plaintiff's complaint without prejudice.

7

Judge LaConte also denied plaintiff's motion to reinstate default 

because plaintiff had not personally served defendants until after the court had 

administratively vacated the default, and his initial service upon defendants by 

mail was insufficient. 

7

 Plaintiff did not brief any of the judge's substantive rulings concerning 

piercing the corporate veil, damages, or unjust enrichment on appeal; 

therefore, we deem any such arguments to be abandoned. See Sklodowsky v. 

Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on 

appeal is deemed waived.").
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The judge also discussed the elements a plaintiff must prove in a breach 

of contract action identified by our Supreme Court in Globe Motor Co. v. 

Igdalev, 225 N.J. 469, 482 (2016). Applying those elements, the judge 

concluded that even if plaintiff's complaint was not time-barred, he had failed 

to establish that he suffered any quantifiable damages entitling him to relief. 

On July 5, 2018, RCP moved for summary judgment as to plaintiff's 

complaint against it. Plaintiff opposed RCP's motion and cross-moved to 

strike its answer for failing to provide sufficient answers to interrogatories. A 

hearing on these motions was held before Judge Randal C. Chiocca on January 

11, 2019.

Relying upon N.J.S.A. 2A:14-1, Judge Chiocca determined that plaintiff 

had six years from the date on which his breach of contract claim accrued to 

file a complaint against RCP, explaining that the claim accrued on the date on 

which plaintiff's right to sue arose. The judge found that plaintiff's cause of 

action accrued on October 7, 2011, that being the day that plaintiff learned that 

his privileges were revoked. The judge found that defendant's continued 

employment and his treatment of patients at RCP through October 24, 2011

was not determinative, as it was reasonable to conclude that plaintiff was

aware of the alleged breach of the policy and bylaws more than two weeks 
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prior. Thus, the judge held that defendant's complaint, filed on October 18, 

2017, was untimely and statutorily barred.

As to plaintiff's cross-motion, Judge Chiocca concluded that even if 

RCP's answers to interrogatories were insufficient and discovery was 

incomplete, plaintiff's breach of contract claim nevertheless was barred 

because he failed to file his complaint before the applicable statute of 

limitations expired. Therefore, the judge granted RCP's motion for summary 

judgment and denied plaintiff's cross-motion to strike RCP's answer. This 

appeal ensued. 

On appeal, plaintiff raises the following arguments:

POINT I: [THE] LOWER COURT ERRED IN 

GRANTING SUMMARY JUDGMENT TO 

DEFENDANT BY FAILING TO RECOGNIZE THE 

STATU[T]E OF LIMITATIONS ACCRUAL DATE 

AS BEING OCTOBER 24, 2011.

A. CAUSE OF ACTION IS FAILURE OF A 

CONTRACTUAL DUE PROCESS PERFORMANCE 

PRIOR TO TERMINATION.

B. TERMINATION DATE AS ACCRUAL DATE IN 

EMPLOYMENT PARADIGM PRECEDENT IS 

APPLICABLE.

POINT II: [THE] LOWER COURT ERRED IN 

DENYING CROSS-MOTION OF . . . PLAINTIFF TO 

STRIKE ANSWER FOR FAILURE TO ANSWER 

INTERROGATORIES BASED ON [THE] COURT'S 
10 A-2675-18T1

ERRONEOUS OPINION THAT THE ACTION IS 

TIME BARRED AND IGNORING THE MERIT OF 

SAID MOTION.

POINT III: [THE] LOWER COURT ERRED IN 

FAILING TO RECOGNIZE THE STIPULATION 

EXTENDING TIME TO ANSWER COMPLAINT AS 

AN APPEARANCE WITH FAILURE TO APPLY 

[RULE] [4:]4-4(C) AND [RULE] [4:]4-6.

POINT IV: [THE] LOWER COURT ERRED BY 

FAILING TO ADJUDICATE THE VACATION OF 

DEFAULT AND DENYING CROSS-MOTION OF 

. . . PLAINTIFF TO REINSTATE THE DEFAULT 

WHICH WAS WRONGLY VACATED.

POINT V: [THE] LOWER COURT ERRED IN 

GRANTING DEFENDANTS' MOTION TO DISMISS 

PLAINTIFF'S COMPLAINT IN LIEU OF FILING 

AN ANSWER BECAUSE DEFENDANTS HAD NO 

STANDING TO FILE PLEADINGS AS THEY 

WERE IN DEFAULT.

After plaintiff filed his appeal, NJN and Prakash sent plaintiff a letter on 

March 21, 2019, asserting that plaintiff's complaint and ensuing appeal are 

frivolous and in violation of Rule 1:4-8. In their responsive briefs on appeal, 

both request that we sanction plaintiff under this rule and award attorney's fees 

to NJN and Prakash.

Plaintiff first argues that the trial judge erred in granting summary 

judgment to RCP based on plaintiff's complaint being barred by the statute of 

limitations for breach of contract claims, N.J.S.A. 2A:14-1. He claims that his 
11 A-2675-18T1

claim accrued on the last day that he worked for RCP, as opposed to the date 

on which he learned his privileges were being revoked, as he continued to treat 

patients after he received his notice of termination. 8 Under this theory, 

plaintiff's October 18, 2017 complaint would have been filed within time by 

several days. We disagree. 

We review a trial judge's grant of summary judgment de novo under the 

same standard that governed the trial judge. Templo Fuente De Vida Corp. v. 

Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That 

standard is well-established:

[I]f the evidence of record—the pleadings, 

depositions, answers to interrogatories, and 

affidavits—"together with all legitimate inferences 

therefrom favoring the non-moving party, would 

require submission of the issue to the trier of fact,"

then the trial [judge] must deny the motion. On the 

other hand, when no genuine issue of material fact is 

at issue and the moving party is entitled to a judgment 

as a matter of law, summary judgment must be

granted.

8

 Both before the trial judge and on appeal, plaintiff relies on case law 

governing statutes of limitations for claims under the Conscientious Employee 

Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Under the CEPA, our courts 

have held that such claims accrue not on the date when an employee learns of a 

retaliatory discharge, but on the date when the employee is discharged. See

Alderiso v. Med. Ctr. of Ocean Cty., Inc., 167 N.J. 191, 201-02 (2001). As 

plaintiff's complaint only raised a breach of contract theory, we concur with 

the trial judge that the method for determining the date of accrual for a CEPA 

claim does not govern plaintiff's action. 
12 A-2675-18T1

[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 

366 (2016) (citation omitted) (quoting R. 4:46-2(c)).]

"When no issue of fact exists, and only a question of law remains, [reviewing 

courts] afford[] no special deference to the legal determinations of the trial 

[judge]." Templo Fuente, 224 N.J. at 199. Thus, "[t]o defeat a motion for 

summary judgment, the opponent must '"come forward with evidence" that 

creates a genuine issue of material fact.'" Cortez v. Gindhart, 435 N.J. Super. 

589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. 

State, 425 N.J. Super. 1, 32 (App. Div. 2012)). However, "conclusory and 

self-serving assertions by one of the parties are insufficient to overcome the 

motion," Puder v. Buechel, 183 N.J. 428, 440-41 (2005), and the opponent 

must "do more than 'point[] to any fact in dispute' in order to defeat summary 

judgment," Igdalev, 225 N.J. at 479 (alteration in original) (emphasis omitted) 

(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). 

Disputes about "facts which are immaterial or of an insubstantial nature"

provide no basis to deny the moving party summary judgment. Id. at 480 

(quoting Brill, 142 N.J. at 529). "An issue of fact is genuine only if, 

considering the burden of persuasion at trial, the evidence submitted by the 

parties on the motion, together with all legitimate inferences therefrom
13 A-2675-18T1

favoring the non-moving party, would require submission of the issue to the 

trier of fact." R. 4:46-2(c). "The practical effect of [Rule 4:46-2(c)] is that 

neither the motion [judge] nor an appellate [judge] can ignore the elements of 

the cause of action or the evidential standard governing the cause of action." 

Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). 

Rule 4:5-4 provides that "[a] responsive pleading shall set forth 

specifically and separately a statement of facts constituting an avoidance or 

affirmative defense," including a statute of limitations defense. In a breach of 

contract action, whether express or implied, the statute of limitations is six 

years. N.J.S.A. 2A:14-1. Here, there is no question that RCP pleaded the 

defense in its answer.

The statute of limitations does not begin until the claim has accrued. 

"[F]or purposes of determining when a cause of action accrues so that the 

applicable period of limitation commences to run, the relevant question is 

when did the party seeking to bring the action have an enforceable right." 

Metromedia Co. v. Hartz Mountain Assocs., 139 N.J. 532, 535 (1995) (quoting 

Andreaggi v. Relis, 171 N.J. Super. 203, 235-36 (Ch. Div. 1979)). A breach of 

contract action accrues on "the date upon which the right to institute and 

maintain a suit first arises." Holmin v. TRW, Inc., 330 N.J. Super. 30, 35 
14 A-2675-18T1

(App. Div. 2000) (quoting Hartford Accident & Indem. Co. v. Baker, 208 N.J. 

Super. 131, 135-36 (Law Div. 1985)), aff'd, 167 N.J. 205 (2001). Specifically, 

the right to institute and maintain a suit for a breach of contract accrues either 

when the breach occurs or when the plaintiff should, with the exercise of due 

diligence, have discovered the breach. Sodora v. Sodora, 338 N.J. Super. 308, 

313 (Ch. Div. 2000); see Lopez v. Swyer, 62 N.J. 267, 272-73 (1973).

Here, plaintiff was aware of RCP's alleged breach when he received 

Marcus' October 7, 2011 letter that unequivocally stated his privileges had 

been revoked. Judge Chiocca correctly found that plaintiff's cause of action 

for a breach of contract claim accrued on that date. Plaintiff did not file his 

breach of contract action against defendants until October 18, 2017. He failed 

to seek the requested relief within six years, as required by N.J.S.A. 2A:14-1, 

and his complaint is therefore time-barred. Similarly, we reject plaintiff's 

argument that the judge should have stricken RCP's answer for failure to 

answer interrogatories because as the judge determined, any answers would 

not have cured the statute of limitations issue.

We also reject plaintiff's argument that the judge erred in entertaining 

NJN and Prakeshesh's motion to dismiss. The judge aptly noted that service 

was defective as to defendants NJN, Prakash and Lioi in his oral opinion, and 
15 A-2675-18T1

we concur. Neither the filing of a stipulation to extend the time to answer, nor 

the appearance of counsel for NJN and Prakash at the May 7, 2018 hearing, 

constituted a general appearance. The appearance only subjected NJN and 

Prakash to the jurisdiction of the court for the limited purpose of filing their 

motion to dismiss plaintiff's complaint.

Moreover, at the time they filed the motion, NJN and Prakash were not 

in default because, as the judge found, plaintiff only effected personal service 

on them after the default was administratively vacated. See R. 4:4-4(c)

("Where personal service is required[,] . . . service, in lieu of personal service,

may be made by registered, certified or ordinary mail, provided, however, that 

. . . default shall not be entered against a defendant who fails to answer or 

appear in response thereto."). 

Finally, as to the request made by NJN and Prakash that we award them 

attorney's fees to be paid by plaintiff because plaintiff's initial complaint and 

present appeal are frivolous, we conclude that NJN and Prakash must seek 

such relief by way of a separate motion, to be filed with the trial judge in the 

manner required by our Court Rules. See R. 1:4-8(b)(1) (requiring in part that 

an application seeking sanctions be made by way of a separate motion). 
16 A-2675-18T1

To the extent we have not addressed any of the parties' remaining 

arguments, we conclude that they are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.