SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2405-16T1

ALLEN S. GLUSHAKOW, 

M.D., P.A.,

Plaintiff-Respondent,

v. 

ANDREA KUNAK, a/k/a

ANDREA KUNAK-SHARKEY,

and CECILIA W. BLAU, ESQUIRE,

Defendants-Appellants.

______________________________

Argued October 10, 2018 – Decided March 5, 2019

Before Judges Hoffman, Suter and Firko.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-7032-14.

Cecilia W. Blau and Andrea Kunak, appellants, argued 

the cause pro se.

James C. Mescall argued the cause for respondent 

(Mescall & Acosta, PC, attorneys; James C. Mescall, 

on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendants Andrea Kunak-Sharkey (Kunak) and Cecilia W. Blau (Blau)

appeal four orders entered in connection with a complaint filed by plaintiff Allen 

S. Glushakow, M.D., P.A. arising from his medical treatment of Kunak 

following a motor vehicle accident. The case was tried to a jury, which returned

a verdict in plaintiff's favor. Following entry of a judgment that included 

attorney's fees and pre-judgment interest, we stayed execution pending appeal 

conditioned on defendants depositing $150,000 with the Clerk. Defendants

contend the trial court erred by not allowing them to present evidence to the jury 

that an underlying personal injury protection (PIP) arbitration was mishandled

and that plaintiff should be held accountable for his attorney's negligence in that 

matter. They assert that a release and assignment of benefits signed by Kunak 

was unenforceable. They claim plaintiff was not entitled to an award of 

attorney's fees or pre-judgment interest. We affirm the judgment except for the 

award of attorney's fees, which we reverse and remand for further proceedings.

I

We relate relevant facts from the underlying trial. At Kunak's first 

appointment with plaintiff in July 2009, she told him "she sustained a severe 

head injury" from a motor vehicle accident in 2006, had seen a number of other 

doctors, "had extensive physical therapy" and "had a number of falls due to a 
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balance problem." He commenced conservative treatment. An EMG study 

indicated carpel tunnel syndrome.1 He performed surgery to correct this. She 

had physical therapy for several months thereafter. Kunak returned to plaintiff's 

office in October 2009 complaining about her back, neck and left knee. She 

complained of "falling a lot as a result of a balance problem" and left knee pain. 

An MRI "[s]uggested a torn meniscus" and there was "pre-existing arthritic 

changes in the knee." He performed surgery to repair the torn ligament and 

meniscus. In April 2011, she complained of her right knee "locking" and "back 

discomfort." Plaintiff performed cartilage surgery on that knee to correct torn 

cartilages. Later, he aspirated fluid from her right knee. 

Kunak signed a "Release and Assignment of Benefits" when she initially 

sought treatment from plaintiff in July 2009. In relevant part, it provided:

I understand that regardless of any insurance payment 

or the outcome of any legal proceeding or settlement, I 

am ultimately financially responsible for all charges not 

otherwise paid by insurance or legal settlement or 

covered by this authorization.

. . . . 

Patient is responsible to pay any debts, including 

attorney fees, incurred to collect past due bills. Past 

 

1

 Plaintiff described carpel tunnel syndrome as a "nerve disorder, where the 

median nerve in the wrist is injured, and you have numbness in the . . . hands as 

a result."
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due bills are subject to interest charges at the rate of 

[one and one-half percent] per month. 

A month later, she signed an "Agreement For Payment Of Outstanding 

Bill." The Agreement stated, in pertinent part, as follows:

In consideration of withholding immediate legal action 

against me for collection of my outstanding bill for 

medical services rendered, I hereby agree to make a 

minimum payment of $50.00 at the end of treatment and 

direct my attorney, Cecilia Blau, Esq., to pay any such 

outstanding medical bill . . . from the proceeds of any 

settlement or judgment in any case or claim pending on 

my behalf . . . . I understand, however, that my 

obligation to pay this outstanding bill is in no way 

contingent upon the outcome of any pending litigation 

and that I remain primarily responsible for payment of 

this outstanding bill irrespective of the outcome of any 

such litigation.

Shortly after this, Blau executed a conditional letter of protection, which 

stated, "[y]ou may consider this a letter of protection whereby if there is a 

recovery for unpaid services rendered in this case, your bill will be protected." 

The agreement was "conditioned [on] your submitting timely statements and 

proper billing forms to the appropriate insurance companies."

Kunak's insurer questioned whether some or all of the medical treatment 

she received from plaintiff and other medical providers was related to the 2006 

automobile accident and submitted the matter to a dispute resolution arbitration. 

The PIP arbitration was conducted telephonically by a dispute resolution 
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professional. Plaintiff was represented by counsel, but not by Blau, who 

represented Kunak for her personal injury claim. 

Plaintiff took the position in the arbitration that Kunak's carpel tunnel was 

"an aggravation of a previous condition" that was related to the 2006 car 

accident. He also claimed her knee problems were causally related to the same 

accident because of her frequent falls and balance disorder. Plaintiff submitted 

a report from Dr. Park who claimed Kunak's knee problems were attributable to 

the 2006 accident, although Dr. Park did not testify at the arbitration. Kunak 

testified about her injuries. 

The arbitrator found the 2006 car accident aggravated Kunak's preexisting carpal tunnel syndrome and awarded plaintiff his medical fees for that 

treatment. However, he found Kunak's knee injuries were not related to the 

accident because she had additional falls after her balance problems were 

resolved. He denied plaintiff an award for those fees. Plaintiff's application to 

modify or clarify the arbitrator's decision was denied because it "simply 

reargu[ed] the evidence submitted in th[e] matter." 

In July 2014, plaintiff filed a breach of contract complaint against Kunak 

and Blau seeking a monetary judgment of $26,635.32 plus counsel fees, interest 

and costs for the knee surgeries that were denied payment in the arbitration. By 
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this time, Kunak had settled the personal injury claim that Blau was handling

for her for $160,000, and the monies were being held by Blau in a trust account.

Plaintiff's complaint alleged Kunak agreed to pay a "fair and reasonable amount" 

for his services, had not done so and, as such, breached their contract. The 

complaint alleged that Blau breached the letter of protection by not paying 

plaintiff. 

Defendants' answer denied they owed plaintiff any compensation for 

treatment. In their separate defenses, defendants claimed the PIP arbitration was 

mishandled and that negligence caused the loss to plaintiff. There were no 

counterclaims, cross-claims or third-party complaints. 

Plaintiff's motion for summary judgment was granted in part and denied 

in part. Although Blau's 2009 letter of protection was found to be a "legally 

binding contract between plaintiff and defendants," material fact issues existed 

about plaintiff's invoice that detailed the "medical services [he] performed on 

[Kunak] and payments made by the PIP carrier," which precluded summary 

judgment. The case proceeded to trial.

2

 

2 Blau was disqualified from representing Kunak at the trial. Both defendants 

were self-represented. 
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The jury found that plaintiff and Kunak had a contract, Kunak breached 

it, plaintiff was not negligent in connection with the arbitration, and Blau 

breached her contract with plaintiff. The jury also found that the "usual,

customary and reasonable fee for the medical services provided by plaintiff" was 

$24,359.47. On November 28, 2016, the court entered an order that plaintiff's 

counsel fees and interest were to be determined by motion. The order stated that 

upon determination of that motion, a final judgment "shall" provide that 

judgment would be entered for $24,359.47 in favor of plaintiff against Kunak

and that Blau was to release to plaintiff and his attorney $24,359.47 of the funds 

she was holding for Kunak.

Plaintiff's attorney fee certification requested $31,669.90 for fees and 

costs, reflecting 124.40 hours billed at $250 per hour and $569.90 in costs. 

Defendants opposed this and filed a motion for a new trial. The court denied 

the new trial motion and a subsequent motion for reconsideration. The court 

entered a judgment on January 6, 2017, for $24,359.47 in favor of plaintiff 

against both defendants, plus attorney's fees of $31,669.90 and interest in the 

amount of $17,538.81. We granted an emergent application for a stay pending 

appeal conditioned on a $150,000 deposit with the Superior Court Trust Fund.

On appeal, defendants raise the following issues:
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POINT I

WHERE A DOCTOR TAKES, THROUGH AN 

ASSIGNMENT OF BENEFITS, THE PATIENT'S

ENTITLEMENT TO PIP INSURANCE COVERAGE 

FOR HIS BILL, HE HIRES A LAWYER, THEY 

TAKE THE BILL TO PIP ARBITRATION, THEY 

NEGLIGENTLY AND GROSSLY MISHANDLE THE 

ARBITRATION AND LOSE THE INSURANCE 

COVERAGE OF THE BILL, IT WAS ERROR FOR 

THE TRIAL JUDGE TO BAR AND PRECLUDE ALL 

EVIDENCE OF THE ATTORNEY'S NEGLIGENCE.

POINT II

THE RELEASE AND ASSIGNMENT OF BENEFITS 

KUNAK WAS REQUIRED TO SIGN BY DR. 

GLUSHAKOW IN ORDER TO RECEIVE 

TREATMENT WAS UNENFORCEABLE AS AN 

IMPERMISSIBLE EXCULPATORY CLAUSE AND 

UNCONSCIONABLE.

POINT III

THE NEGLIGENT ACTS OF PLAINTIFF'S

ATTORNEY IS ATTRIBUTABLE TO PLAINTIFF 

AND LIABILITY THEREFORE MUST REMAIN 

WITH PLAINTIFF AS PRINCIPAL AND AGENT. 

POINT IV 

PLAINTIFF IS NOT ENTITLED TO INTEREST AND 

ATTORNEY'S FEES AS THE AMOUNT HE 

CLAIMED WAS UNASCERTAINABLE EXCEPT BY 

A JURY. 
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With one exception, we do not agree these issues are meritorious. The 

attorney fee award was not adequately explained and we are constrained to 

reverse only that issue and remand it for further proceedings.

II

Defendants contend they are entitled to a new trial because of errors made 

by the trial court. "The standard for appellate review of a trial court's decision 

on a motion for a new trial is substantially the same as that controlling the trial 

court except that due deference should be made to its 'feel of the case,' including 

credibility." Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (quoting Feldman v. 

Lederle Lab., 97 N.J. 429, 463 (1984)). The appellate court defers to the trial 

court with respect to "intangibl[es]" not transmitted by the record to decide if 

there was a miscarriage, but otherwise makes its own independent determination 

of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 

360-61 n.2 (1979). "Jury verdicts should be set aside in favor of a new trial 

sparingly and only in cases of clear injustice." Pressler & Verniero, Current N.J. 

Court Rules, cmt. 1.1 on R. 4:49-1 (2019) (citing Caicedo v. Caicedo, 439 N.J. 

Super. 615, 628-29 (App. Div. 2015)). "A new trial will be required if the trial 

judge concludes that erroneous trial rulings resulted in prejudice to a party. " 

Ibid. (citing Crown v. Campo, 136 N.J. 494 (1994)). 
10 A-2405-16T1

Defendants contend they are entitled to a new trial because the court erred 

by not allowing evidence before the jury that the attorney who handled the PIP 

arbitration was negligent in presenting plaintiff's claim for Kunak's treatments. 

"[T]he decision to admit or exclude evidence is one firmly entrusted to the trial 

court's discretion." State v. Scott, 229 N.J. 469, 479 (2017) (alteration in 

original) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 

369, 383-84 (2010)). We apply a deferential standard in reviewing a trial court's 

evidentiary rulings and uphold its determinations "absent a showing of an abuse 

of discretion." State v. Perry, 225 N.J. 222, 233 (2016) (quoting State v. Brown,

170 N.J. 138, 147 (2001)). A reviewing court must not "substitute its own 

judgment for that of the trial court" unless there was a "clear error in judgment,"

a ruling "so wide of the mark that a manifest denial of justice resulted." Ibid.

(quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

The PIP arbitrator found that the medical treatment Kunak received for 

her knees was unrelated to the 2006 automobile accident and denied payment 

for these portions of the PIP claim. Defendants argue this was wrong because 

the medical treatment received for her knees was related to her imbalance 

problems, which was related to the accident. They contend the PIP arbitration 

was "lost" because the attorney representing plaintiff was not prepared, did not 
11 A-2405-16T1

call Dr. Park as a live witness, did not prepare Kunak for the arbitration, and 

provided an incomplete factual summary to the arbitrator. At the jury trial, Blau 

was not permitted to provide the report she prepared about the PIP attorney's 

alleged mishandling of the arbitration.

We do not agree that the trial court abused its discretion in precluding 

testimony regarding the alleged malpractice of plaintiff's attorney at the PIP 

arbitration. That attorney was not a party in plaintiff's case.3 Whether he could 

have been added to the case as a defendant or third-party defendant begs the 

question, because defendants never made a motion to add the attorney even 

though in a separate defense they raised that an indispensable party was missing 

from the litigation. Without the attorney as a party, the court did not abuse its 

discretion in precluding defendants from trying to prove his negligence at the 

PIP arbitration. 

Much of what defendants wanted to prove about the absent attorney's 

conduct was put before the jury in any event. Blau testified "[t]he arbitration 

was not done properly" and that Kunak was not prepared by the lawyer before 

the arbitration. When asked if this was the fault of the PIP attorney, Blau 

answered "[a]bsolutely." Kunak testified that the lawyer did not prepare her

 

3 The record also did not include an affidavit of merit against the attorney. 
12 A-2405-16T1

ahead of the PIP arbitration. She said she kept calling the lawyer to see if she 

should come into the office "but they kept saying no." She participated in the 

arbitration by phone at "home alone." 

The PIP award was admitted into evidence in the jury trial by consent and 

undercut the claim about attorney negligence. It evidenced that the question of 

whether Kunak's knee conditions related to the 2006 accident was squarely 

before the arbitrator and vetted. There was evidence of a falling episode in 2006,

and she reported to that doctor she was "having falling spells" but "she did not 

have any complaints of knee pain and there were no objective findings as they 

related to either knee." Dr. Park's report opined the 2006 accident caused an 

imbalance injury and that Kunak then suffered falling attacks, injuring her 

knees. The PIP attorney's arbitration summary, criticized as inadequate,

asserted that all of the medical treatment for Kunak's knees was causally related 

to the 2006 accident. It stated "[h]er series of falls was attributable to her 

balance problems which originated with the accident [of 2006]." Although the 

PIP arbitrator did not find a connection between the accident and the knee 

surgeries, it was not because the evidence was not presented. The arbitrator 

wrote:

While there was some fall downs, there was no reported 

injury to the knees for a significant period of time 
13 A-2405-16T1

despite the testimony of [Kunak]. Moreover, despite 

Dr. Park's theory, [Kunak] testified that the imbalance 

was resolved and that she still had fall downs. There 

was no instability of the knees when examined by Dr. 

Wolkstein, despite pain.

On this record, the trial court did not abuse its discretion in precluding 

testimony about the PIP attorney's alleged negligence and certainly there was no 

manifest injustice warranting a new trial because much of the information was 

already before the jury.

On appeal, defendants argue that plaintiff may not avoid responsibility for 

his attorney's negligent handling of the PIP claim based on a principal agent 

relationship. They cite to State v. Mauti, 448 N.J. Super. 275 (App. Div. 2017)

in their brief for the proposition that "a letter written by a lawyer . . . containing 

admissions from the defendant, can be used at trial as the statement of the 

defendant, because the lawyer was simply acting on behalf of the client

defendant." However, Mauti had nothing to do with holding a client civilly

liable for the negligence of his attorney. In Mauti, the issue was whether an 

attorney's letter that described "the medications and dosages" defendant 

administered was an adopted admission by defendant under N.J.R.E. 803(b)(3), 

or whether the prosecutor was "barred from using any statements of fact 

contained in defense counsel's letter because they were made as part of 'plea 
14 A-2405-16T1

negotiations' under N.J.R.E. 410." Id. at 323. The court's holding clarified what 

constituted plea negotiations for purposes of N.J.R.E. 410. That issue is not 

relevant. 

In this case, the jury expressly found plaintiff was not negligent "in 

connection with the arbitration" because it answered "no" to this question on the 

verdict sheet. This foreclosed defendants' argument that plaintiff's conduct "in 

connection" with the arbitration could be the subject of any further liability 

under the novel theory they advance.

Defendants argue the assignment of benefits and release form that Kunak 

signed was "unenforceable as an impermissible exculpatory clause and 

unconscionable." Any chose in action arising from a contract is assignable. 

Lech v. State Farm Ins. Co., 335 N.J. Super. 254, 258 (App. Div. 2000). PIP 

claims are contractual and assignable. Ibid. Their assignment furthers the goal 

that injured individuals obtain prompt medical treatment by facilitating "direct 

payment on behalf of patients." Id. at 261.

Defendants characterize the assignment as "exculpatory" because they 

contend it afforded plaintiff indemnification for his own negligence. This 

argument fails because the jury found plaintiff was not negligent in connection 

with the arbitration. Therefore, factually, the contention that the assignment 
15 A-2405-16T1

indemnified plaintiff for his negligence was not supported. Defendants cite no 

other legal authority that an assignment of benefits is unconscionable or against 

public policy. 

Defendants argue plaintiff is not entitled to interest and attorney fees 

because the amount plaintiff sued on was "unascertainable." Citing to a quote 

from General Electric Corp. v. E. Fred Sulzer & Co., 86 N.J. Super. 520, 549-

550 (Law Div. 1965), they contend that where the damages sought are 

unliquidated, pre-judgment interest should not be allowed. 

Plaintiff's claim against defendants was plainly capable of calculation.

Defendants even submitted expert testimony to the jury about the proper billing

for all of the codes to reach a dollar amount that was reasonable, customary and 

usual. This simply was not a case involving unliquidated damages or a nonascertainable amount.

A court may enter an award of pre-judgment interest when the contract 

permits this. See Van Note-Harvey Assocs., PC v. Twp. of E. Hanover, 175 N.J. 

535, 542 (2003). "The award of prejudgment interest on contract and equitable 

claims is based on equitable principles." Cty. of Essex v. First Union Nat'l Bank, 

186 N.J. 46, 61 (2006). An award for pre-judgment interest is addressed to the 

sound discretion of the trial judge. Litton Indus. v. IMO Indus., 200 N.J. 372,
16 A-2405-16T1

390 (2009). "Unless the allowance of prejudgment interest 'represents a manifest 

denial of justice, an appellate court should not interfere.'" Ibid. (quoting Cty. of 

Essex, 186 N.J. at 61). 

The release and assignment signed by Kunak authorized the assessment 

of pre-judgment interest. Defendants did not challenge the pre-judgment 

interest calculation or show how its assessment constituted an abuse of 

discretion. 

"We will disturb a trial court's determination on counsel fees only on the 

'rarest occasion,' and then only because of a clear abuse of discretion." Barr v. 

Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Strahan v. Strahan, 402 

N.J. Super. 298, 317 (App. Div. 2008)). A court has abused its discretion "if the 

discretionary act was not premised upon consideration of all relevant factors, 

was based upon consideration of irrelevant or inappropriate factors, or amounts

to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. 

Div. 2005). In calculating the amount of reasonable attorney's fees, "an affidavit 

of services addressing the factors enumerated by R.P.C. 1.5(a)" is required. R.

4:42-9(b); Twp. of W. Orange v. 769 Assocs., LLC, 198 N.J. 529, 542 (2009). 

R.P.C. 1.5(a) sets forth the factors to be considered when determining an 

attorney's fee award. 
17 A-2405-16T1

The trial court had a detailed certification of services from plaintiff's 

counsel. However, at the motion for a new trial, the trial court only briefly 

touched upon the attorney fee issue. There was no analysis of the R.P.C. factors 

or consideration of the arguments made by defendants that certain fees should 

not be included. The trial court did not provide its reasoning, contrary to Rule

1:7-4(a). Because of this, we reverse the attorney fee award and remand that 

issue for appropriate analysis under R.P.C. 1.5.

Applying our standard of review, we conclude the verdict did not result in 

a miscarriage of justice. On the issues raised, the trial court did not abuse her

discretion. Both parties had an opportunity to present their version of the facts 

in dispute. Reasonable jurors could have concluded that there was sufficient

evidence to find that plaintiff provided services to Kunak, that these were not 

paid by PIP, and that she was indebted to plaintiff for payment of these services. 

Then, to the extent that Blau was holding the funds that Kunak obtained in a 

personal injury settlement, she agreed to pay these monies to plaintiff, and had 

not done so, making her responsible for payment of the required amount. The 

contract permitted attorney's fees and pre-judgment interest. The court did not 

abuse its discretion in the award of pre-judgment interest. The award for 

attorney's fees is reversed and remanded.
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We conclude that defendants' further arguments are without sufficient

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

Affirmed in part and reversed and remanded in part. We do not retain 

jurisdiction.