RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0589-14T1

A.T., an infant by her mother

and natural guardian, T.T.,

and T.T., individually,

Plaintiffs-Appellants,

v.

M. COHEN, M.D., KHALID SAVAGED,

M.D., CINDY GALOOTS,1 CNM, JULIO

CABAN, M.D., BAOHUOING TRAN, M.D.,

and NEWARK BETH ISRAEL MEDICAL

CENTER,

Defendants-Respondents.

_______________________________________

Argued January 20, 2016 – Decided

Before Judges Fisher, Espinosa, and Currier.

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, Docket 

No. L-3796-13.

Alan Roth argued the cause for appellants 

(Bendit Weinstock, P.A. and Gary P. 

Falkowitz (Parker Waichman LLP), attorneys; 

Mr. Roth, on the briefs).

Lauren M. Strollo argued the cause for 

respondents (Vasios, Kelly & Strollo, P.A., 

attorneys; Ms. Strollo, of counsel and on 

the brief; Linda Fulop-Slaughter, on the 

brief).

 

1 An amended complaint corrected the name of the defendant to 

Cindy Galeota.

April 27, 2016

APPROVED FOR PUBLICATION

April 27, 2016

APPELLATE DIVISION
2 A-0589-14T1

The opinion of the court was delivered by

CURRIER, J.S.C. (temporarily assigned).

The issue in this medical malpractice case is whether the 

minor plaintiff can take a voluntary dismissal without prejudice 

to avoid a dismissal with prejudice of her complaint for the

failure to provide an affidavit of merit (AOM) within the 

required timeframe. We conclude that Rule 4:37-1(b) cannot be 

used to circumvent the time strictures set forth in the AOM

statute even if the statute of limitations has not yet expired.

As a result, we affirm the trial judge's denial of the motion to 

take a voluntary dismissal and the granting of summary judgment

to defendants.

T.T. brought this action individually and on behalf of her 

daughter A.T., asserting medical malpractice claims against all 

defendants. The complaint alleges that A.T. suffers from Erb's 

palsy as the result of a brachial plexus injury caused at her 

birth in 2011. An answer was filed on December 5, 2013 on 

behalf of all defendants with the exception of Savaged.

On April 7, 2014, defendants moved for summary judgment on 

the grounds that plaintiff2 had failed to file an AOM as required 

 

2 We refer to T.T. and A.T. collectively as plaintiff.
3 A-0589-14T1

by N.J.S.A. 2A:53A-27.3 In opposition to the motion, plaintiff 

attached an AOM dated May 22, 2014.4 During oral argument on the 

motion, plaintiff's counsel requested the court permit the 

filing of a Rule 4:37-1(b)5 motion before consideration of the 

pending summary judgment motion. Counsel advised that the 

failure to file a timely AOM was an "oversight," and in response 

to a question from the judge, conceded that the firm did not 

have a "seasoned New Jersey medical malpractice attorney."6 The 

judge granted the request to adjourn the summary judgment motion 

for a month.

Present counsel entered an appearance as co-counsel for 

plaintiff and filed a motion for a voluntary dismissal under 

Rule 4:37-1(b). At oral argument on that motion, counsel 

 

3 Pursuant to N.J.S.A. 2A:53A-27, a plaintiff has sixty days from 

the date of the defendant's answer to file an AOM. The court 

may grant the plaintiff an additional sixty days "upon a finding 

of good cause." Ibid. The deadline for plaintiff to file an 

AOM was April 4, 2014.

4 The AOM was authored by a physician specializing in the field 

of obstetrics/gynecology and opined that the care exercised in 

the treatment of plaintiff "fell outside acceptable professional 

standards as they apply to representatives and medical personnel 

of the Defendant, Newark Beth Israel Medical Center."

5 Rule 4:37-1(b) states in pertinent part: "An action shall be 

dismissed at the plaintiff's instance only by leave of court and 

upon such terms and conditions as the court deems appropriate. 

. . . Unless otherwise specified in the order, a dismissal under 

this paragraph is without prejudice."

6 The principal office of counsel was located outside New Jersey.
4 A-0589-14T1

requested leave to dismiss the complaint without prejudice, 

advising the judge that if his review of the file deemed it 

appropriate, he would re-file the complaint with an AOM. As 

A.T. was a minor, there remained many years prior to the running 

of the statute of limitations. Counsel also asked the judge to 

again adjourn the summary judgment motion, raising for the first 

time the constitutionality of the AOM statute.

The judge denied the additional adjournment and granted 

summary judgment to defendants, ruling that plaintiff's failure 

to file an AOM within the statutory period required the 

dismissal of her complaint with prejudice. She stated:

The plaintiff seeks a dismissal without 

prejudice, on terms that if it gets re-filed 

then the Affidavit of Merit would be with 

it. That's . . . engaging in a fiction to 

make it look like I'd be doing something 

that . . . really wasn't allowed, which 

would be extending the time beyond the 120 

days. . . . I would be extending the time 

for the Affidavit of Merit beyond the time 

set forth in the statute.

The judge also noted there was no vehicle in which to consider 

the constitutionality of the statute as no motion had been 

presented to her on that issue. She, therefore, declined to 

address that argument.

Plaintiff moved for reconsideration. In counsel's 

supporting certification, he sought a review of the judge's 

previous decision or "in the alternative to have the [c]ourt 
5 A-0589-14T1

declare the Affidavit of Merit Statute unconstitutional." In 

denying the motion, the judge reiterated her reasoning expressed 

during her original ruling and found that no new information had 

been presented to her. In addressing the constitutionality 

argument, she stated:

If anybody wanted to raise that, you should 

have made a motion before I dismissed the 

case, notice to the defendant, opportunity 

to reply, notice to the Attorney General 

. . . . None of that happened. And it's not 

appropriate to raise it, even as minimally 

as it was raised in the papers, on a Motion 

for Reconsideration.

 

This appeal followed.

On appeal, plaintiff argues that (1) the judge erred in 

dismissing the case with prejudice; and (2) the AOM statute is 

unconstitutional as it invades the judiciary's power to regulate 

practice and procedure. We do not address the merits of 

plaintiff's constitutionality argument as we find it was not 

properly raised to the trial judge.7 This court will "decline to 

consider questions or issues not properly presented to the trial 

court when an opportunity for such a presentation is available 

unless the questions so raised on appeal go to the jurisdiction 

 

7 The argument was raised for the first time at oral argument on 

the summary judgment motion and then in a motion for 

reconsideration. The Attorney General was only noticed on the 

motion for reconsideration and did not enter an appearance in 

the trial court or in this appeal.
6 A-0589-14T1

of the trial court or concern matters of great public interest." 

Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) 

(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 

(1973)).

Plaintiff does not contest that her failure to file an AOM 

within the statutory timeframe required a dismissal of the 

complaint; rather, she argues that the judge should have granted 

a dismissal without prejudice under Rule 4:37-1(b) due to A.T.'s

status as a minor. Plaintiff contends that, as there remain

many years until the expiration of the statute of limitations,

and there has been no prejudice to the defendants, the dismissal 

should be without prejudice "in the interest of justice and 

fairness."

A failure to comply with the AOM statute "generally 

requires dismissal with prejudice because the absence of an 

affidavit strikes at the heart of the cause of action." Paragon 

Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 

(2010); see N.J.S.A. 2A:53A-29. Absent extraordinary 

circumstances, a failure to comply with the AOM statute requires 

a dismissal with prejudice. Cornblatt v. Barow, 153 N.J. 218, 

247 (1998). "A dismissal for failure to submit an affidavit of 

merit is a violation of a statute rather than a court-imposed 

rule or order. The violation giving rise to the dismissal goes 
7 A-0589-14T1

to the heart of the cause of action as defined by the 

Legislature." Id. at 244.

Plaintiff does not assert the existence of extraordinary 

circumstances; she merely states that her failure to provide an 

AOM within the required statutory timeframe was an "oversight."

The Supreme Court has determined that attorney inadvertence 

falls short of establishing extraordinary circumstances required 

to avoid a dismissal with prejudice. Palanque v. LambertWoolley, 168 N.J. 398, 405 (2001). See also Burns v. Belafsky, 

326 N.J. Super. 462, 470 (App. Div. 1999) ("Carelessness, lack 

of circumspection, or lack of diligence on the part of counsel 

are not extraordinary circumstances which will excuse missing a 

filing deadline.") (quoting Hyman Zamft and Manard v. Cornell, 

309 N.J. Super. 586, 593 (App. Div. 1998)).

Nonetheless, plaintiff asks us to circumvent the finality 

of the AOM statute by utilizing Rule 4:37-1(b) to dismiss her 

claim without prejudice with the ability to re-file her 

complaint with an AOM at a later time.

The decision whether to dismiss a matter without prejudice 

under Rule 4:37-1(b) lies within the judge's sound discretion.

Mack Auto Imports, Inc. v. Jaguar Cars, Inc., 244 N.J. Super.

254, 258 (App. Div. 1990). "In exercising that discretion, the 

court is chiefly required to protect 'the rights of the 
8 A-0589-14T1

defendant.'" Shulas v. Estabrook, 385 N.J. Super. 91, 97 (App.

Div. 2006) (quoting Burke v. Cent. R. Co., 42 N.J. Super. 387,

397 (App. Div. 1956)). In Shulas, supra, 385 N.J. Super. at 

101-02, we instructed that "an examination into the propriety of 

a voluntary dismissal without prejudice requires an 

investigation into the reasons why the order was sought as well 

as the actions or inactions of the parties that preceded its 

entry." 

Facing defendants' motion for summary judgment and the 

expiration of the statutory timeframe within which to file an 

AOM, plaintiff moved for a voluntary dismissal. Counsel 

candidly explained that this would provide him the opportunity 

to review and investigate the matter and, if appropriate, refile the complaint with an AOM. Since A.T. was a minor, counsel 

reasoned that the new complaint would be filed within the 

statute of limitations, therefore causing no prejudice to 

defendants.

We find that permitting a voluntary dismissal in these 

circumstances would render the AOM statute meaningless in the 

case of a minor plaintiff. The purpose underlying the statute 

has been oft explained. "It was designed as a tort reform 

measure and requires a plaintiff in a malpractice case to make a 

threshold showing that the claims asserted are meritorious. It 
9 A-0589-14T1

is designed to weed out frivolous lawsuits at an early stage and 

to allow meritorious cases to go forward." Galik v. Clara Maass 

Med. Ctr., 167 N.J. 341, 350 (2001) (citing Cornblatt, supra, 

153 N.J. at 242).

If plaintiff were permitted to take a voluntary dismissal,

the timeframes in the AOM statute and the purpose behind it

would be defeated. Defendants would be faced with waiting

indefinitely for a resolution of the litigation against them, 

incurring costs to defend each newly filed action.8 The statute

would be rendered moot.

We have previously addressed this issue and rejected the 

argument that justice requires a dismissal without prejudice due 

to the plaintiff's status as a minor. As we stated in Kubiak v. 

Robert Wood Johnson University Hospital, 332 N.J. Super. 230, 

238 (App. Div. 2000): 

[W]here, as here, a guardian ad litem 

pursues a child's claim on behalf of the 

minor, the guardian steps into the shoes of 

the minor and is obligated to comply with 

court rules and the applicable statutes. In 

short, a minor is protected from a parent's 

or guardian's inaction, but not from their 

improvident actions in the course of 

litigation. 

 

8 We also note the potential impact a dismissal without prejudice 

might have on a health care professional under N.J.S.A. 17:30D22, wherein a medical malpractice premium may not be increased 

if an insured is dismissed from a medical malpractice action 

within 180 days of the filing of the last responsive pleading.
10 A-0589-14T1

Our dissenting colleague posits that the dismissal of 

A.T.'s complaint under these circumstances is "illogical and 

inconsistent with other recognized instances of 'extraordinary 

circumstances'" and "fails to respect the solicitude the law 

affords minors." Plaintiff, however, does not assert the 

existence of extraordinary circumstances nor does she argue

substantial compliance; just that it was "an oversight" not to 

file the AOM. And we agree with our colleague that the tolling 

of the statute of limitations in tort cases for minors has 

afforded them protection. However, those exceptions were put 

into place as a result of legislative action. The Legislature

did not choose to carve out an exception for minors when 

crafting the AOM timeframes. We find this significant. In 

Kubiak, we noted that similar omissions by the Legislature have 

been dispositive. Kubiak, supra, 332 N.J. Super. at 238; see

Scharwenka v. Cryogenics Mgmt., Inc., 163 N.J. Super. 16, 21 

(App. Div. 1978) ("That there is no tolling proviso in the 

[worker's] compensation act is perfectly clear. . . . No 

exception or qualification for infancy or incompetency is 

provided for, in contrast with the express provision therefor in 

the general statutes of limitations."); see also Giantonio v. 

Reliance Ins. Cos., 175 N.J. Super. 309, 315 (Law Div. 1980) 

("[H]ad the Legislature intended that the time limitations be 
11 A-0589-14T1

tolled for an infant until he reaches his majority, it could 

have quite effortlessly inserted just such a specific provision. 

This court cannot by judicial construction do what the 

Legislature expressly or inferentially declined to do.").

We affirm the denial of the voluntary dismissal motion, the 

grant of summary judgment to defendants, and the dismissal with 

prejudice of the complaint.

Affirmed.
RECORD IMPOUNDED

_____________________________________________

FISHER, P.J.A.D., dissenting.

As my colleagues have thoroughly explained, plaintiff 

commenced this medical malpractice action on behalf of a child 

against defendants regarding their participation in the child's 

2011 birth. When plaintiff's counsel, a New York practitioner 

apparently unfamiliar with N.J.S.A. 2A:53A-27, failed to serve 

an affidavit of merit within 120 days, defendants moved for 

summary judgment. New counsel appeared for plaintiff and, in 

seeking to fend off summary judgment, moved for a voluntary 

dismissal. Despite the near nonexistent prejudice to defendants 

if such relief were granted, the motion judge concluded —

because of Kubiak v. Robert Wood Johnson Hosp., 332 N.J. Super.

230 (App. Div. 2000) — that she lacked the discretion to grant a 

voluntary dismissal with or without terms; consequently, summary 

judgment was entered in favor of defendants.

In my view, Kubiak's brightline rule — that a dismissal 

based on a failure to comply with the affidavit of merit statute 

must always be with prejudice even if the claim belongs to a 

minor — is illogical and inconsistent with other recognized 

instances of "extraordinary circumstances" that have alleviated 

others from the consequences of their similar failure; in 

particular, Kubiak fails to respect the solicitude the law 
2 A-0589-14T1

affords minors. Accordingly, unlike my colleagues, I would not 

adhere to Kubiak and dissent for the following reasons.

To be fair to the motion judge, I would observe that she 

was required to follow our earlier decision in Kubiak, see

Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 40 (App. 

Div. 2003), and cannot be faulted for failing to exercise the 

discretion otherwise afforded by Rule 4:37-1(b). The motion 

judge dutifully followed Kubiak where, in similar circumstances, 

we permitted no alternative to a dismissal with prejudice when a 

child's representatives failed to timely serve an affidavit of 

merit. In reaching that conclusion, the Kubiak panel first 

recognized that a minor is bound to a guardian's acts or 

omissions. 332 N.J. Super. at 238. That is surely true, but it 

does not necessarily follow that the minor's claim should be 

treated in all respects as if brought by an adult. The law has 

always been solicitous and protective of under-aged litigants, 

Riemer v. St. Clare's Riverside Med. Ctr., 300 N.J. Super. 101, 

110 (App. Div. 1997) — a policy which has spawned, among other 

things: equitable tolling of a child's wrongful death suit even 

though the Wrongful Death Act, without exception, mandates that 

such a suit be commenced within two years of the date of death, 
3 A-0589-14T1

LaFage v. Jani, 166 N.J. 412, 430-31 (2001)1; a looser 

application of the entire controversy doctrine in actions 

brought on behalf of minors, Riemer, supra, 300 N.J. Super. at 

110; a process requiring judicial approval of settlements 

reached on behalf of minors, R. 4:44; and liberal judicial 

scrutiny of minors' pre-tort releases, Hojnowski v. Vans Skate 

Park, 187 N.J. 323, 333-34 (2006). So, while I agree with Kubiak

that a minor must in some sense be bound to the consequences of 

a guardian's omission, see Zukerman v. Piper Pools, Inc., 232 

N.J. Super. 74, 96 (App. Div. 1989), the examples cited above 

demonstrate those consequences are not coextensive with those 

arising in suits commenced by adults on their own behalf.

In the present circumstances, a suit brought on behalf of 

an adult would rightly be finally terminated. But the affidavit 

of merit statute, although admittedly silent on its application 

to minors — just as the Wrongful Death Act is similarly silent —

does not suggest a guardian's procedural missteps must be fatal 

to a minor's claim any more than was the case in LaFage.

 

1 In LaFage, a widow commenced on her own behalf and on behalf of 

her minor children a suit alleging the wrongful death of her 

husband (their father) twenty-seven days beyond the two-year 

statute of limitations. 166 N.J. at 418. The Court found the 

widow's claim to be time-barred, but the children were entitled 

to equitable tolling because of their status as minors. Id. at 

431.
4 A-0589-14T1

Indeed, it seems to me that the Kubiak holding rests on the 

false premise that "[a] dismissal for failure to comply with the 

[affidavit of merit statute] is not any different than a 

dismissal after plenary or summary adjudication." 332 N.J. 

Super. at 238. This assertion misinterprets everything the 

Supreme Court has said about the intent of that statute. For 

example, the Court has held that the affidavit of merit statute 

was designed only to compel a plaintiff to make "a threshold 

showing" that a malpractice claim is not frivolous, In re 

Petition of Hall, 147 N.J. 379, 391 (1997); a failure to make 

that showing only permits an inference — perhaps true, perhaps 

not — that the claim is frivolous. In other words, the 

affidavit of merit statute was designed to "identif[y]" 

"meritless lawsuits . . . at an early stage of the litigation," 

Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J.

415, 421 (2010); the statute does not require proof the claim 

will succeed nor does compliance guarantee an adjudication on 

the merits. That is, experience and common sense suggest that a 

failure to comply does not mean a claim lacks merit or will not 

succeed if submitted to a factfinder. A litigant may fail to 

comply for reasons having nothing to do with a claim's merits, 

such as negligence, inadvertence, or ignorance of the law. 

Thus, I disagree with Kubiak's premise that the failure to serve 
5 A-0589-14T1

an affidavit of merit is the equivalent of an adjudication of a 

case on its merits. Because this faulty premise seems to be the 

linchpin to Kubiak's elimination of a minor's opportunity to 

commence suit later — i.e., how can one later sue on a claim 

already adjudicated on its merits? — I would depart from Kubiak

and reaffirm that trial judges possess the discretion to 

preserve for the future a minor's malpractice action in 

circumstances such as those at hand.

I also reach this conclusion because the consequences of 

counsel's oversight here are disproportionate both when compared 

to circumstances previously found excusable or exceptional and 

when compared to the harm, if any, incurred by defendants. As 

to the former, the cases cited earlier demonstrate not every 

failure to comply with the statute is fatal. Because "there is 

no legislative interest in barring meritorious claims brought in 

good faith," Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 359 

(2001), the Supreme Court has held that the doctrine of 

substantial compliance may be invoked as a means of avoiding

dismissal for technical violations, see, e.g., Fink v. Thompson, 

167 N.J. 551, 561-65 (2001) (finding substantial compliance when 

the affidavit did not name defendant but a detailed expert 

report focused on defendant's conduct); Galik, supra, 167 N.J.

at 353-57 (excusing failure where plaintiff had served 
6 A-0589-14T1

defendant's insurer prior to suit with unsworn expert reports 

and had taken steps to later comply with the statute), and has 

allowed for dismissals without prejudice when the equities 

suggest a "temper[ing] [of] the draconian results of an 

inflexible application of the statute," Paragon, supra, 202 N.J.

at 422 (quoting Ferreira v. Rancocas Orthopedic Assocs., 178 

N.J. 144, 151 (2003)). Indeed, in Paragon, the Court found the 

equities tilted in favor of a condominium association 

represented by competent counsel who failed to comply because of 

an assumption that the trial court's failure to schedule a 

Ferreira conference tolled the statute's time bar. Even though, 

as the Court explained, counsel was "not as assiduous as he 

could or should have been," the uncertainty about whether 

Ferreira had created a "safe harbor" for late affidavits of 

merit constituted an "exceptional circumstance" that warranted 

relief. Paragon, supra, 202 N.J. at 425-26. That being so, and 

particularly when coupled with the law's solicitude for minors, 

I fail to see why we should not also characterize as 

"exceptional" the minor's attorney's fumbling of the affidavit 

of merit requirement,2 and I would hold that a trial judge has 

 

2 Implicit in Kubiak and today's decision is an understanding 

that the minor will not be entirely deprived of a remedy — that 

her medical malpractice action has been replaced with a legal 

malpractice action, and all's right with the world. The adequacy 

(continued)
7 A-0589-14T1

discretion to grant a voluntary dismissal without prejudice in 

this circumstance.3 The flexibility judges possess when 

considering an application for a voluntary dismissal 

demonstrates why that is a better course than that compelled by 

Kubiak.

The pivotal question in any application for a voluntary 

dismissal centers, often exclusively, on the prejudice to 

adverse parties. See Shulas v. Estabrook, 385 N.J. Super. 91, 

97 (App. Div. 2006); Burke v. Central R. Co., 42 N.J. Super.

387, 398 (App. Div. 1956). Here, the harm or prejudice to 

defendants is minimal, arguably nonexistent. Defendants are now 

aware of the minor's claim, which could have otherwise lain 

dormant for many years in light of the tolling provision 

legislatively created for minors. See N.J.S.A. 2A:14-21 

 

(continued)

of that relegated remedy, of course, requires an assumption of 

many things the record does not disclose. But even if there is 

an adequate remedy for the child at the end of the day, albeit 

against other parties, is this exchange of one claim for another 

a societal interest that we should be seeking to advance? Or, 

more to the point, is this how the policies underlying the 

affidavit of merit statute are to be served?

3 I find no significance in plaintiff's failure to describe 

former counsel's error as "extraordinary." We should 

characterize and decide what is presented through our own 

interpretation of the applicable legal principles and not be 

held hostage to labels affixed by others. See, e.g., Rosenstein 

v. State, Dep't of Treas., Div. of Pensions & Benefits, 438 N.J. 

Super. 491, 496-97 (App. Div. 2014).
8 A-0589-14T1

(declaring that the two-year personal injury statute of 

limitations is tolled for an injured minor until the minor turns 

eighteen). And the fact that defendants have been called upon 

to appear unnecessarily in this aborted action, and incur 

counsel fees, is something a trial court may redress while 

granting a voluntary dismissal without prejudice. See R. 4:37-

1(b) (authorizing a dismissal without prejudice "upon such terms 

and conditions as the court deems appropriate"). I would, 

therefore, remand for entry of a voluntary dismissal without 

prejudice4 and allow for the judge's consideration of whether 

there is a need for the imposition of terms necessary to 

alleviate any harm or prejudice defendants may have suffered. 

This is a vastly better approach in that it preserves the 

minor's claim, protects defendants from harm, and fosters 

disposition of cases on their merits rather than on procedural 

missteps. See Ragusa v. Lau, 119 N.J. 276, 284 (1990); Midland 

Funding LLC v. Albern, 433 N.J. Super. 494, 499 (App. Div. 

2013); Tumarkin v. Friedman, 17 N.J. Super. 20, 27 (App. Div. 

1951), certif. denied, 9 N.J. 287 (1952). Consequently, unlike 

 

4 Ordinarily, I would say we should remand for the judge's 

exercise of her discretion as to whether to grant a voluntary 

dismissal, but I can see here no principled basis for denying 

such an application.
9 A-0589-14T1

my colleagues, I would depart from Kubiak and reverse the order 

under review here.

I respectfully dissent for these reasons.