SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0144-18T4

ZORICA DIMITROV, for herself

as spouse, and Administratrix ad 

Prosequendum and General

Administrator of the ESTATE OF

DIMITRI DIMITROV, Deceased,

Plaintiff-Appellant,

v.

SAINT MARY'S HOSPITAL,

HAMILTON PLAZA NURSING 

AND REHABILITATION CENTER,

AMEDISYS HOME HEALTH, ST.

JOSEPH'S REGIONAL MEDICAL

CENTER, DR. LUBOMIR JAWNY,

HACKENSACK UNVERSITY

MEDICAL CENTER,

Defendants-Respondents.

________________________________

Argued October 3, 2019 – Decided November 14, 2019

Before Judges Fisher, Gilson, and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-2241-18.

NOT FOR PUBLICATION WITHOUT THE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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A-0144-18T4

Steven V. Schuster argued the cause for appellant.

Jayne E. Turner argued the cause for respondent Saint 

Mary's Hospital (Rosenberg Jacobs Heller & Fleming, 

PC, attorneys; Jayne E. Turner, on the brief).

Andrew P. Watto argued the cause for respondent 

Hamilton Plaza Nursing and Rehabilitation Center 

(Buchanan Ingersoll & Rooney, PC, attorneys; Alexis 

A. Langella and Andrew P. Watto, of counsel and on 

the brief; Matthew T. Corso, on the brief).

John B. Mullahy argued the cause for respondent 

Amedisys Home Health and Hospice Care (Kaufman 

Borgeest & Ryan, LLP, attorneys; John B. Mullahy and 

Jonathan D. Hallett, on the brief).

Charles Edward Murray III argued the cause for St. 

Joseph's Regional Medical Center (Farkas & Donohue, 

LLC, attorneys; Charles Edward Murray III, of counsel 

and on the brief).

William J. Buckley argued the cause for respondent Dr. 

Lubomir Jawny (Schenck, Price, Smith & King, LLP, 

attorneys; William J. Buckley and Sandra Calvert 

Nathans, of counsel and on the brief).

Judith A. Wahrenberger argued the cause for 

respondent Hackensack University Medical Center 

(Ruprecht Hart Ricciardulli & Sherman, LLP, 

attorneys; Judith A. Wahrenberger, of counsel; Louis 

A. Ruprecht, on the brief).

PER CURIAM

Plaintiff asserted claims under the Wrongful Death Act, N.J.S.A. 2A:31-

1 to -6, and Survivor Act, N.J.S.A. 2A:15-3. She alleges that the six defendants 
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committed medical malpractice when they provided care to her husband in the 

last year of his life. The decedent died on December 17, 2014. Plaintiff filed 

this action on March 29, 2018. She appeals from orders that dismissed her 

claims with prejudice because they were barred by the applicable two-year 

statutes of limitations. We affirm.

I.

Plaintiff Zorica Dimitrov is the widow and administratrix of the estate of 

her deceased husband Dimitri Dimitrov (decedent). During 2014, decedent 

received medical care at various hospitals and from various medical providers, 

including his personal physician. As already noted, he died on December 17, 

2014. 

This is the second action plaintiff filed asserting claims arising out of the 

death of her husband. The only orders on appeal before us are the orders 

dismissing plaintiff's second action. Nevertheless, a brief procedural summary 

of plaintiff's first action helps to place the second action in context.

Plaintiff filed her first complaint on December 16, 2016 (the First Action). 

In that complaint, plaintiff asserted claims under the Wrongful Death Act and 

the Survivor Act arising out of the death of her husband. She also asserted 

claims for her loss of consortium and services. Plaintiff named six defendants: 
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(1) Saint Mary's General Hospital; (2) CPL (Hamilton), LLC, d/b/a/ Hamilton 

Plaza Nursing and Rehabilitation Center; (3) Amedisys, Inc. i/p/a Amedisys 

Home Health and Hospice Care; (4) Hackensack University Medical Center; (5) 

St. Joseph's Regional Medical Center; and (6) Dr. Lubomir Jawny.

In July 2017, plaintiff's First Action was administratively dismissed 

without prejudice by the court due to plaintiff's failure to prosecute that action. 

Months later, plaintiff filed a motion to reinstate. On November 3, 2017, that 

motion was denied for failure to properly serve defendants; thereafter, plaintiff 

refiled the motion and properly served defendants. On January 5, 2018, the trial 

court in the First Action denied that motion, finding that plaintiff had failed to 

serve any defendants before her complaint was dismissed in July 2017, plaintiff 

had not served all the defendants by the time she filed her motion to reinstate,

and defendants would be prejudiced by allowing the complaint to be reinstated. 

The court in the First Action then entered an order denying plaintiff's motion to 

reinstate the complaint and denying defendants' motions to dismiss the 

complaint with prejudice. Plaintiff filed a notice of appeal in the First Action. 

On March 26, 2018, we dismissed that appeal without prejudice as an appeal 

from an interlocutory order. Plaintiff took no further action in the First Action.
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Instead, on March 29, 2018, plaintiff filed a new and separate action (the 

Second Action). The complaint in the Second Action asserted the same claims 

that had been asserted in the First Action. In that regard, plaintiff iterated her 

wrongful death and survivor claims based on the alleged medical malpractice 

resulting in the death of her husband. Moreover, the complaint in the Second 

Action named the same six defendants named in the First Action.

Defendants moved to dismiss the complaint in the Second Action, arguing 

that plaintiff's claims were barred by the applicable statutes of limitations. The 

trial court in the Second Action agreed and held that plaintiff's claims were

governed by two-year limitations periods. Accordingly, on July 30, 2018, the 

trial court entered orders dismissing with prejudice plaintiff's claims in the 

Second Action. The court entered six separate orders; accordingly, there are 

orders dismissing the claims against each of the six defendants.

Plaintiff appealed from the orders entered on July 30, 2018. In her appeal, 

plaintiff sought to raise arguments concerning the dismissal of the First Action.

In response to a motion to strike portions of plaintiff's appellate brief, we entered 

an order limiting plaintiff's appeal to the orders entered on July 30, 2018, in the 

Second Action.
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II.

The only issue before us on this appeal is whether the trial court correctly 

dismissed plaintiff's Second Action with prejudice based on the applicable 

statutes of limitations. We review this issue de novo because "determining the 

date upon which a statute of limitations begins to run is an issue of law, subject 

to plenary review." J.P. v. Smith, 444 N.J. Super. 507, 520 (App. Div. 2016) 

(citing Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013)); see also State ex rel. 

Campagna v. Post Integrations, Inc., 451 N.J. Super. 276, 279 (App. Div. 2017)

(reviewing de novo an order dismissing a complaint on a motion brought 

pursuant to Rule 4:6-2). 

Read in the light most favorable to plaintiff, her complaint alleges claims 

based on three grounds: (1) decedent's death; (2) decedent's pain and suffering 

prior to his death; and (3) her loss of "services and consortium" resulting from 

decedent's death. Accordingly, plaintiff's claims are based on the Wrongful 

Death Act and the Survivor Act. Both those Acts have a two-year statute of 

limitations, which use identical language: "[e]very action brought under this
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chapter shall be commenced within [two] years after the death of decedent, and 

not thereafter . . . ." N.J.S.A. 2A:31-3; N.J.S.A. 2A:15-3.1

In this case, decedent passed away on December 17, 2014. Plaintiff filed 

her Second Action more than three years later on March 29, 2018. 

Consequently, all the claims in that Second Action were time-barred.

Plaintiff argues that the statute of limitations applicable to her claims 

under the Survivor Act should be given the benefit of the discovery rule. She 

goes on to contend that she discovered her cause of action at the time that she 

consulted legal counsel in August 2016. We reject this argument. 

The discovery rule is an equitable principle under which the accrual of a 

cause of action is delayed "'until the injured party discovers, or by an exercise 

of reasonable diligence and intelligence should have discovered[,] that he [or 

she] may have a basis for an actionable claim.'" Viviano v. CBS, Inc., 101 N.J. 

538, 546 (1986) (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)). In both the 

Wrongful Death Act and the Survivor Act the Legislature has identified the 

death of the decedent as a fixed event and, thus, the discovery rule does not 

1 The statute of limitations in both acts have an exception not applicable in this 

case. The exception states: "provided, however, that if the death resulted from 

murder, aggravated manslaughter or manslaughter for which the defendant has 

been convicted, found not guilty by reason of insanity or adjudicated delinquent, 

the action may be brought at any time." N.J.S.A. 2A:31-3; N.J.S.A. 2A:15-3.
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apply. See Presslaff v. Robins, 168 N.J. Super. 543, 546 (App. Div. 1979) 

(holding that the discovery rule does not apply to claims under the Wrongful 

Death Act because it contains its own limitations period that runs from the death 

of the decedent, rather than from an unspecific date of accrual); see also 

Brookins v. Murray, 131 N.J. 141, 151 (1993) (explaining that New Jersey tends 

to reject application of the discovery rule "for statutes of limitations that run 

from a fixed, specified event").

Before 2010, the Survivor Act contained no explicit statute of limitations. 

Accordingly, prior to 2010, courts looked to the general statute of limitations set 

forth in N.J.S.A. 2A:14-2. See Bernoskie v. Zarinsky, 344 N.J. Super. 160, 164 

(App. Div. 2001). Under N.J.S.A. 2A:14-2 the discovery rule can, under the 

right set of facts, apply because the limitations period begins to run from the 

date the cause of action accrues. Presslaff, 168 N.J. Super. at 546. In 2009, 

however, the Legislature added a statute of limitations to the Survivor Act and 

expressly provided that any action under the Survivor Act "shall be commenced 

within two years after the death of decedent, and not thereafter . . . ." N.J.S.A. 

2A:15-3. The current language of the Survivor Act mandates that no action 

asserting claims under that Act can be commenced later than two years after the 
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death of the decedent. Consequently, the discovery rule does not apply. 2

Brookins, 131 N.J. at 151; Presslaff, 168 N.J. Super. at 546.

Plaintiff also argues that the statutes of limitations should be equitably 

tolled. We disagree. Equitable tolling of a statute of limitations is applied 

sparingly and generally has been applied in three circumstances:

(1) [where] "the complainant has been induced or 

tricked by his adversary's misconduct into allowing the 

filing deadline to pass" . . .

(2) where a plaintiff has "in some extraordinary way"

been prevented from asserting his [or her] rights [and] 

. . .

(3) where a plaintiff has timely asserted his [or her] 

rights mistakenly by either defective pleading or in the 

wrong forum.

[Binder v. Price Waterhouse & Co., L.L.P., 393 N.J. 

Super. 304, 312 (App. Div. 2007) (first and third 

alterations in original) (quoting Freeman v. State, 347

N.J. Super. 11, 31 (App. Div. 2002)).]

The trial court in this case correctly found that there was no evidence that 

would support tolling the statutes of limitations. Plaintiff has not alleged that 

any defendant engaged in the kind of action that would have prevented her from 

2 We have held that that accrual of a survivorship claim can begin to run before 

the death of the decedent if the decedent knew or should have known of the 

claim before his or her death. Warren v. Muenzen, 448 N.J. Super. 52, 64-65, 

67-68 (App. Div. 2016).
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asserting her rights in a timely manner. Indeed, a review of plaintiff's complaint 

establishes that all of her claims arise out of the death of her husband. While 

that event is certainly tragic, it was an event known to plaintiff when it occurred.

Finally, in her reply brief, plaintiff suggests that we should consider the 

orders dismissing her First Action. We have already noted that this appeal of 

the dismissal of the Second Action does not include a review of the orders 

entered in the First Action. We see no basis for reconsidering that 

determination. 

Affirmed.