SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1449-22 

SOFIA PEREZ, 

 Plaintiff-Appellant, 

and 

CECILIA PEREZ, 

 Plaintiff, 

v.

GABRIELA VILLASENOR, 

and ESTAFANIA VILLASENOR, 

 Defendants-Respondents. 

______________________________ 

Argued January 17, 2024 – Decided January 24, 2024 

Before Judges Haas and Gooden Brown. 

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-2959-19.

David A. Gardner argued the cause for appellant. 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-1449-22

Brian Michael Bartlett argued the cause for respondents 

(Leyden, Capotorto, Ritacco, Corrigan & Sheehy, 

attorneys; Lauren Chaump, of counsel and on the brief). 

PER CURIAM 

 Plaintiff Sofia Perez appeals from the Law Division's November 18, 2022 

order denying her motion for reconsideration of the trial court's October 3, 2022 

order granting defendants' Gabriela Villasenor and Estefania Villasenor's 

motion for summary judgment and dismissing her complaint with prejudice.1 

Because the trial court failed to adequately address the factual and legal issues 

raised by the parties, we reverse and remand for further proceedings. 

 On November 29, 2017, plaintiff was driving her car and was rear-ended 

by defendant Gabriela Villasenor. Plaintiff alleged she incurred injuries as a 

result of the accident. 

Plaintiff was insured and had elected the verbal threshold limitation as 

permitted under the Automobile Insurance Cost Reduction Act (AICRA), 

N.J.S.A. 39:6A-1.1 to -35. Pursuant to N.J.S.A. 39:6A-8(a), an insured who 

makes this selection may maintain an action for noneconomic losses only if she 

1

 Plaintiff did not file a timely notice of appeal from the trial court's order 

granting defendants' motion for summary judgment. Therefore, we previously 

issued an order limiting plaintiff's appeal to her challenge to the denial of her 

motion for reconsideration. 
3 A-1449-22

"has sustained a bodily injury which results in death; dismemberment; 

significant disfigurement or significant scarring; displaced fractures; loss of a 

fetus; or a permanent injury within a reasonable degree of medical probability, 

other than scarring or disfigurement." (emphasis added). 

 N.J.S.A. 39:6A-8(a) requires a plaintiff seeking to recover noneconomic 

losses to file "a certification from the licensed treating physician or a boardcertified licensed physician to whom the plaintiff was referred by the treating 

physician." Under penalty of perjury, the certification must state that the 

plaintiff has sustained at least one of the injuries described above. Ibid. The 

physician's certification must be based on objective clinical evidence, which 

may include medical testing, but this testing cannot be "dependent entirely upon 

subjective patient response." Ibid. The physician must file the certification 

within sixty days following the date of the answer to any complaint filed by the 

plaintiff, although an extension of up to sixty days may be granted by the trial 

court upon a finding of good cause. Ibid. 

 Plaintiff filed her complaint against defendants2 on November 29, 2019. 

Plaintiff alleged in count one that she sustained "serious and permanent personal 

2

 Plaintiff named the driver of the car that struck her vehicle, Gabriela 

Villasenor, and Gabriela's parent, Estefania Villasenor, as defendants. 
4 A-1449-22

injuries requiring the care and treatment of physicians, hospitalizations[,] and 

medication," and that she would continue to suffer "pain, suffering[,] and a loss 

of enjoyment of life as well as such further damages proven at time of trial." 3

Because plaintiff was seeking noneconomic damages for her injuries, AICRA 

required that she prove that her injuries fell within one of the six categories set 

forth in N.J.S.A. 39:6A-8(a). 

Defendant filed an answer to the complaint on January 3, 2020. Plaintiff 

did not file the treating physician certification required by N.J.S.A. 39:6A-8(a). 

 However, during the discovery period, plaintiff provided answers to 

defendants' interrogatories. Asked to provide a "detailed description of [the] 

nature, extent[,] and duration of any and all injuries[,]" plaintiff replied that she 

suffered a "[c]losed displaced intraarticular fracture of the head of the radius of 

the right elbow." She claimed this fracture was also permanent under the 

separate category for permanent injuries set forth in N.J.S.A. 39:6A-8(a). In 

addition, plaintiff asserted she had incurred a permanent 

"[a]ggravated/[e]xacerbated shoulder tear." 

3

 Plaintiff's complaint included a second count alleging that a passenger in her 

car, Cecilia Perez, also suffered injuries. The outcome of any proceedings 

involving this individual is not clear from the record and none of the parties' 

arguments on appeal concern this individual. 
5 A-1449-22

 In her interrogatory answers, plaintiff described the diagnostic tests 

conducted of her elbow injury. Plaintiff wrote that x-rays taken on December 

12, 2017 "showed [a] displaced intraarticular fracture of [her] right radial head." 

A follow-up x-ray on January 8, 2018 "revealed [full] healing with no further 

displacement." 

 Sometime during discovery, plaintiff either provided, or defendants 

obtained on their own, copies of two written reports prepared by Dr. Kevin C. 

McDaid, who was plaintiff's treating physician. McDaid's December 19, 2017 

report stated that "[e]lbow x-rays . . . taken in the Emergency Room" on that 

date "show[ed] a minimally displaced intraarticular radial head fracture." 

McDaid assessed the injury as a "[c]losed displaced fracture of head of right 

radius," and prescribed treatment appropriate for a "[c]losed displaced fracture 

of head of right radius."

 In his February 23, 2018 report, McDaid's assessment of the injury 

remained the same. He noted there had "been no further displacement" and 

continued to provide treatment to plaintiff for a "[c]losed displaced fracture of 

head of right radius." Plaintiff did not list McDaid or any other physician as an 

expert in her interrogatory answers. 
6 A-1449-22

 Defendants retained an expert, Dr. Joseph R. Zerbo, who conducted an 

examination of plaintiff on June 21, 2021. Zerbo also reviewed plaintiff's 

medical records, including the two McDaid reports. Zerbo prepared reports in 

which he stated that plaintiff suffered a "[n]on-displaced healed fracture of the 

right radial head" in her elbow and that this fracture was now fully healed and, 

therefore, not permanent. 

 After the discovery period ended on April 30, 3022, the parties went to 

arbitration on July 14, 2022. Arbitration was unsuccessful. 

On August 2, 2022, defendants filed a motion for summary judgment. 

Citing Zerbo's opinion that plaintiff's elbow injury was not permanent, 

defendants argued that her complaint had to be dismissed under N.J.S.A. 39:6A8(a). 

In their brief, defendants relied upon Zerbo's expert opinion that plaintiff's 

elbow injury was not permanent and that plaintiff had failed to name an expert 

who could contradict Zerbo's position on the issue of permanency. Defendants 

also pointed out that Zerbo had opined that plaintiff suffered a "non-displaced 

fracture of the radial head [that] had gone into complete radiographic and 

clinical healing." 
7 A-1449-22

 Plaintiff filed opposition to the motion on August 30, 2022. Plaintiff's 

principal argument was that she had suffered a displaced fracture in the accident 

and that a displaced fracture is one of the injuries listed in N.J.S.A. 39:6A-8(a) 

that permits the insured to seek noneconomic damages. A plaintiff who has 

suffered a displaced fracture does not have to also show that the injury is 

permanent. Permanency is a separate category of injury covered by N.J.S.A. 

39:6A-8(a). Villanueva v. Lesack, 366 N.J. Super. 564, 565 (App. Div. 2004). 

Significantly, plaintiff no longer claimed that any of her injuries were 

permanent.. 

 In addition, plaintiff submitted a late physician's certification from 

McDaid. In this August 10, 2022 submission, McDaid certified "within a 

reasonable degree of medical probability that [plaintiff] has sustained the 

following injuries to body parts as a result of the [November 29, 2017] motor 

vehicle accident: minimally displaced intraarticular radial head fracture of the 

right elbow." McDaid further stated that the December 12, 2017 and February 

22, 2018 right elbow x-rays cited in his reports supported his diagnosis. 

 On September 9, 2022, the trial court heard oral argument on defendants' 

motion. Plaintiff's attorney argued that plaintiff suffered a displaced fracture of 

her elbow and that this injury enabled her to seek noneconomic damages under 
8 A-1449-22

N.J.S.A. 39:6A-8(a). Defendants' attorney responded by asserting that plaintiff 

had failed to file a "certificate of permanency" or any "expert report speaking to 

permanency." The trial court reserved decision. 

 On October 3, 3022, the court rendered a brief written decision granting 

defendants' motion for summary judgment. The order mistakenly stated that 

defendants' motion was "unopposed." The court's decision did not refer to 

plaintiff's argument that she suffered a displaced elbow fracture that enabled her 

to vault the verbal threshold requirement of N.J.S.A. 39:6A-8(a). The court did 

not attempt to resolve the factual dispute between the parties as to whether the 

plaintiff had a displaced or a non-displaced fracture. 

Instead, the court relied upon a case setting forth the factors a plaintiff 

must prove to demonstrate she suffered a permanent injury, Jacques v. Kinsey, 

347 N.J. Super. 112, 117 (Law Div. 2001), and concluded:

In the present case, plaintiff is subject to the limitation 

on lawsuit threshold. Accordingly, plaintiff is required 

to prove a permanent injury through objective, credible

medical evidence. Plaintiff has not provided any expert 

opinion that she sustained a permanent injury based on 

objective, credible medical evidence. 

Accordingly, [p]laintiff cannot sustain [her] burden of 

proof and thus, [d]efendant's [m]otion for [s]ummary 

[j]udgment is hereby GRANTED. 
9 A-1449-22

 Plaintiff thereafter filed a motion for reconsideration. Plaintiff argued that 

in opposition to the summary judgment motion, she submitted McDaid's reports 

stating that plaintiff had sustained a displaced elbow fracture that enabled her to 

pass the verbal threshold without regard to whether the injury was permanent. 

Plaintiff also asserted that although it was late, the court should accept and 

consider McDaid's certification, which essentially repeated the information set 

forth in McDaid's reports and in her answers to interrogatories. 

 Following oral argument, the trial court denied plaintiff's motion on 

November 18, 2022. In a short written opinion, the court ignored plaintiff's 

answers to interrogatories, McDaid's reports, and defendants' own expert's 

reports that summarized McDaid's findings. Instead, the court incorrectly stated 

that plaintiff failed to present any evidence that she had a displaced fracture 

"before the end of the discovery period and arbitration." Finding that 

"[a]mendments to interrogatory answers are impermissible" absent exceptional 

circumstances, the court declined to reconsider its prior dismissal of plaintiff's 

action. This appeal followed. 

 On appeal, plaintiff argues that the trial court erred by denying her motion 

for reconsideration. We agree. 
10 A-1449-22

 We review the denial of a motion for reconsideration to determine whether 

the trial court abused its discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 

567, 582 (2021). Reconsideration should only be granted in :those cases which 

fall into that narrow corridor in which either 1) the [c]ourt has expressed its 

decision upon a palpably incorrect or irrational basis, or 2) it is obvious that the 

[c]ourt either did not consider, or failed to appreciate the significance of 

probative, competent evidence[.]" Cummings v. Bahr, 295 N.J. Super. 374, 384 

(App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. 

Div. 1990)). Therefore, we have held that "the magnitude of the error cited must 

be a game-changer for reconsideration to be appropriate." Palombi v. Palombi, 

414 N.J. Super. 274, 289 (App. Div. 2010). 

 After reviewing the entire record in the light of this standard, we are 

convinced that the trial court mistakenly exercised its discretion when it refused 

to reconsider its decision granting summary judgment to defendants. The court's 

decision to grant summary judgment was "palpably incorrect" because the court 

found that plaintiff's complaint had to be dismissed because she did not prove 

she sustained a permanent injury in the accident. Here, however, plaintiff was 

not alleging a permanent injury. Instead, she claimed to have suffered a 

displaced fracture of her elbow. 
11 A-1449-22

 "To vault AICRA's verbal threshold, an accident victim need only prove 

an injury as defined in the statute. Davidson v. Slater, 189 N.J. 166, 181 (2007). 

A displaced fracture is specifically listed in N.J.S.A. 39:6A-8(a) as one of the 

six categories of injuries that enable a plaintiff to get over the verbal threshold. 

A permanent injury is an entirely separate category under the statute. 

Indeed, the Legislature has categorized displaced 

fractures separate from other injuries that are required 

to be permanent to permit compensation for 

noneconomic loss; instead, displaced fractures are 

listed in the statute along with death, dismemberment, 

loss of a fetus, and significant disfigurement or 

scarring, forms of harm which, consistent with our 

jurisprudence, have allowed a plaintiff to sue for 

noneconomic damages without the need for a plaintiff 

to prove the injury has had a serious impact upon her 

life. 

[Villanueva, 366 N.J. Super. at 569.] 

 Therefore, the trial court clearly erred by holding that plaintiff was 

required to demonstrate that she had sustained a permanent injury. All plaintiff 

had to show was that she had suffered a displaced fracture in the accident. 

 The trial court did not address plaintiff's claim on this point. It failed to 

even mention the issue, even though both parties had raised it at oral argument. 

Like every other case that comes before our courts, the resolution of this matter 

"required a careful analysis and the requisite findings to insure a just result." 
12 A-1449-22

Bailey v. Bd. of Rev., 339 N.J. Super. 29, 33 (App. Div. 2001). This case cried 

out for "a clear and concise determination that [plaintiff] [had] been heard and 

[her] arguments considered." Ibid. 

That did not occur here. Because the trial court granted summary 

judgment without considering or appreciating "the significance of probative, 

competent evidence," the court should have reconsidered its decision. 

Cummings, 295 N.J. Super. at 384. 

 The trial court should also have revisited its summary judgment decision 

because there was clearly a dispute between the parties as to whether plaintiff 

suffered a displaced fracture or a non-displaced fracture. While the court found 

that plaintiff needed to present an expert in order to prove a permanent injury, 

it made no ruling concerning whether an expert was needed to prove the status 

of plaintiff's fracture or whether McDaid, as the treating physician, was 

competent to perform this analysis. Because there was a genuine issue as to 

these material facts, summary judgment was inappropriate, absent a full airing 

and resolution of the matter by the court. R. 4:46-2. 

 Because of this, the trial court's denial of plaintiff's motion for 

reconsideration cannot stand. The court's rationale for that decision lacked a 

cogent basis in the record. The court found that plaintiff raised the issue of the 
13 A-1449-22

displaced fracture for the first time in its reconsideration motion. However, as 

set forth in detail above, plaintiff provided defendants and the court with her 

answers to interrogatories and McDaid's reports during the discovery period. 

Defendants' expert referred to this information in his reports. Thus, the court's 

finding that "[p]laintiff did not present that evidence before the end of the 

discovery period and arbitration" is clearly incorrect. 

 To be sure, plaintiff's physician certification was woefully out of time. 

However, the trial court did not directly address this issue in any of its decisions. 

It is well established that a court should not automatically dismiss a plaintiff's 

complaint when the certification required by N.J.S.A. 39:6A-8(a) is filed late. 

Casinelli v. Manglapus, 181 N.J. 354, 365 (2004). As the Supreme Court stated: 

[W]e view the tardy presentation of a physician 

certification as falling under the broad umbrella of 

failure to make discovery, thus subject to the arsenal of 

remedies provided in our rules for such procedural 

errors. Put another way, the [trial] court has available 

to it, along with dismissal, where warranted, discoverytype sanctions such as orders to compel, the award of 

reasonable expenses incurred in obtaining the 

certification, and counsel fees. See R. 4:23-1 to -5. In 

each case, the court should assess the facts, including 

the willfulness of the violation, the ability of plaintiff 

to produce the certification, the proximity of trial, and 

prejudice to the adversary, and apply the appropriate 

remedy. That methodology provides judges with 

discretion to choose a response that is proportionate to 

the procedural stimulus; saves for trial the meritorious 
14 A-1449-22

claims of truly injured victims; and allows dismissal of 

cases in which a plaintiff cannot or will not supply a 

certification or in which a plaintiff's conduct has

irremediably prejudiced the defendant. 

[Casinelli, 181 N.J. at 365.] 

Because the trial court did not fully consider the issue of an appropriate remedy 

for plaintiff's late submission of the physician's certification, we must remand 

this matter to enable that to occur. 

 In sum, the trial court's decision on the summary judgment motion was 

based upon an incorrect legal premise, namely, that a plaintiff must demonstrate 

she has sustained a permanent injury to vault AICRA's verbal threshold. When 

plaintiff brought this mistake to the court's attention and again pointed out the 

information on which her displaced fracture claim was based, the court should 

have reconsidered its prior decision and rendered a new decision supported by 

detailed findings of fact and conclusions of law. 

 We therefore reverse the trial court's denial of plaintiff's motion for 

reconsideration and remand this matter for further proceedings. We suggest that 

the court, as an important first step, conduct a case management conference with 

the parties to discuss the issues that need to be resolved, the manner in which 

this resolution should occur, and a time schedule for the completion of these 

tasks. 
15 A-1449-22

In remanding, we make no determination respecting the sufficiency of 

plaintiff's injury or whether it in fact satisfied the verbal threshold. Nothing 

within this opinion forecasts any views on the merits of plaintiff's claims against 

defendants nor on the question of whether defendants may be entitled to prevail 

on these issues once they are fully considered by the court. 

Reversed and remanded. We do not retain jurisdiction.