SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5047-18T2

SURENDER MALHAN,

Plaintiff-Appellant,

v.

ALINA MYRONOVA, JERSEY

CITY MEDICAL CENTER, and 

KRISTEN LUZZI-ODORISIO,

Defendants-Respondents.

_____________________________

Submitted January 11, 2021 - Decided

Before Judges Mayer and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-4232-18.

Paul A. Clark, attorney for appellant. 

Pashman, Stein, Walder, Hayden, PC, attorneys for 

respondent Alina Myronova (Tracy Julian, of counsel

and on the brief; Timothy Patrick Malone, on the brief).

Bressler, Amery & Ross, PC, attorneys for respondents 

Jersey City Medical Center and Kristen Luzzi-Odorisio 

NOT FOR PUBLICATION WITHOUT THE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.

January 28, 2021
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(Mary Jane Dobbs and Christopher J. Osnato, on the 

brief). 

PER CURIAM

Plaintiff Surender Malhan appeals from a January 11, 2019 order granting 

defendants Jersey City Medical Center (JCMC) and Kristen Luzzi-Odorisio's

(collectively, medical defendants) motion to dismiss plaintiff's complaint and a 

June 7, 2019 order granting defendant Alina Myronova's motion to dismiss

plaintiff's complaint. We affirm. 

Plaintiff and defendant are married but separated. Since 2011, they have 

been involved in a contentious divorce proceeding in Essex County (divorce 

action).

1

 Among the issues to be resolved in the divorce action are custody and 

parenting time regarding the parties' two children.

Since the inception of the divorce action, the parties have filed more than 

thirty-two motions. On August 1, 2017, the judge in the divorce action issued 

an omnibus order addressing various issues. Most pertinent to this appeal, the 

August 1, 2017 order restrained both parties "from interfering with parenting 

time" and directed the parties to share equally in the cost of therapy for the 

1

 In the divorce action, Alina Myronova is the plaintiff and Surender Malhan is 

defendant. On appeal, Malhan is plaintiff and Myronova is defendant. 

Throughout this opinion, Malhan is referred to as plaintiff and Myronova is 

referred to as defendant. 
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children. The order further indicated the selected therapist for the children 

should be associated with JCMC. Luzzi-Odorosio, a therapist with JCMC, was 

selected to provide therapy services to the children. 

On October 19, 2018, the judge in the divorce action conducted an 

extended telephone conference regarding plaintiff's parenting time with input 

provided by various court-appointed professionals, including Luzzi-Odorisio. 

Based on the insights and recommendations of the court-appointed 

professionals, the judge issued an October 29, 2018 order allowing plaintiff 

three hours of supervised parenting time once a week. 

Subsequent to the October 19 conference, and prior to the issuance of the 

October 29 order, plaintiff filed a civil lawsuit in Hudson County against 

defendant and the medical defendants, alleging interference with custody of the 

children (civil action). According to the complaint, in September 2018, LuzziOdorisio wrongfully interfered with custody of the children by telling defendant 

not to "force the children to see [plaintiff]." 

According to the judge's statement of reasons attached to the October 29 

order, based on plaintiff's civil action, at least one court-appointed professional 

declined to continue providing services to the parties and their children. The 
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judge was uncertain whether Luzzi-Odorisio would continue as the children's 

therapist in light of the civil action.

2

In November 2018, the medical defendants moved to dismiss the civil 

action for failure to state a claim or, alternatively, summary judgment. The 

medical defendants argued there was no civil cause of action in New Jersey for 

interference with custody or intentional infliction of emotional distress based on 

parental alienation. In addition, the medical defendants asserted plaintiff's 

claims were barred by the litigation immunity doctrine. Plaintiff opposed the 

motion, contending he should be allowed to amend his complaint. Because the 

medical defendants relied on documents beyond the allegations in plaintiff's 

complaint, the judge applied the summary judgment standard in reviewing the 

motion. 

In a January 11, 2019 order, the judge dismissed plaintiff's claims against 

the medical defendants with prejudice. The judge found the litigation immunity 

doctrine applicable because the medical defendants were "qualif[ied] as 

participants or other participants authorized by law" to assist the court in 

determining the best interests of the children in the divorce action. In addition, 

2

 Based on the civil action, Luzzi-Odorisio withdrew from serving as the 

children's therapist.
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citing P.T. v. Richard Hall Cmty. Health Care Ctr., 364 N.J. Super. 561 (Law 

Div. 2002), aff'd, 364 N.J. Super. 460 (App. Div. 2003), the judge held there 

was no "professional cause of action against a therapist . . . where the therapist 

was rendering treatment to somebody else." Because the judge found plaintiff's 

claims against the medical defendants were barred by the litigation immunity 

doctrine, she determined his claims for interference with custody and parental 

alienation were moot.

Defendant subsequently moved for dismissal of plaintiff's civil action for 

failure to state a claim or, alternatively, summary judgment. Defendant argued 

there was no cognizable cause of action in New Jersey for interference with 

custody. In addition, defendant asserted plaintiff's claims could, and should, be 

brought in the divorce action.3 Plaintiff opposed the motion, arguing he should 

be allowed to amend his complaint. 

In a June 7, 2019 order, a different judge dismissed plaintiff's claims

against defendant with prejudice. In a written decision attached to the order, the 

judge found "the allegations against [d]efendant fail[ed] to support a claim for 

[i]ntentional [i]nterference with [c]ustody, as the conduct by [d]efendant [did]

3

 Defendant's counsel noted the judge in the divorce action denied plaintiff's 

motion to amend his counterclaim because the action was "in the seventh year 

of litigation." 
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not rise to the level of the egregious examples cited in the cases relied upon by 

[p]laintiff, Matsumoto v. Matsumoto, 171 N.J. 110 (2002), and DiRuggiero v. 

Rodgers, 743 F.2d 1009 (3rd Cir. 1984)." He concluded there was "no evidence 

of [a] deliberate intention to preclude the [p]laintiff from parenting time." In 

addition, the judge explained, "[A]t no time was [p]laintiff entitled to a superior 

right to legal custody over the [d]efendant, as was present in DiRuggiero and 

Matsumoto."

On appeal, plaintiff contends the judges' erred in dismissing his civil 

action with prejudice. In addition, he argues the judges should have given him 

an opportunity to amend his complaint prior to the dismissal of his claims. We 

disagree. 

A court may dismiss a complaint for "failure to state a claim upon which 

relief can be granted" under Rule 4:6-2(e). Because defendant filed a motion to 

dismiss in lieu of an answer, the judge reviewed the motion in accordance with 

Rule 4:6-2(e). 

However, when "matters outside the pleading are presented to and not 

excluded by the court, the motion shall be treated as one for summary judgment

and disposed of as provided by R. 4:46 . . . ." R. 4:6-2. The medical defendants 
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relied on material outside the pleading, and the judge reviewed that motion 

under the summary judgment standard. 

Our review of the orders on appeal is de novo, applying the same standard 

as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). 

We determine whether defendants demonstrated the absence of genuine issues 

of material facts, and whether the motion judges correctly determined 

defendants were entitled to judgment as a matter of law. N.J. Dep't of Env't. 

Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div. 2015).

We first consider plaintiff's argument the judge erred in applying the 

litigation immunity doctrine4as barring the civil action against the medical 

defendants. The litigation privilege applies to "any communication (1) made in 

judicial or quasi-judicial proceedings; (2) by litigants or other participants 

authorized by law; (3) to achieve the objects of the litigation; and (4) that have 

some connection or logical relation to the action." Hawkins v. Harris, 141 N.J. 

207, 216 (1995) (quoting Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990)). 

The litigation privilege immunizes any participant in a judicial proceeding from 

civil liability for any statements made in the course of the proceedings. Loigman 

v. Twp. Comm. of Middletown, 185 N.J. 566, 579-80 (2006). The purpose of 

4

 This doctrine is also known as the litigation privilege.
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the privilege is "to ensure that participants in the judicial process act without 

fear of the threat of ruinous civil litigation when performing their respective 

functions." Id. at 581.

Having reviewed the record, we are satisfied the judge correctly 

concluded the medical defendants were protected by the litigation privilege as a 

matter of law. In accordance with the orders entered by the judge in the divorce 

action, Luzzi-Odorisio, through her employer JCMC, was appointed to provide 

therapy to the children during the divorce action and report her 

recommendations to the court regarding custody and parenting time. In a 

September 17, 2018 email to defendant, Luzzi-Odorisio recommended the 

children should not be "forced" to see plaintiff. In her October 2018 testimony

to the court in the divorce action, Luzzi-Odorisio explained the children 

expressed "disinterest" and "fear" about spending time with plaintiff, which 

formed the basis for her opinion regarding plaintiff's parenting time with the 

children. 

In P.T., a case substantially similar to the present case, the court held the 

litigation privilege barred claims against a psychologist and her employer 

regarding treatment of a child in the center of a custody dispute even where the 

statements were made by the therapist to the mother rather than in a court 
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proceeding. 364 N.J. Super. at 584. In that case, the judge held defendants' 

communications and statements were "cloaked in the litigation privilege" 

because the statements were "made in the context of the litigation." Id. at 583. 

The judge in P.T. explained:

[I]t is clear that recommendations made by [the 

therapist] either to the court system, or in the context of 

the order directing that she make her recommendations 

to the parties, fall within the litigation privilege. The 

rationale underlying the litigation privilege itself would 

be undercut were we to conclude that a therapist . . . in 

a setting such as this is not entitled to rely on that 

privilege. The privilege rests on the need to ensure 

complete candor and forthright, open[,] and honest 

communication of [the therapist's] views based upon 

her evaluation and therapy with this child, all of which 

would be severely compromised were we to determine 

that the privilege does not apply here.

[Id. at 583-84.] 

Here, the September 2018 email between defendant and Luzzi-Odorisio 

concerned the children's best interests regarding parenting time in the divorce 

action. The statements were made as part of Luzzi-Odorisio's role to make 

recommendations to the court and the parties related to parenting time issues in 

the divorce action. On October 19, 2018, Luzzi-Odorisio testified in the divorce 

action, stating her recommendations to the judge related to plaintiff's 
10 A-5047-18T2

relationship with the children. Three days later, plaintiff filed the civil action 

against the medical defendants. 

Even if Luzzi-Odorisio had not been a court-appointed professional, her 

statements were entitled to protection under the litigation privilege. LuzziOdorisio's statements were made in the context of the divorce action and directly 

related to an objective associated with that litigation ̶the best interests of the 

children. Thus, the motion judge properly granted summary judgment to the 

medical defendants based on the litigation privilege. 

We next consider plaintiff's contention the judge erred in dismissing his 

interference with custody claim against defendant. We reject plaintiff's reliance 

on a criminal statute, N.J.S.A. 2C:13-4, in support of this claim. In accordance 

with the criminal statute, criminal liability attaches to persons who physically 

take, detain, or entice a child for the purpose of depriving the child's parent or 

lawful guardian of custody. Defendant did not physically take the children. The 

children simply declined to spend time with plaintiff for the reasons they 

expressed to their therapist. 

In addition, the cases cited by plaintiff in support of his claims against 

defendant, Matsumoto and DiRuggerio, are factually distinguishable from the 

facts in the civil action. Defendant did not physically take the children to 
11 A-5047-18T2

another state or country as in DiRuggerio and Matsumoto. Nor was there an 

order granting plaintiff sole custody of the children to support such a tort claim.

Pending resolution in the divorce action, both parents share legal custody 

of the children. We agree with the motion judge, to the extent plaintiff believes

defendant is interfering with his parenting time as a result of her failure to

comport with parenting time orders in the divorce action, he may file a motion 

to enforce those orders pursuant to Rule 1:10-3. 

Finally, we address plaintiff's contention the judges erred in not according 

him an opportunity to amend his complaint. However, plaintiff never filed a 

motion to amend his complaint in the civil action. While plaintiff may have 

argued he wanted an opportunity to amend his pleading in opposing dismissal 

of his civil action, there is nothing in the record evidencing an effort by plaintiff 

to file such a motion. 

Further, even assuming plaintiff had filed a motion to amend the 

complaint in the civil action, late motions to amend should be denied where 

"add[ing] new claims late in the litigation . . . would prejudicially affect the 

other party's rights." Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. 

Super. 448, 484 (App. Div. 2012) (citing Fisher v. Yates, 270 N.J. Super. 458, 

467 (App. Div. 1994)). Additionally, motions to amend may be denied in the 
12 A-5047-18T2

discretion of the trial court where "the amendment would be 'futile,' because 'the 

amended claim will nonetheless fail and, hence, allowing the amendment would 

be a useless endeavor.'" Prime Acct. Dep't v. Twp. of Carney's Point, 212 N.J. 

493, 511 (2013) (quoting Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 

(2006)). Further, "courts are free to refuse leave to amend when the newly 

asserted claim is not sustainable as a matter of law. . . . [T]here is no point to 

permitting the filing of an amended pleading when a subsequent motion to 

dismiss must be granted." Interchange State Bank v. Rinaldi, 303 N.J. Super. 

239, 256-57 (App. Div.1997) (quoting Mustilli v. Mustilli, 287 N.J. Super 605, 

607 (Ch. Div. 1995)).

Here, plaintiff never filed a motion to amend his complaint in the civil 

action. Even if plaintiff had done so, the filing of an amended pleading would 

not have changed the resulting dismissal of his claims against the medical 

defendants based upon applicability of the litigation privilege or against 

defendant based on the judge's finding she did not interfere with a custody order. 

In addition, if plaintiff asserted a malpractice claim against the medical 

defendants, there was no therapeutic relationship between plaintiff and LuzziOdorisio upon which to assert a claim for professional negligence. 
13 A-5047-18T2

To the extent we have not addressed certain arguments raised by plaintiff, 

we conclude the arguments are without sufficient merit to warrant discussion in 

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

Affirmed.