Unpublished Opinions for the Week of December 19, 2016

07-2-1999 Markiewicz v. Ramirez, N.J. Super. App. Div. (per curiam) (5 pp.) Appellant appealed from an order denying reconsideration of the Law Division’s earlier order denying her motion to reinstate her complaint against appellees for damages arising from injuries she allegedly sustained when she slipped and fell. Prior to ether defendant being served with process, the Law Division entered an order dismissing plaintiff’s complaint for lack of prosecution pursuant to Rule 1:13-7(a). Appellant later served defendants and filed a motion to reinstate eleven months after the dismissal. Apply the exceptional circumstances standard to appellant’s application because there was more than one defendant, the motion judge denied appellant’s application and her later motion to reconsider. The court reversed concluding that the motion judge misapplied her discretion by denying reconsideration because she applied the wrong standard to the motion to reinstate. The exceptional circumstances standard employed by the motion judge did not apply to actions in which none of the defendants were served at the time of the dismissal and was not applicable to a multi-defendant case. The higher standard in multi-defendant cases was intended to avoid delay where a case has been proceeding against one or more defendants, and the plaintiff then seeks to reinstate the complaint against a previously-dismissed additional defendant. Accordingly the order denying reconsideration was reversed.

46-3-2026 Rodriguez v. New Jersey Dep’t of Corr., Law Div. (Geiger, J.S.C.) (5 pp.) This survival and wrongful death action arose out of the death of Hector Rodriguez, a state prison inmate, who suffered from pressure ulcers ulcers and died on Aug. 26, 2015. Defendants are the New Jersey Department of Corrections, University of Medicine and Dentistry of New Jersey and University Behavioral Healthcare-University Correctional Healthcare (collectively “UMDNJ”). Plaintiff alleged that defendants breached a nondelegable duty to provide adequate and timely medical care to decedent during his incarceration, which led to the pressure ulcers or decubitus ulcers progressing and caused his death. Decedent had filed a prior personal injury action against defendants which was reported settled and dismissed by a consent order. Here, plaintiff alleged professional negligence. Thus, he was required to provide an affidavit of merit (“AOM”). Plaintiff’s decedent served an AOM in the earlier action. Plaintiff contended that he is not required to serve a new AOM. The court found that the earlier AOM is limited to any allegations of deviation from applicable standards of care by nurses. Plaintiff argued that he is unable to provide additional AOMs as to any allegedly negligent physicians because their identity or board certified fields of specialty or subspecialty are not known. The course of medical treatment at issue purportedly stretched over seven years. The medical care was provided by physicians or other health care professionals provided by UMDJ pursuant to its contract with the NJDOC. Plaintiff cannot be expected to know the identity of those professionals. Defendants have access to the medical records which will disclose the identities and specialties, if any, of the physicians and other health care professionals who treated plaintiff. Defendants shall within 60 days identify those individuals and their specialties or subspecialties. Plaintiff shall then have 60 days to submit appropriate AOMs. [Dec.12, 2016]