DARRELL CARLESS VS. EAST ORANGE GENERAL HOSPITAL (L-3375-16, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3886-17T4
DARRELL CARLESS,
Plaintiff-Appellant,
v.
EAST ORANGE GENERAL
HOSPITAL,
Defendant-Respondent.
_________________________
Submitted December 3, 2019 – Decided December 13, 2019
Before Judges Fisher and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-3375-16.
Darrell Carless, appellant pro se.
Rosenberg Jacobs Heller & Fleming, PC, attorneys for
respondent (Raymond J. Fleming, of counsel;
Christopher Klabonski, on the brief).
PER CURIAM
Plaintiff Darrell Carless filed a complaint, asserting a slander cause of
action, against defendant East Orange General Hospital. The alleged slander
was based on statements allegedly made by hospital representatives to police
concerning the fact that plaintiff, who was involuntarily committed at the
hospital, was violent. That complaint was filed on May 9, 2016. Before the
month ended, plaintiff filed eight more complaints in the Law Division against
the hospital.
To bring order to the confusion caused by these multiple filings, the trial
judge entered an order in June 2016 that consolidated all nine complaints. The
hospital filed responsive pleadings and moved to dismiss seven of the nine
complaints due to plaintiff's failure to comply with the affidavit of merit statute,
N.J.S.A. 2A:53A-27. That motion was denied, and plaintiff was permitted an
additional sixty days to comply. Plaintiff then moved to be relieved of having
to comply with the affidavit of merit statute because of his indigency status. The
judge denied that motion and repeated that the affidavit of merit requirement did
not apply to three of the complaints, which appear to allege intentional torts.1
1
Two of these allege an assault and criminal restraint. A copy of the third
complaint, which fell within the judge's exception to the holding that plaintiff
was required to comply with the affidavit of merit statute, was not included in
plaintiff's appendix. For present purposes, we assume the accuracy of plaintiff's
(continued)
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After the sixty days permitted by the court had elapsed without plaintiff's
compliance with the affidavit of merit statute, the hospital moved for dismissal ,
and in granting that motion, the judge dismissed six of plaintiff's nine complaints
with prejudice.
Discovery then continued on the remaining three complaints, which were
also scheduled for non-binding mandatory arbitration to occur on February 13,
2018. Plaintiff moved to advance the date of the arbitration to January 31, 2018,
because he was then residing in Las Vegas and represented that he could be in
New Jersey on the latter date. The judge granted plaintiff's motion and changed
the arbitration date to January 31, 2018. Despite being given the arbitration date
he sought, plaintiff did not appear and, due to that failure, plaintiff's three
remaining complaints were dismissed without prejudice.
Plaintiff moved for the reinstatement of the three remaining complaints,
arguing he was unaware of the order that scheduled the arbitration for January
31, 2018, even though he had requested it. This motion was denied. In the
written decision made part of the March 2, 2018 trial court order, the judge
explained the motion was denied because plaintiff failed to appear on the
assertion in his appeal brief that this third complaint alleged he was assaulted
by a hospital security guard.
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arbitration date that he requested with knowledge of the arbitration date. The
judge determined plaintiff was aware of the order fixing the arbitration date
because the order was "served . . . personally on [plaintiff] on 1/29/18 as
[p]laintiff was in the Hall of Records on another matter." The judge also s tated
in the order that her chambers "left multiple voice messages on the phone
number [p]laintiff provided with his motion papers advising him" of the
rescheduled January 31, 2018 arbitration date.
Even though the last three complaints were only dismissed without
prejudice, the judge's later denial of the motion to reinstate meant that plaintiff
could no longer revive those complaints. All the orders we have mentioned
collectively disposed of all issues as to all parties. We are satisfied plaintiff was
entitled to file an appeal as of right.
In appealing, plaintiff argues:
I. THE TRIAL COURT ERRED IN ORDERING
[DISMISSAL] WITH PREJUDICE [OF THE SIX
COMPLAINTS] FOR FAILURE TO COMPLY WITH
THE AFFIDAVIT OF MERIT STATUTE . . .
BECAUSE AN AFFIDAVIT OF MERIT IS NOT
REQUIRED IN COMMON KNOWLEDGE CASES.
II. THE TRIAL COURT ERRED BY BEING UNDER
THE IMPRESSION THAT PLAINTIFF WAS
PERSONALLY SERVED WITH AN ORDER
RESCHEDULING AN ARBITRATION DATE . . .
AND THAT MULTIPLE VOICE MESSAGES WERE
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LEFT [O]N PLAINTIFF'S PHONE ADVISING HIM
OF THE CHANGE (Not Raised Below).
We find insufficient merit in plaintiff's arguments to warrant further discussion
in a written opinion. R. 2:11-3(e)(1)(E). We add only a few comments.
As to the first point, there is no question that plaintiff's claims of
negligence or malpractice – as the six complaints were properly understood as
alleging – arose from plaintiff's allegations about the hospital's screening of him
for an involuntary commitment and whether the hospital adhered to proper
screening standards. These were matters beyond the common knowledge of
laypersons, thereby requiring plaintiff's compliance with the affidavit of merit
statute. See, e.g., Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 389-96
(2001); Cowley v. Virtua Health Sys., 456 N.J. Super. 278, 288-89 (App. Div.
2018). The judge correctly held that plaintiff was obligated to comply with the
affidavit of merit statute on these six complaints.
As for the second point, plaintiff argues that the judge inaccurately
determined that he had been personally served with the order rescheduling the
arbitration and in finding that voice mails were left for him advising of the new
arbitration date. Plaintiff, however, acknowledges he never made that argument
in the trial court by noting that his second point was "not raised below." Based
on the record before her, we find the judge acted well within her discretion in
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denying plaintiff's motion to reinstate. If plaintiff had a quarrel with the facts
upon which the judge refused to reinstate the three complaints, he should have
moved for relief from the judge's order.
Affirmed.
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