                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0589-14T1
A.T., an infant by her mother
and natural guardian, T.T.,
and T.T., individually,                APPROVED FOR PUBLICATION

     Plaintiffs-Appellants,                 April 27, 2016

                                          APPELLATE DIVISION
v.

M. COHEN, M.D., KHALID SAVAGED,
M.D., CINDY GALOOTS,1 CNM, JULIO
CABAN, M.D., BAOHUOING TRAN, M.D.,
and NEWARK BETH ISRAEL MEDICAL
CENTER,

     Defendants-Respondents.
_______________________________________

         Argued January 20, 2016 – Decided April 27, 2016

         Before Judges Fisher, Espinosa, and Currier.

         On appeal from the Superior Court of New
         Jersey, Law Division, Essex County, Docket
         No. L-3796-13.

         Alan Roth argued the cause for appellants
         (Bendit   Weinstock,   P.A.  and  Gary   P.
         Falkowitz (Parker Waichman LLP), attorneys;
         Mr. Roth, on the briefs).

         Lauren M. Strollo argued the cause for
         respondents (Vasios, Kelly & Strollo, P.A.,
         attorneys; Ms. Strollo, of counsel and on
         the brief; Linda Fulop-Slaughter, on the
         brief).


1
  An amended complaint corrected the name of the defendant to
Cindy Galeota.
       The opinion of the court was delivered by

CURRIER, J.S.C. (temporarily assigned).

       The issue in this medical malpractice case is whether the

minor plaintiff can take a voluntary dismissal without prejudice

to avoid a dismissal with prejudice of her complaint for the

failure    to   provide   an   affidavit   of   merit   (AOM)   within   the

required timeframe.       We conclude that Rule 4:37-1(b) cannot be

used to circumvent the time strictures set forth in the AOM

statute even if the statute of limitations has not yet expired.

As a result, we affirm the trial judge's denial of the motion to

take a voluntary dismissal and the granting of summary judgment

to defendants.

       T.T. brought this action individually and on behalf of her

daughter A.T., asserting medical malpractice claims against all

defendants.     The complaint alleges that A.T. suffers from Erb's

palsy as the result of a brachial plexus injury caused at her

birth in 2011.        An answer was filed on December 5, 2013 on

behalf of all defendants with the exception of Savaged.

       On April 7, 2014, defendants moved for summary judgment on

the grounds that plaintiff2 had failed to file an AOM as required




2
    We refer to T.T. and A.T. collectively as plaintiff.




                                     2                             A-0589-14T1
by N.J.S.A. 2A:53A-27.3       In opposition to the motion, plaintiff

attached an AOM dated May 22, 2014.4            During oral argument on the

motion,    plaintiff's     counsel    requested       the   court   permit      the

filing of a Rule 4:37-1(b)5 motion before consideration of the

pending    summary   judgment      motion.      Counsel       advised    that   the

failure to file a timely AOM was an "oversight," and in response

to a question from the judge, conceded that the firm did not

have a "seasoned New Jersey medical malpractice attorney."6                     The

judge granted the request to adjourn the summary judgment motion

for a month.

        Present counsel entered an appearance as co-counsel for

plaintiff and filed a motion for a voluntary dismissal under

Rule    4:37-1(b).    At    oral     argument    on    that    motion,    counsel

3
  Pursuant to N.J.S.A. 2A:53A-27, a plaintiff has sixty days from
the date of the defendant's answer to file an AOM.      The court
may grant the plaintiff an additional sixty days "upon a finding
of good cause."    Ibid.  The deadline for plaintiff to file an
AOM was April 4, 2014.
4
  The AOM was authored by a physician specializing in the field
of obstetrics/gynecology and opined that the care exercised in
the treatment of plaintiff "fell outside acceptable professional
standards as they apply to representatives and medical personnel
of the Defendant, Newark Beth Israel Medical Center."
5
  Rule 4:37-1(b) states in pertinent part: "An action shall be
dismissed at the plaintiff's instance only by leave of court and
upon such terms and conditions as the court deems appropriate.
. . . Unless otherwise specified in the order, a dismissal under
this paragraph is without prejudice."
6
    The principal office of counsel was located outside New Jersey.



                                       3                                  A-0589-14T1
requested     leave     to   dismiss       the    complaint     without      prejudice,

advising the judge that if his review of the file deemed it

appropriate, he would re-file the complaint with an AOM.                                  As

A.T. was a minor, there remained many years prior to the running

of the statute of limitations.                  Counsel also asked the judge to

again adjourn the summary judgment motion, raising for the first

time the constitutionality of the AOM statute.

      The    judge    denied   the     additional        adjournment        and   granted

summary judgment to defendants, ruling that plaintiff's failure

to    file   an   AOM    within      the     statutory        period     required       the

dismissal of her complaint with prejudice.                    She stated:

             The plaintiff seeks a dismissal without
             prejudice, on terms that if it gets re-filed
             then the Affidavit of Merit would be with
             it.   That's . . . engaging in a fiction to
             make it look like I'd be doing something
             that . . . really wasn't allowed, which
             would be extending the time beyond the 120
             days. . . . I would be extending the time
             for the Affidavit of Merit beyond the time
             set forth in the statute.

The judge also noted there was no vehicle in which to consider

the   constitutionality        of    the    statute      as   no   motion     had     been

presented to her on that issue.                    She, therefore, declined to

address that argument.

      Plaintiff       moved     for         reconsideration.           In     counsel's

supporting     certification,        he    sought    a    review    of      the   judge's

previous decision or "in the alternative to have the [c]ourt



                                            4                                     A-0589-14T1
declare the Affidavit of Merit Statute unconstitutional."                  In

denying the motion, the judge reiterated her reasoning expressed

during her original ruling and found that no new information had

been   presented    to   her.   In   addressing   the   constitutionality

argument, she stated:

           If anybody wanted to raise that, you should
           have made a motion before I dismissed the
           case, notice to the defendant, opportunity
           to reply, notice to the Attorney General
           . . . . None of that happened. And it's not
           appropriate to raise it, even as minimally
           as it was raised in the papers, on a Motion
           for Reconsideration.

This appeal followed.

       On appeal, plaintiff argues that (1) the judge erred in

dismissing the case with prejudice; and (2) the AOM statute is

unconstitutional as it invades the judiciary's power to regulate

practice   and     procedure.   We    do   not   address   the   merits   of

plaintiff's constitutionality argument as we find it was not

properly raised to the trial judge.7        This court will "decline to

consider questions or issues not properly presented to the trial

court when an opportunity for such a presentation is available

unless the questions so raised on appeal go to the jurisdiction


7
  The argument was raised for the first time at oral argument on
the summary judgment motion and then in a motion for
reconsideration.   The Attorney General was only noticed on the
motion for reconsideration and did not enter an appearance in
the trial court or in this appeal.



                                     5                             A-0589-14T1
of the trial court or concern matters of great public interest."

Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012)

(quoting    Nieder    v.   Royal    Indem.     Ins.   Co.,       62   N.J.    229,     234

(1973)).

    Plaintiff does not contest that her failure to file an AOM

within    the   statutory     timeframe      required       a    dismissal      of     the

complaint; rather, she argues that the judge should have granted

a dismissal without prejudice under Rule 4:37-1(b) due to A.T.'s

status as a minor.          Plaintiff contends that, as there remain

many years until the expiration of the statute of limitations,

and there has been no prejudice to the defendants, the dismissal

should be without prejudice "in the interest of justice and

fairness."

    A      failure    to   comply     with     the    AOM       statute      "generally

requires    dismissal      with    prejudice    because         the   absence     of    an

affidavit strikes at the heart of the cause of action."                         Paragon

Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422

(2010);     see      N.J.S.A.      2A:53A-29.           Absent         extraordinary

circumstances, a failure to comply with the AOM statute requires

a dismissal with prejudice.            Cornblatt v. Barow, 153 N.J. 218,

247 (1998).       "A dismissal for failure to submit an affidavit of

merit is a violation of a statute rather than a court-imposed

rule or order.       The violation giving rise to the dismissal goes




                                        6                                       A-0589-14T1
to    the        heart    of   the    cause        of     action    as    defined   by    the

Legislature."            Id. at 244.

       Plaintiff does not assert the existence of extraordinary

circumstances; she merely states that her failure to provide an

AOM within the required statutory timeframe was an "oversight."

The    Supreme        Court    has    determined          that     attorney    inadvertence

falls short of establishing extraordinary circumstances required

to    avoid       a   dismissal      with   prejudice.             Palanque    v.   Lambert-

Woolley, 168 N.J. 398, 405 (2001).                        See also Burns v. Belafsky,

326 N.J. Super. 462, 470 (App. Div. 1999) ("Carelessness, lack

of circumspection, or lack of diligence on the part of counsel

are not extraordinary circumstances which will excuse missing a

filing deadline.") (quoting Hyman Zamft and Manard v. Cornell,

309 N.J. Super. 586, 593 (App. Div. 1998)).

       Nonetheless, plaintiff asks us to circumvent the finality

of the AOM statute by utilizing Rule 4:37-1(b) to dismiss her

claim       without       prejudice     with        the     ability       to   re-file    her

complaint with an AOM at a later time.

       The decision whether to dismiss a matter without prejudice

under Rule 4:37-1(b) lies within the judge's sound discretion.

Mack Auto Imports, Inc. v. Jaguar Cars, Inc., 244 N.J. Super.

254, 258 (App. Div. 1990).                  "In exercising that discretion, the

court       is     chiefly     required       to        protect    'the    rights   of    the




                                               7                                    A-0589-14T1
defendant.'"       Shulas v. Estabrook, 385 N.J. Super. 91, 97 (App.

Div. 2006) (quoting Burke v. Cent. R. Co., 42 N.J. Super. 387,

397 (App. Div. 1956)).           In Shulas, supra, 385 N.J. Super. at

101-02, we instructed that "an examination into the propriety of

a      voluntary     dismissal         without        prejudice      requires     an

investigation into the reasons why the order was sought as well

as the actions or inactions of the parties that preceded its

entry."

       Facing   defendants'      motion         for   summary   judgment   and   the

expiration of the statutory timeframe within which to file an

AOM,    plaintiff    moved      for     a   voluntary      dismissal.      Counsel

candidly explained that this would provide him the opportunity

to review and investigate the matter and, if appropriate, re-

file the complaint with an AOM.                 Since A.T. was a minor, counsel

reasoned    that    the   new    complaint        would   be    filed   within   the

statute    of   limitations,          therefore       causing   no   prejudice    to

defendants.

        We find that permitting a voluntary dismissal in these

circumstances would render the AOM statute meaningless in the

case of a minor plaintiff.              The purpose underlying the statute

has been oft explained.               "It was designed as a tort reform

measure and requires a plaintiff in a malpractice case to make a

threshold showing that the claims asserted are meritorious.                        It




                                            8                              A-0589-14T1
is designed to weed out frivolous lawsuits at an early stage and

to allow meritorious cases to go forward."          Galik v. Clara Maass

Med. Ctr., 167 N.J. 341, 350 (2001) (citing Cornblatt, supra,

153 N.J. at 242).

    If plaintiff were permitted to take a voluntary dismissal,

the timeframes in the AOM statute and the purpose behind it

would   be   defeated.    Defendants   would   be   faced   with   waiting

indefinitely for a resolution of the litigation against them,

incurring costs to defend each newly filed action.8          The statute

would be rendered moot.

        We have previously addressed this issue and rejected the

argument that justice requires a dismissal without prejudice due

to the plaintiff's status as a minor.      As we stated in Kubiak v.

Robert Wood Johnson University Hospital, 332 N.J. Super. 230,

238 (App. Div. 2000):

             [W]here, as here, a guardian ad litem
             pursues a child's claim on behalf of the
             minor, the guardian steps into the shoes of
             the minor and is obligated to comply with
             court rules and the applicable statutes. In
             short, a minor is protected from a parent's
             or guardian's inaction, but not from their
             improvident   actions  in   the  course  of
             litigation.

8
  We also note the potential impact a dismissal without prejudice
might have on a health care professional under N.J.S.A. 17:30D-
22, wherein a medical malpractice premium may not be increased
if an insured is dismissed from a medical malpractice action
within 180 days of the filing of the last responsive pleading.



                                  9                                A-0589-14T1
       Our    dissenting       colleague       posits         that      the     dismissal         of

A.T.'s      complaint    under     these      circumstances          is       "illogical         and

inconsistent with other recognized instances of 'extraordinary

circumstances'" and "fails to respect the solicitude the law

affords      minors."         Plaintiff,       however,           does    not     assert         the

existence       of   extraordinary       circumstances             nor     does       she    argue

substantial compliance; just that it was "an oversight" not to

file the AOM.          And we agree with our colleague that the tolling

of    the    statute    of    limitations          in    tort     cases    for    minors         has

afforded them protection.                However, those exceptions were put

into place as a result of legislative action.                              The Legislature

did    not    choose     to    carve    out     an       exception        for    minors          when

crafting the AOM timeframes.                    We find this significant.                          In

Kubiak, we noted that similar omissions by the Legislature have

been dispositive.             Kubiak, supra, 332 N.J. Super. at 238; see

Scharwenka v. Cryogenics Mgmt., Inc., 163 N.J. Super. 16, 21

(App.    Div.    1978)    ("That       there     is      no   tolling      proviso          in   the

[worker's]       compensation      act     is       perfectly        clear.       .    .     .    No

exception       or   qualification         for          infancy    or     incompetency            is

provided for, in contrast with the express provision therefor in

the general statutes of limitations."); see also Giantonio v.

Reliance Ins. Cos., 175 N.J. Super. 309, 315 (Law Div. 1980)

("[H]ad the Legislature intended that the time limitations be



                                              10                                        A-0589-14T1
tolled for an infant until he reaches his majority, it could

have quite effortlessly inserted just such a specific provision.

This    court   cannot   by   judicial   construction   do   what    the

Legislature expressly or inferentially declined to do.").

       We affirm the denial of the voluntary dismissal motion, the

grant of summary judgment to defendants, and the dismissal with

prejudice of the complaint.

       Affirmed.




                                   11                          A-0589-14T1
                                  RECORD IMPOUNDED

_____________________________________________

FISHER, P.J.A.D., dissenting.

      As      my    colleagues      have      thoroughly      explained,    plaintiff

commenced this medical malpractice action on behalf of a child

against defendants regarding their participation in the child's

2011 birth. When plaintiff's counsel, a New York practitioner

apparently unfamiliar with N.J.S.A. 2A:53A-27, failed to serve

an affidavit of merit within 120 days, defendants moved for

summary judgment.             New counsel appeared for plaintiff and, in

seeking to fend off summary judgment, moved for a voluntary

dismissal. Despite the near nonexistent prejudice to defendants

if   such     relief       were    granted,    the    motion    judge   concluded     —

because of Kubiak v. Robert Wood Johnson Hosp., 332 N.J. Super.

230 (App. Div. 2000) — that she lacked the discretion to grant a

voluntary dismissal with or without terms; consequently, summary

judgment was entered in favor of defendants.

      In my view, Kubiak's brightline rule — that a dismissal

based on a failure to comply with the affidavit of merit statute

must always be with prejudice even if the claim belongs to a

minor    —    is    illogical      and    inconsistent       with   other   recognized

instances of "extraordinary circumstances" that have alleviated

others       from    the     consequences      of    their    similar   failure;    in

particular,         Kubiak    fails      to   respect   the    solicitude     the   law
affords minors.       Accordingly, unlike my colleagues, I would not

adhere to Kubiak and dissent for the following reasons.

      To be fair to the motion judge, I would observe that she

was   required   to   follow      our   earlier    decision    in   Kubiak,      see

Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 40 (App.

Div. 2003), and cannot be faulted for failing to exercise the

discretion    otherwise     afforded     by   Rule     4:37-1(b).    The     motion

judge dutifully followed Kubiak where, in similar circumstances,

we permitted no alternative to a dismissal with prejudice when a

child's representatives failed to timely serve an affidavit of

merit.   In   reaching    that     conclusion,     the     Kubiak   panel     first

recognized    that    a   minor    is   bound     to   a   guardian's   acts      or

omissions. 332 N.J. Super. at 238. That is surely true, but it

does not necessarily follow that the minor's claim should be

treated in all respects as if brought by an adult.                  The law has

always been solicitous and protective of under-aged litigants,

Riemer v. St. Clare's Riverside Med. Ctr., 300 N.J. Super. 101,

110 (App. Div. 1997) — a policy which has spawned, among other

things: equitable tolling of a child's wrongful death suit even

though the Wrongful Death Act, without exception, mandates that

such a suit be commenced within two years of the date of death,




                                         2                                 A-0589-14T1
LaFage       v.   Jani,    166      N.J.     412,     430-31     (2001)1;    a    looser

application       of   the        entire   controversy         doctrine     in   actions

brought on behalf of minors, Riemer, supra, 300 N.J. Super. at

110;     a   process      requiring        judicial     approval     of     settlements

reached      on   behalf     of    minors,    R.    4:44;   and    liberal       judicial

scrutiny of minors' pre-tort releases, Hojnowski v. Vans Skate

Park, 187 N.J. 323, 333-34 (2006). So, while I agree with Kubiak

that a minor must in some sense be bound to the consequences of

a guardian's omission, see Zukerman v. Piper Pools, Inc., 232

N.J. Super. 74, 96 (App. Div. 1989), the examples cited above

demonstrate those consequences are not coextensive with those

arising in suits commenced by adults on their own behalf.

       In the present circumstances, a suit brought on behalf of

an adult would rightly be finally terminated.                      But the affidavit

of merit statute, although admittedly silent on its application

to minors — just as the Wrongful Death Act is similarly silent —

does not suggest a guardian's procedural missteps must be fatal

to a minor's claim any more than was the case in LaFage.




1
  In LaFage, a widow commenced on her own behalf and on behalf of
her minor children a suit alleging the wrongful death of her
husband (their father) twenty-seven days beyond the two-year
statute of limitations. 166 N.J. at 418. The Court found the
widow's claim to be time-barred, but the children were entitled
to equitable tolling because of their status as minors. Id. at
431.



                                             3                                   A-0589-14T1
       Indeed, it seems to me that the Kubiak holding rests on the

false premise that "[a] dismissal for failure to comply with the

[affidavit        of     merit     statute]     is    not    any   different     than       a

dismissal        after      plenary    or    summary       adjudication."       332    N.J.

Super.      at    238.      This    assertion     misinterprets       everything           the

Supreme Court has said about the intent of that statute. For

example, the Court has held that the affidavit of merit statute

was designed only to compel a plaintiff to make "a threshold

showing"     that       a   malpractice       claim    is    not   frivolous,         In    re

Petition of Hall, 147 N.J. 379, 391 (1997); a failure to make

that showing only permits an inference — perhaps true, perhaps

not    —   that       the   claim     is    frivolous.        In   other    words,         the

affidavit        of     merit      statute     was     designed     to     "identif[y]"

"meritless lawsuits . . . at an early stage of the litigation,"

Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J.

415, 421 (2010); the statute does not require proof the claim

will succeed nor does compliance guarantee an adjudication on

the merits.        That is, experience and common sense suggest that a

failure to comply does not mean a claim lacks merit or will not

succeed if submitted to a factfinder.                       A litigant may fail to

comply for reasons having nothing to do with a claim's merits,

such   as    negligence,           inadvertence,      or    ignorance      of   the    law.

Thus, I disagree with Kubiak's premise that the failure to serve




                                              4                                  A-0589-14T1
an affidavit of merit is the equivalent of an adjudication of a

case on its merits. Because this faulty premise seems to be the

linchpin to Kubiak's elimination of a minor's opportunity to

commence suit later — i.e., how can one later sue on a claim

already adjudicated on its merits? — I would depart from Kubiak

and   reaffirm     that     trial    judges      possess      the       discretion     to

preserve    for    the    future     a    minor's      malpractice         action      in

circumstances such as those at hand.

      I also reach this conclusion because the consequences of

counsel's oversight here are disproportionate both when compared

to circumstances previously found excusable or exceptional and

when compared to the harm, if any, incurred by defendants.                             As

to the former, the cases cited earlier demonstrate not every

failure to comply with the statute is fatal. Because "there is

no legislative interest in barring meritorious claims brought in

good faith," Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 359

(2001),    the    Supreme    Court       has    held   that       the     doctrine     of

substantial compliance may be invoked as a means of avoiding

dismissal for technical violations, see, e.g., Fink v. Thompson,

167 N.J. 551, 561-65 (2001) (finding substantial compliance when

the   affidavit    did    not   name     defendant     but    a     detailed     expert

report focused on defendant's conduct); Galik, supra, 167 N.J.

at    353-57     (excusing      failure        where   plaintiff          had    served




                                          5                                     A-0589-14T1
defendant's insurer prior to suit with unsworn expert reports

and had taken steps to later comply with the statute), and has

allowed     for     dismissals     without         prejudice     when    the     equities

suggest      a    "temper[ing]         [of]    the       draconian     results    of    an

inflexible application of the statute," Paragon, supra, 202 N.J.

at 422 (quoting Ferreira v. Rancocas Orthopedic Assocs., 178

N.J. 144, 151 (2003)). Indeed, in Paragon, the Court found the

equities         tilted   in     favor        of     a     condominium       association

represented by competent counsel who failed to comply because of

an   assumption      that   the    trial       court's      failure     to   schedule     a

Ferreira conference tolled the statute's time bar. Even though,

as the Court explained, counsel was "not as assiduous as he

could   or       should   have    been,"       the       uncertainty    about    whether

Ferreira had created a "safe harbor" for late affidavits of

merit constituted an "exceptional circumstance" that warranted

relief. Paragon, supra, 202 N.J. at 425-26.                         That being so, and

particularly when coupled with the law's solicitude for minors,

I    fail    to     see   why     we    should       not     also     characterize      as

"exceptional" the minor's attorney's fumbling of the affidavit

of merit requirement,2 and I would hold that a trial judge has


2
  Implicit in Kubiak and today's decision is an understanding
that the minor will not be entirely deprived of a remedy — that
her medical malpractice action has been replaced with a legal
malpractice action, and all's right with the world. The adequacy
                                                     (continued)


                                              6                                  A-0589-14T1
discretion to grant a voluntary dismissal without prejudice in

this    circumstance.3          The      flexibility        judges        possess     when

considering        an     application           for    a         voluntary    dismissal

demonstrates why that is a better course than that compelled by

Kubiak.

       The pivotal question in any application for a voluntary

dismissal      centers,     often        exclusively,       on     the    prejudice     to

adverse parties.          See Shulas v. Estabrook, 385 N.J. Super. 91,

97 (App. Div. 2006); Burke v. Central R. Co., 42 N.J. Super.

387,   398    (App.     Div.    1956).     Here,      the   harm     or   prejudice     to

defendants is minimal, arguably nonexistent. Defendants are now

aware of the minor's claim, which could have otherwise lain

dormant      for   many    years      in   light      of    the     tolling   provision

legislatively         created      for     minors.         See     N.J.S.A.    2A:14-21



(continued)
of that relegated remedy, of course, requires an assumption of
many things the record does not disclose. But even if there is
an adequate remedy for the child at the end of the day, albeit
against other parties, is this exchange of one claim for another
a societal interest that we should be seeking to advance? Or,
more to the point, is this how the policies underlying the
affidavit of merit statute are to be served?
3
  I find no significance in plaintiff's failure to describe
former   counsel's   error   as    "extraordinary."  We   should
characterize and decide what is presented through our own
interpretation of the applicable legal principles and not be
held hostage to labels affixed by others. See, e.g., Rosenstein
v. State, Dep't of Treas., Div. of Pensions & Benefits, 438 N.J.
Super. 491, 496-97 (App. Div. 2014).



                                            7                                   A-0589-14T1
(declaring            that       the     two-year        personal       injury       statute          of

limitations is tolled for an injured minor until the minor turns

eighteen).            And the fact that defendants have been called upon

to    appear          unnecessarily        in     this     aborted       action,       and        incur

counsel      fees,          is    something      a   trial   court       may     redress          while

granting a voluntary dismissal without prejudice.                                 See R. 4:37-

1(b) (authorizing a dismissal without prejudice "upon such terms

and    conditions            as    the    court      deems       appropriate").            I    would,

therefore, remand for entry of a voluntary dismissal without

prejudice4 and allow for the judge's consideration of whether

there    is       a    need       for    the    imposition        of    terms    necessary            to

alleviate any harm or prejudice defendants may have suffered.

This    is    a       vastly      better       approach     in    that    it     preserves           the

minor's       claim,         protects       defendants       from        harm,       and       fosters

disposition of cases on their merits rather than on procedural

missteps. See Ragusa v. Lau, 119 N.J. 276, 284 (1990); Midland

Funding      LLC       v.    Albern,      433    N.J.     Super.       494,    499    (App.        Div.

2013); Tumarkin v. Friedman, 17 N.J. Super. 20, 27 (App. Div.

1951), certif. denied, 9 N.J. 287 (1952). Consequently, unlike




4
  Ordinarily, I would say we should remand for the judge's
exercise of her discretion as to whether to grant a voluntary
dismissal, but I can see here no principled basis for denying
such an application.



                                                     8                                         A-0589-14T1
my colleagues, I would depart from Kubiak and reverse the order

under review here.

    I respectfully dissent for these reasons.




                               9                       A-0589-14T1
