                                NOT FOR PUBLICATION WITHOUT THE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-1797-17T3

BRIAN BONET,

          Plaintiff-Appellant,

v.

DR. HARRY MONDESTEN, M.D.,
and DR. PASUPULETI, M.D., of
Helene Fuld Medical Center,

     Defendants-Respondents.
_________________________________

                    Argued December 17, 2018 – Decided January 2, 2019

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-0019-16.

                    Kendall S. Murphy argued the cause for appellant.

                    Ethan M. Simon argued the cause for respondent Dr.
                    Mondesten, M.D. (Blank Rome, LLP, attorneys;
                    Adrienne C. Rogove and Elaine D. Solomon, of
                    counsel; Adrienne C. Rogove and Ethan M. Simon, on
                    the brief).
            Donald Grasso argued the cause for respondent Dr.
            Pasupuleti, M.D. (Orlovsky, Moody, Schaaff, Conlon
            & Gabrysiak, attorneys; Donald Grasso, of counsel;
            Allison A. Krilla, on the brief).

PER CURIAM

      Plaintiff appeals from the Law Division's orders dismissing his complaint

against defendants for medical malpractice resulting in injuries he allegedly

sustained at birth. We affirm.

      According to the complaint he filed on January 4, 2016, plaintiff was born

in a hospital on January 4, 1995. He alleges that, on that date, defendants

performed a surgical procedure during his birth and failed to provide "good and

reasonable surgical care" to him.       "As a direct and proximate result of

defendant[s'] failure to exercise the skill, knowledge, and expertise required by

[their] profession," plaintiff claimed defendants "caused [him] to suffer severe

pain and injury during the birth in which the [d]efendants were involved, which

has subsequently plagued him for his entire life as a juvenile."

      At the time of plaintiff's birth on January 4, 1995, N.J.S.A. 2A:14-2

provided that medical malpractice actions had to "be commenced within two

years next after the cause of any such action shall have accrued." However,

well-established case law made clear that the statute of limitations on a personal

injury claim by a minor was tolled until the minor reached the age of majority,

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in this case eighteen. See, e.g., Green v. Auerbach Chevrolet Corp., 127 N.J.

591, 598 (1992). 1 Thus, plaintiff had the right to bring a malpractice action

against defendants for the injuries he allegedly sustained at the time of his birth

until January 4, 2015, which was two years after he reached age eighteen on

January 4, 2013. However, plaintiff did not file his complaint against defendants

until January 4, 2016, one year after the expiration of the governing statute of

limitations.2

      Because the bar of the statute of limitations was clear on the face of

plaintiff's complaint, defendants filed motions to dismiss the matter on this

ground3 and, after oral argument, the trial judge granted both motions and


1
  On June 7, 2004, the Legislature amended N.J.S.A. 2A:14-2 to provide that
"an action by or on behalf of a minor that has accrued for medical malpractice
for injuries sustained at birth shall be commenced prior to the minor's 13th
birthday." See L. 2004, c. 17, § 3. However, this provision did not become
effective until July 7, 2004. L. 2004, c. 17, § 33. The parties agree that this
revised statute of limitations does not apply under the factual circumstances
presented in this case.
2
   After he filed his complaint, plaintiff did not serve it upon defendants and, as
a result, it was administratively dismissed. After plaintiff finally served
defendants with the complaint on July 20, 2017, eighteen months after he filed
it, plaintiff successfully moved to reinstate the complaint.
3
   On appeal, plaintiff alleges that one of the defendants "violated the rules by
filing a motion to dismiss after previously filing an answer." This argument is
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
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                                        3
dismissed plaintiff's complaint with prejudice. The judge found that plaintiff

claimed in his complaint that his injuries occurred on January 4, 1995, the date

of his birth.   He also asserted that the injuries occurred as the result of

defendants' negligence and had "plagued him" since then. Therefore, the judge

concluded that the statute of limitations clearly expired on January 4, 2015, two

years after plaintiff reached the age of majority, and one year before he filed his

complaint.

      In so ruling, the judge rejected the assertion made by plaintiff's attorney

at oral argument that the "discovery rule" might apply to toll the running of the

statute of limitations. When the judge asked the attorney whether there was

"anything in the motion record to say this was what happened[,]" the attorney

replied there was not. Because plaintiff clearly failed to present any factual

basis to support his claim, the judge ruled that the statute of limitations had not

been tolled by the discovery rule and, instead, expired one year before plaintiff

filed his complaint. This appeal followed.

      On appeal, plaintiff contends that the trial judge's "grant of the motions to

dismiss was in error because the [c]omplaint does not aver undisputed facts

demonstrating the date of the accrual of the statute of limitations." We disagree.




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      In reviewing a Rule 4:6-2(e) dismissal, we employ the same standard as

that applied by the trial court. Donato v. Moldow, 374 N.J. Super. 475, 483

(App. Div. 2005). Our review is limited to the "legal sufficiency of the facts

alleged in the complaint." Id. at 482. We "assume the facts as asserted by

plaintiff are true[,]" and we give the plaintiff "the benefit of all inferences that

may be drawn[.]" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005)

(quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).

      However, when a complaint fails to make "the necessary factual

allegations and claims for relief[,]" the pleading must be deemed inadequate.

Miltz v. Borroughs-Shelving, 203 N.J. Super. 451, 458 (App. Div. 1985). The

resulting motion to dismiss for failure to state a claim "may not be denied based

on the possibility that discovery may establish the requisite claim; rather, the

legal requisites for plaintiff['s] claim must be apparent from the complaint

itself." Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App.

Div. 2003).

      Based on our indulgent reading of plaintiff's complaint, we are satisfied

that it was properly dismissed by the trial judge. On its face, the complaint states

that defendants injured plaintiff through their negligence during a surgical

procedure they performed on January 4, 1995. The complaint further states that


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                                         5
plaintiff was "plagued" by these injuries "for his entire life as a juvenile." Thus,

the complaint states that plaintiff was fully aware of his injury and the cause of

his injury while he was a minor. Accordingly, plaintiff had until January 4,

2015, two years after he reached the age of eighteen, to file his complaint.

However, he did not do so until January 4, 2016. "[W]here, as here, the bar of

the statute of limitations appear[ed] on the face of the complaint," the judge

properly granted defendants' motions to dismiss for failure to state a claim under

R. 4:6-2(e). Prickett v. Allard, 126 N.J. Super. 438, 440 (App. Div. 1974).

      As he did in the Law Division, plaintiff again suggests that the discovery

rule may have tolled the running of the statute of limitations because he might

not have known that defendants were responsible for causing his injuries until

sometime after he reached the age of eighteen. This argument plainly lacks

merit. R. 2:11-3(e)(1)(E).

      "Ordinarily, a cause of action accrues on the date upon which a wrongful

act or omission producing the harm occurs." J.P. v. Smith, 444 N.J. Super. 507,

525 (App. Div. 2016) (citing Beauchamp v. Amedio, 164 N.J. 111, 116 (2000)).

Thus, the statute of limitations "begins to run from the time of that wrongful

conduct." Ibid. In some cases, however, courts have held that the statute of

limitations should not begin to run "until the injured party discovers, or by an


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                                         6
exercise of reasonable diligence and intelligence should have discovered[,] that

he [or she] may have a basis for an actionable claim." Id. at 526 (alterations in

original) (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)).

      Under the discovery rule, a cause of action accrues when "the facts

presented would alert a reasonable person, exercising ordinary diligence, that he

or she was injured due to the fault of another." Caravaggio v. D'Agostini, 166

N.J. 237, 246 (2001). Thus, the accrual date, and the resultant computation of

the time limit, begins when a plaintiff knows or should know of the essential

facts to advance a cause of action. Baird v. Am. Med. Optics, 155 N.J. 54, 68

(1998) (noting that the time limit begins to run when the injured party has actual

or constructive knowledge of the material "facts indicating that [he or] she has

been injured through the fault of another, not when a lawyer advises [him or]

her that the facts give rise to a legal cause of action"). A plaintiff does not need

to know the legal effect or "specific basis for legal liability" for a claim to accrue

once the material facts of the case are known. Caravaggio, 166 N.J. at 246.

      In order for a trial court to consider whether the discovery rule might apply

in a particular case, however, the plaintiff must adequately plead it. This is so

because the burden of specifically pleading facts in the complaint showing the

date plaintiff reasonably could have learned of the injury rests upon the plaintiff.


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                                          7
See R. 4:5-2 (stating that the complaint must "contain a statement of the facts

on which the claim is based, showing that the pleader is entitled to relief, and a

demand for judgment for the relief to which the pleader claims entitlement").

      Here, plaintiff's complaint does not contain any allegations concerning the

date he reasonably could have learned of the wrongful cause of his alleged

injuries if, in fact, he did not accrue this knowledge prior to reaching the age of

eighteen. Plaintiff does not allege that he lacked knowledge that defendants

caused his injuries prior to January 4, 2013, or that he failed to make any causal

connection between the "severe pain and injury" he sustained "during [his] birth"

and which "subsequently plagued him for his entire life as a juvenile[,]" and the

surgery defendants performed on that date.

      When pressed by the trial judge for this information, plaintiff's attorney

candidly conceded that he could not provide it. The attorney did not supply a

certification from plaintiff to support the claim that the discovery rule tolled the

running of the statute of limitations, nor did plaintiff seek leave to file an

amended complaint to properly raise this issue.

      Contrary to plaintiff's contention, the judge was not required to conduct a

hearing on the merits of defendants' statute of limitations defense because such

a hearing is only needed "when the facts concerning the date of the discovery


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                                         8
[by plaintiff of his cause of action] are in dispute." Hill v. N.J. Dep't of Human

Servs., 204 N.J. 320, 336 n.6 (2010) (citing Dunn v. Borough of Mountainside,

301 N.J. Super. 262, 274 (App. Div. 1997)). That was clearly not the case here.

As noted above, plaintiff's complaint plainly stated that defendants caused him

to "suffer severe pain and injury during [his] birth" and that this injury "has

subsequently plagued him for his entire life as a juvenile." Therefore, the trial

judge properly rejected plaintiff's unsupported argument that the statute of

limitations should have been tolled by the discovery rule.

      Affirmed.




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