                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4111-17T3
                                                                    A-4126-17T3

SUKETU H. NANAVATI, M.D.,

          Plaintiff-Appellant,

v.

CAPE REGIONAL MEDICAL
CENTER,

     Defendant-Respondent.
____________________________

SUKETU H. NANAVATI, M.D.,

          Plaintiff-Appellant,

v.

CAPE REGIONAL HEALTH
SYSTEMS, d/b/a CAPE REGIONAL
MEDICAL CENTER, CAPE REGIONAL
HEALTH SYSTEM BOARD OF
TRUSTEES, JOANNE CARROCINO,
WILLIAM BRADWAY, D.O.,
MICHAEL BORISS, D.O., and
ARTHUR CHILDS, D.O.,

          Defendants-Respondents.
__________________________________

            Argued December 12, 2019 – Decided May 19, 2020

            Before Judges Alvarez, Suter and DeAlmeida.

            On appeal from the Superior Court of New Jersey,
            Chancery Division, Cape May County, Docket No.
            C-000078-16 in A-4111-17.

            On appeal from the Superior Court of New Jersey, Law
            Division, Cape May County, Docket No. L-0125-17 in
            A-4126-17.

            Anthony Morgano, Jr. argued the cause for appellant
            (Levine Staller Sklar Chan & Brown, PA, attorneys;
            Anthony Morgano, Jr., on the briefs).

            Anthony P. Monzo argued the cause for respondents
            (Monzo Catanese Hillegass, PC, attorneys; Anthony P.
            Monzo, on the briefs).

PER CURIAM

      Plaintiff Suketu H. Nanavati, M.D., a board certified cardiologist, appeals

from two orders granting summary judgment dismissing his complaints in

related cases. In 2016, Nanavati filed a Chancery action appealing defendant

Cape Regional Medical Center's (Hospital) failure to reappoint him as a staff

physician, and the termination of his clinical privileges at the facility. In 2017,

Nanavati filed an action in the Law Division seeking damages, among other

causes of action, pursuant to the New Jersey Law Against Discrimination


                                                                           A-4111-17T3
                                        2
(NJLAD), N.J.S.A. 10:5-1 to -49, common-law claims of wrongful discharge

under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), and the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14,

allegedly caused by the Board of Trustees of Cape Regional Health System

(Board), and certain named individuals, stemming from his termination of

employment by the Hospital. Nanavati and the Hospital's predecessor entity

have previously engaged in litigation regarding his status as a Hospital

physician. See Nanavati v. Burdette Tomlin Mem'l Hosp., 107 N.J. 240 (1987).

      We now reverse both orders. As to the Chancery matter, we conclude the

standards of review employed by the Fair Hearing Committee (Committee) in

two proceedings substantively strayed from the standard expressed in Nanavati.

Thus, we reverse the grant of summary judgment to defendants in the Chancery

proceeding, as the decision assumed the standard applied by the Committee was

correct.

      We also reverse the grant of summary judgment dismissing Nanavati's

complaint in the Law Division matter. That court, ignoring an unopposed

request for adjournment made by defendants, who had filed a motion to dismiss

for failure to state a claim, converted defendants' motion to an "unopposed"

summary judgment motion before discovery was taken. We also reverse the


                                                                      A-4111-17T3
                                      3
Law Division's denial of Nanavati's request for reconsideration, in which the

court, while acknowledging the request for adjournment and Nanavati's

assumption it would be granted, denied reconsideration on the merits without

explaining the reason the adjournment request was overlooked.

      By way of abbreviated background, Nanavati has openly expressed his

disapproval of Hospital policies and some staff for years; he and the Hospital

have a history of being at odds. The ongoing conflict led to the Hospital's

Credentials Committee's initial recommendation on March 25, 2015, to the

Medical Staff Executive Committee (MSEC) that Nanavati's request for

reappointment and renewal of his medical privileges be denied.             This

recommendation, adopted by the MSEC, led to the hearings before the

Committee. The Committee recommended that Nanavati complete a behavioral

program, which he did but months after the deadline.

      The later June 6, 2016 Committee report stated:

            [Nanavati] has failed to prove that the recommendation
            was arbitrary, unreasonable or capricious because of a
            lack of evidence that his behavior toward others could
            adversely affect the ability of the hospital to deliver
            quality health care to patients.

            There is substantial credible evidence in the record
            before the [MSEC] from which it could have concluded
            that [Nanavati] had engaged in a course of conduct,
            from 2009 to 2014, that was so disruptive as to interfere

                                                                        A-4111-17T3
                                       4
             with the orderly operation of the hospital in a way that
             could affect the ability of the hospital to deliver quality
             health care to patients.

             [(emphasis added).]

The Hospital bylaws express a different standard than the one employed by the

Committee:

             A basis for corrective action exists whenever a
             Practitioner engages in any action or behavior which is
             disruptive or is reasonably likely to be disruptive of
             Medical Center operations or to be detrimental to
             patient safety or delivery of good patient care, as
             outlined in the Medical Staff policy "Code of Conduct."

             [Article IX, § 5 (Disruptive Behavior) of the Medical
             Staff (emphasis added).]

      The MSEC adopted the Committee's June 6, 2016 report. After Nanavati

completed the internal appeal process, the Board affirmed the denial of his

request for reappointment and renewal of clinical privileges. Nanavati filed the

Chancery complaint following this decision.

      By August 10, 2017, when a telephonic case management conference was

conducted in the Chancery matter, Nanavati had also initiated the Law Division

action.   The Chancery judge requested the parties file cross-motions for

summary judgment on the legal issues. Nanavati indicated he would seek only




                                                                           A-4111-17T3
                                         5
partial summary judgment because the Committee had applied an incorrect

standard in its decision.

      In the interim, an incident occurred which led to Nanavati's summary

suspension. The summary suspension hearing was guided by the same hearing

officer who guided the Committee through the parallel reappointment process.

The Committee issued a report on September 18, 2017, stating that Nanavati had

failed to carry his burden of proof of demonstrating by clear and convincing

evidence that the Board acted arbitrarily and without a credible basis in

summarily suspending him on June 16, 2015, and upheld the suspension.

      The Law Division action, filed March 20, 2017, was assigned a 450-day

discovery track, scheduled to end August 17, 2018.         On May 24, 2017,

defendants moved to dismiss the Law Division complaint for failure to state a

claim or, in the alternative, for summary judgment, pursuant to Rule 4:6-2(e).

      The parties agreed the motion would be adjourned to allow the summary

suspension hearing to move forward. On June 14, 2017, Nanavati's attorney

requested an adjournment until August 14, 2017, to allow sufficient time for a

hearing in the companion Chancery matter to occur. That request was granted

and communicated to defense counsel on June 20, 2017. On June 22, 2017,




                                                                        A-4111-17T3
                                       6
defendants, the moving parties, requested a second postponement—which was

granted—that the motion be carried until September 2017.

     During an August 10, 2017 telephonic management conference in the

Chancery matter, the parties again agreed to carry defendants' Law Division

motion until the cross-motions for summary judgment in the Chancery matter

were decided. Nanavati's attorney took no action because he assumed the

request would be handled internally and conveyed to the Law Division by the

Chancery court.

     On August 31, 2017, defendants' counsel contacted Nanavati's attorney to

confirm his consent to the adjournment. He confirmed consent because the Law

Division calendar still listed the motion as returnable on September 1.

Defendants' attorney, upon receiving confirmation of the consent, again

requested the court adjourn the motion. He wrote:

           Please accept this letter as our request for an
           adjournment of the Motion for Summary Judgment
           pending before this Court. We are requesting that a
           hearing in this matter be adjourned until the first motion
           date in December. Adjourning the return date on this
           Motion will allow for a determination to be made in the
           Chancery Division case, Docket No. CPM-C-78-16.
           Cross Summary Judgment Motions are scheduled to be
           heard on October 3, 2017, and a resolution of the
           Chancery matter will likely resolve portions of the Law
           Division case. We have spoken to opposing counsel,
           and he has consented to this adjournment.

                                                                        A-4111-17T3
                                       7
      The Law Division judge, without notice to either party, decided the

motion. He found there was "no general issue of material fact[,]" and that "[t]he

arguments in Plaintiff's Complaint contradict themselves or the relevant statute

. . . ." The judge noted in the decision that the application was "unopposed." He

converted the motion to dismiss for failure to state a claim to a motion for

summary judgment.

      Nanavati's counsel was served with the summary judgment order

September 25, 2017, and on October 11, moved for reconsideration. In their

response, defendants did not object to the rescheduling of the motion to dismiss

to allow Nanavati to file "a reply brief," and have the "opportunity to present

oral argument to the court."      Defendants reiterated that the request for

adjournment stemmed from the parties' consensus that resolution of the

Chancery action "would have simplified the claims for damages in the [Law

Division action] . . . ." They also asserted that they were entitled to summary

judgment as a matter of law.

      In his decision on the motion for reconsideration, the judge did not

mention his notation that the prior application was "unopposed," nor did he

explain the reason he decided the initial application in the face of the movant's

unopposed request for adjournment, stemming from the earlier parallel


                                                                         A-4111-17T3
                                       8
proceeding in Chancery, and before discovery had begun in the matter. The

court instead addressed the merits—finding that Nanavati was an independent

contractor not protected under NJLAD, common law, or CEPA, and further

finding that the Healthcare Quality Improvement Act of 1986 (HCQIA), 42

U.S.C. §§ 11111(a)(2) and 11151(9), immunized defendants from any action

taken adverse to Nanavati.

      Nanavati raises the following points on the appeal of the Chancery matter:

            POINT I
            The Lower Court Erred In Holding That The Hospital's
            Bylaws Afforded Dr. Nanavati A Fundamentally Fair
            Process.

                  A.   The Lower Court Erred In Declaring That
                  Dr. Nanavati Received A Fair Process As The
                  Hospital's Bylaws Allow The MSEC To Reach
                  An Ex-Parte Recommendation Before Dr.
                  Nanavati Is Entitled To Any Due Process.

                  B.   The Lower Court Erred In Declaring That
                  Dr. Nanavati Received A Fair Process As Once
                  The Ex-Parte Recommendation Is Made, The
                  Hospital's Bylaws Impermissibly Shift The
                  Burden Of Proof To The Physician To Prove By
                  Clear And Convincing Evidence That
                  Recommendation Was Arbitrary, Capricious, Or
                  Unreasonable.

            POINT II
            The Lower Court Erred In Failing To Address Dr.
            Nanavati's Argument That The Hearing Officer
            Misapplied Controlling Supreme Court Precedent.

                                                                        A-4111-17T3
                                       9
POINT III
The Lower Court Erred As A Fair Process Required Dr.
Nanavati To Have Subpoena Power To Compel
Recalcitrant Witnesses To Appear For A Hearing.

POINT IV
The Lower Court Erred In Failing To Address Dr.
Nanavati's Argument That He Was Precluded By The
Hearing Officer From Introducing Highly Relevant
Evidence.

     A.    The Hearing Officer Improperly Precluded
     Dr. Nanavati From Introducing Evidence That He
     Had Attended An Approved Behavior
     Modification    Course,     And     Psychiatric
     Evaluation.

     B.    The Hearing Officer Erred In Allowing
     The Hospital To Introduce Evidence Of Certain
     Events That Occurred Before 2010 While
     Simultaneously Precluding Dr. Nanavati From
     Testifying As To Events That Occurred During
     The Same Time Period.

POINT V
The Lower Court Erred In Failing To Address Dr.
Nanavati's Arguments That The Hospital Violated Its
Own Bylaws During The Course Of Its Investigations.

     A.     The Lower Court Erred In Failing To
     Address Dr. Nanavati's Argument that the MSEC
     failed to interview all relevant witnesses and
     failed to include relevant exculpatory eviden[ce].

     B.   The Lower Court Erred In Failing To
     Address Dr. Nanavati's Argument That The
     Appointment Of A Non-Physician To The


                                                          A-4111-17T3
                         10
            Investigative   Committees      Violated     The
            Hospital's Bylaws.

      POINT VI
      The Lower Court Erred As A Matter Of Law In
      Granting Summary Judgment In Its Entirety As The
      Record Was Deeply Controverted And Necessitated A
      Plenary Hearing.

In the Law Division matter, Nanavati raises the following issues:

      POINT I
      The Lower Court's September 13, 2017 Order Erred In
      Granting Defendants' Motion To Dismiss As
      Unopposed.

            A.   The Lower Court Abused Its Discretion
            When It Decided Defendants' Motion As
            Unopposed In Light Of The Fact That Defendants
            Had Requested An Adjournment Of Its Own
            Motion, Plaintiff Consented Thereto, And The
            Court Provided No Notice Of Its Intention To
            Decide The Motion As Unopposed.

            B.    Plaintiff's Complaint, Which Must Be
            Read Liberally, Sufficiently Stated Causes Of
            Action To Withstand A Motion To Dismiss.

                  1.    Defendants' Argument That Plaintiff
                  Failed To Plead Sufficient Facts To
                  Support A New Jersey Law Against
                  Discrimination Claim.

                  2.   Defendants' Position That Dr.
                  Nanavati Failed To State A Claim Under
                  CEPA was without merit.



                                                                    A-4111-17T3
                               11
          3.   Defendants'   Immunity   Argument
          Was Premature.

          4.   Plaintiff's Common Law Claims
          Were Not Waived By Asserting A CEPA
          Claim.

     C.    The Lower Court Improperly Converted
     Defendants' Motion To Dismiss Into A Motion
     For Summary Judgment Which Was Procedurally
     Premature As No Discovery Had Taken Place.

POINT II
The Lower Court's April 18, 2018 Order Erred In
Denying Plaintiff's Motion For Reconsideration.

     A.   The Court's Decision Made No Findings
     With Respect To Plaintiff's Procedural
     Arguments That Defendants' Motion To Dismiss
     Should Not Have Been Granted As Unopposed In
     Light Of The Fact That Defendants Had
     Requested An Adjournment Of Their Own
     Motion, Plaintiff Consented Thereto, And The
     Court Provided No Notice Of Its Intention To
     Decide The Motion As Unopposed.

     B.    The Court Erred As A Matter Of Law In
     Finding That Plaintiff Was An Independent
     Contractor And Therefore Not Protected Under
     The Law Against Discrimination.

     C.  The Court Erred In Finding That Plaintiff
     Had Failed To Plead Sufficient Facts To
     Demonstrate A Hostile Work Environment.

     D.    The Court Erred As A Matter Of Law In
     Finding That Plaintiff Could Not Maintain A
     Conscientious Employee Protection Act Claim

                                                     A-4111-17T3
                       12
                    Because He Was Classified As An Independent
                    Contractor.

                    E.    The Court Erred As A Matter Of Law In
                    Finding That The Hospital Was Entitled To
                    Immunity Under The Health Care Quality
                    Improvement Act.

                    F.    The Court Erred In Finding That Plaintiff
                    Had Failed To State Causes Of Action For Breach
                    Of Contract And Breach Of Good Faith And Fair
                    Dealing.

      We discuss each judge's analysis in greater detail in the relevant sections

of this decision.

                                       I.

      In Nanavati, the Court decided the appropriate standard for termination of

hospital privileges during a fair hearing requires "concrete evidence" that the

"prospective disharmony" caused by a staff physician, "will probably have an

adverse impact on patient care." Nanavati, 107 N.J. at 254 (emphasis added)

(quoting Sussman v. Overlook Hosp. Ass'n, 92 N.J. Super. 163, 182 (Ch. Div.

1966)).   The Court instructed hospitals to "follow fair procedures when

considering staff privileges," prohibiting them from "arbitrarily foreclos[ing]

otherwise qualified doctors from their staff." Id. at 248. It is unnecessary that

the prospective disharmony actually harm patients—only that it "will probably

have an adverse impact on patient care." Id. at 254.

                                                                         A-4111-17T3
                                      13
      To merit termination, "hospital authorities should present concrete

evidence of specific instances of misbehavior, such as unjustified altercations

with other doctors or nurses, violations of hospital practices or rules, breaches

of professional standards, or the commission of some other act that will

adversely affect health care delivery." Ibid. The physician's conduct must be

so disruptive "as to throw the hospital into turmoil and prevent it from

functioning effectively. So substantial a disruption could lead the hospital

authorities to conclude that the probable outcome will be harm to the patients."

Id. at 255.

      In contrast with the Nanavati standard, the Committee concluded that

Nanavati "failed to prove that the recommendation was arbitrary, unreasonable

or capricious because of a lack of evidence that his behavior towards others

could adversely affect the ability of the hospital to deliver quality health care to

patients." (emphasis added).

      This articulation of the standard made Nanavati's burden of proof

insurmountable and predetermined the outcome—to prevail, he was required by

"clear and convincing evidence" to prove the record lacked any evidence that

his behavior "could" adversely affect patient care. The burden placed on him




                                                                            A-4111-17T3
                                        14
was even greater than the burden of proof defined in the bylaws—which itself

diverged to some extent from the language in Nanavati.

      The Hospital bylaws state a practitioner exposes himself to "corrective

action . . . whenever a Practitioner engages in any action or behavior . . .

reasonably likely to be disruptive of Medical Center operations or to be

detrimental to patient safety or delivery of good patient care . . . ."

"[R]easonably likely" is not as exacting as "will probably have"—however, it is

more demanding than the "could affect" standard applied by the Committee

when reviewing Nanavati's conduct.      "Could affect" encompasses an entire

universe of possibilities, as opposed to probabilities. And neither phrasing

mirrors the Nanavati language.

      Nanavati argued to the Chancery judge that the Committee employed the

wrong standard, thereby depriving him of a fair hearing. Although the Chancery

judge repeatedly referenced Nanavati, and even correctly repeatedly referenced

the case's articulation of the standard, nowhere in the decision did he address

the Committee's failure to use the Nanavati standard. The court erred in granting

summary judgment to defendants, and in denying partial summary judgment to

Nanavati, because the Committee expanded their inquiry to include whether

Nanavati's conduct "could have" an adverse impact on patient care. Application


                                                                         A-4111-17T3
                                      15
of a less exacting standard for his conduct to impact patient care prejudiced his

right to a fair hearing.

       Separately from ignoring the Committee's actual language, the Chancery

judge focused on Nanavati's real-life failures. Nanavati did not, for example,

timely complete a behavior modification course as required by the Credentials

Committee. He did not complete the psychiatric evaluation that might have

prevented his immediate suspension. The judge said his conduct showed "a level

of recalcitrance that undermines his arguments." Although those facts may be

readily provable by defendants, and ultimately drive the outcome in the

Chancery case—the judge did not first address the law. Had he done so, the

inquiry would have stopped there.

       In this case, the Committee decided Nanavati's conduct "could," as

opposed to "probably would," adversely impact patient care. See Nanavati, 107

N.J. at 25. Nanavati was entitled to partial summary judgment as a matter of

law.

       Nanavati also contends that the judge should not have granted summary

judgment in light of the highly controverted record. We need not reach the issue.




                                                                         A-4111-17T3
                                      16
                                        II.

      Nanavati also contends the Law Division judge erred in granting summary

judgment to defendants because the parties had agreed, with the Chancery

court's reasonable endorsement, to adjourn the motion to dismiss for failure to

state a claim. He argues summary judgment was procedurally improper because

the judge failed to address the fact the parties believed the matter was postponed,

and because no discovery had been taken. He further asserts that the complaint

sufficiently stated a cause of action to withstand a motion to dismiss. We decide

this appeal based upon the judge's failure to address the requested adjournment

in his summary judgment and reconsideration decisions, but briefly touch upon

the judge's comments on the merits.

      The judge did not explain his decision to address the motion despite the

request for adjournment. To reiterate, defendants—the moving party—were the

ones who asked for the postponement. Although Nanavati did not join in that

request, he consented to and had previously obtained postponements.

      In deciding whether to grant a request for adjournment, a court assesses a

number of well-established factors. See State v. Hayes, 205 N.J. 522, 538

(2011). A court is expected to engage in a "balancing process informed by

intensely fact-sensitive inquiry."    Ibid.   Applications for continuances or


                                                                           A-4111-17T3
                                       17
adjournments are reviewed for abuse of discretion. State ex rel. Comm'r of

Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1, 7 (App. Div. 2013).

      That the judge here ignored the request for adjournment was in itself an

erroneous exercise of discretion. He failed to even acknowledge it, much less

make a fact-sensitive determination in light of the factors enumerated by

defendants in their written request.

      The notation on his summary judgment decision that the application was

"unopposed" is also problematic. The judge was told a related Chancery action

was ongoing. He had previously granted two requests for postponements made

by Nanavati. This should have triggered some inquiry as to the status of

opposition.

      Equally problematic is that the judge converted the motion to dismiss for

failure to state a claim to a summary judgment application even though they

should not ordinarily be granted prior to the completion of discovery. Mohamed

v. Iglesia Evangelica Oasis De Salvacion, 424 N.J. Super. 489, 498 (App. Div.

2012) (citing Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App.

Div. 2003)). No discovery was taken here. Nanavati's discrimination and

retaliation causes of action in particular required discovery.




                                                                        A-4111-17T3
                                       18
      The judge's written decision on Nanavati's motion for reconsideration did

not mention in the analysis portion, or the conclusion section, the request for

adjournment. This is so despite the opinion mentioning the request in the

recitation of facts, and the contention that the court overlooked the request for

an adjournment. The judge instead denied the motion on the merits.

      Motions for reconsideration are controlled by Rule 4:49-2. "And, the

magnitude of the error cited must be a game-changer for reconsideration to be

appropriate." Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010).

The magnitude of the error in this case would seem to us to be a game changer.

Ignoring the request for adjournment was incomprehensible.            The parties

reasonably assumed the matter would be adjourned. No discovery had been

taken. The matter was hotly contested.

      Reconsideration falls "within the sound discretion of the Court, to be

exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401

(Ch. Div. 1990). We review such decisions applying the same legal standard as

the trial court. See Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461-62

(App. Div. 2002).

      As a matter of fundamental justice, a reconsideration motion filed because

a judge overlooks a consented-to and reasonable request for adjournment is one


                                                                           A-4111-17T3
                                       19
that should have been granted. Furthermore, we have other concerns regarding

the judge's initial decision on the motion for summary judgment.

      On the motion, after setting forth the procedural history, plaintiff's

arguments, and then defendants' arguments, the court said only the following:

            Viewed in favor of Plaintiff, Defendant's [sic] Motion
            shows that there is no genuine issue of material fact. In
            combination with Plaintiff's long legal history of
            dismissed complaints, Defendant's [sic] arguments
            indicate that this . . . matter is so one sided that
            Defendant[s] should prevail as a matter of law.

            The arguments in Plaintiff's Complaint contradict
            themselves or the relevant statutes, and have failed to
            establish facts in issue sufficient to warrant the matter
            proceeding to trial.

That abbreviated analysis does not satisfy the requirements of Rule 1:7-4, which

mandate that a judge rendering a decision on a motion must make findings of

fact and render conclusions of law. There is a reference to the prior history

between the parties that may have factored into the judge's decision from

irrelevant information. Curiously, on the motion for reconsideration, the judge

addressed the merits at great length. In sum, the judge, having erred in ignoring

the adjournment request, compounded the error by failing to address the request

on the motion for reconsideration.




                                                                         A-4111-17T3
                                      20
      We briefly discuss some of our concerns regarding the language in the

merits section of the judge's reconsideration decision. We do not suggest by this

discussion that Nanavati should or should not withstand a second motion for

summary judgment, or prevail at trial, should matters reach that phase.

      First, in denying reconsideration, the court found Nanavati to be an

independent contractor and therefore not protected under the NJLAD. The judge

did so in reliance upon Pukowsky v. Caruso, 312 N.J. Super. 171, 178 (App.

Div. 1998). But in Rubin v. Chilton, 359 N.J. Super. 105, 111 (App. Div. 2003),

a more recent case, we rejected the argument that N.J.S.A. 10:5-12(l) never

applies to independent contractors. "The conduct prescribed by [N.J.S.A. 10:5-

12(l)] is exclusively related to non-employee relationships . . . . [A] Hospital

[is] not required to contract for [a contractor's] service but [cannot] not refuse

to do so for discriminatory reasons." Ibid. If Nanavati enjoys the protection of

NJLAD despite being an independent contractor, then the judge's out -of-hand

rejection of the claim was error.

      Nanavati also points out that his claim was not time barred by the two-

year statute of limitations for NJLAD. See Montells v. Haines, 133 N.J. 282,

290 (1993). He alleges the Hospital's improper conduct of him began in 1979

and included actions taken through and including November 1, 2016.


                                                                          A-4111-17T3
                                       21
      In D'Annuzio v. Prudential Insurance Co. of America, 192 N.J. 110, 121

(2007), the New Jersey Supreme Court in the context of a CEPA claim stated

that the definition of employee "does not exclude, explicitly, p ersons who are

designated as independent contractors," and included "more than the narrow

band of traditional employees." The Court in D'Annuzio adopted the Pukowsky

factors for assessing the real employer-employee status of an alleged

independent contractor, which require a highly fact-sensitive inquiry.

D'Annuzio, 192 N.J. at 114. In other words, even where an employee is labeled

an independent contractor, he or she may enjoy the protection under CEPA after

consideration of the Pukowsky factors. Id. at 120-21. The issue was highly

fact-sensitive—and ordinarily should not be decided based on unopposed

submissions by defendants on a motion for summary judgment.

      Similarly, Nanavati's common-law claims should not have been dismissed

out of hand, pursuant to Pierce. Defendants' contention that by alleging causes

of action under CEPA, he waived his common-law claims is unconvincing here.

Given that defendants took the position CEPA is inapplicable because Nanavati

was an independent contractor and not an employee of the hospital, it then

follows logically that Nanavati's common-law claims are not waived under the

exclusivity provision, N.J.S.A. 34:19-8. Assuming that CEPA is applicable,


                                                                       A-4111-17T3
                                     22
dismissal of the common-law claims under the exclusivity provision was in any

event premature. Nanavati did not engage in discovery and was not in a position

to make a meaningful election of whether he wished to pursue his claims under

CEPA or under Pierce.

      Additionally, the judge found that the named defendants had immunity

pursuant to the HCQIA, 42 U.S.C. §§ 11111(a)(2) and 11151(9). Nanavati

contends that dismissal under the immunity argument was premature because

the judge did not determine if he was denied procedural due process, or if the

peer review process defendants engaged in was undertaken in bad faith or with

improper motive.     On that score, obviously, precluding Nanavati from

submitting a response to the original motion and scheduling oral argument

prevented him from presenting any facts to challenge the immunity.

      In sum, we do not understand the reason the judge initially did not address

the request for postponement.       Nor do we understand the absence on

reconsideration of discussion about the adjournment request or why discovery

had not been completed, and why the judge converted the motion for failure to

state a claim to a motion for summary judgment.

      Reversed.




                                                                         A-4111-17T3
                                      23
