                        NOT FOR PUBLICATION WITHOUT THE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-4725-16T1

ALI BADR,

        Plaintiff-Appellant,

v.

LUIS E. COLON,

     Defendant-Respondent.
_____________________________

              Argued May 30, 2018 – Decided June 21, 2018

              Before Judges Carroll and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              2747-15.

              Greg D. Shaffer argued the cause for appellant
              (Brandon J. Broderick, attorney; Brandon J.
              Broderick, on the brief).

              Thomas F. McGuane argued the cause for
              respondent (McElroy, Deutsch, Mulvaney &
              Carpenter, LLP, attorneys; Thomas F. McGuane
              and Joseph G. Fuoco, of counsel and on the
              brief.

PER CURIAM

        Plaintiff Ali Badr appeals an order entered by the Law

Division on May 12, 2017, denying his motion for reconsideration
of an order denying his motion to reinstate his complaint, which

was   dismissed    for   failure   to         comply    with    the     physician's

certification requirement in N.J.S.A. 39:6A-8(a).                 We reverse and

remand.

                                    I.

      Plaintiff alleges that he was injured in a motor vehicle

accident as a result of the negligent acts of defendant Luis E.

Colon.    Plaintiff's insurance coverage is subject to a limited

threshold   option   that   exempts       a    negligent       driver    from     tort

liability    for   non-economic    injuries            unless    plaintiff        "has

sustained . . . a permanent injury within a reasonable degree of

medical probability . . . ."          N.J.S.A. 39:6A-8(a).              "An injury

shall be considered permanent when the body part or organ, or

both, has not healed to function normally and will not heal to

function normally with further medical treatment."                    Ibid.

      To maintain a claim for non-economic damages, plaintiff is

required to produce a physician's certification of permanency of

injury.   N.J.S.A. 39:6A-8(a) provides, in pertinent part:

            In order to satisfy the tort option provisions
            of this subsection, the plaintiff shall,
            within [sixty] days following the date of the
            answer to the complaint by the defendant,
            provide the defendant with a certification
            from a licensed treating physician or a board-
            certified licensed physician to whom the
            plaintiff was referred by the treating
            physician.    The certification shall state,

                                      2                                       A-4725-16T1
           under penalty of perjury, that the plaintiff
           has sustained an injury described above. The
           certification shall be based on and refer to
           objective clinical evidence . . . . The court
           may grant no more than one additional period
           not   to  exceed   60   days   to   file   the
           certification pursuant to this subsection upon
           a finding of good cause.

           A person is guilty of a crime of the fourth
           degree   if  that   person   purposefully  or
           knowingly makes, or causes to be made, a
           false, fictitious, fraudulent, or misleading
           statement of material fact in, or omits a
           material fact from, or causes a material fact
           to be omitted from, any certification filed
           pursuant to this subsection.

     On   June   26,   2015,   plaintiff   filed   a   complaint   against

defendant alleging that he suffered serious and permanent injuries

as a result of defendant's negligent operation, maintenance, or

repair of his vehicle on June 28, 2013.            The complaint alleges

that plaintiff complied with the requirements of N.J.S.A. 39:6A-

8(a) and that a "copy of the Physician's Certificate of Merit is

attached" to the complaint.      There was, however, no attachment to

the complaint.

     On September 8, 2015, defendant filed an answer.          Plaintiff

did not file a physician's certification of permanency of injury

within 60 days of the filing of defendant's answer.                Nor did

plaintiff seek an extension of the filing deadline.

     Discovery proceeded in the ordinary course.         Ultimately, the

court set a discovery end date of September 2, 2016.           On August

                                    3                              A-4725-16T1
11, 2016, plaintiff produced the report of a physician designated

by plaintiff as a potential expert witness.          The report is not in

certification form.      In addition, the author is not a treating

physician or a board-certified physician to whom plaintiff was

referred by a treating physician, but is a physician designated

to serve as plaintiff's expert witness.             However, the report

describes some of plaintiff's injuries as permanent, details the

clinical data on which it is based, and ends with a statement that

the physician is aware that it is a fourth degree crime to

purposely and knowingly made a false statement in the report.

     On October 27, 2016, the matter was submitted to non-binding

arbitration.    The arbitrator found no cause of action because of

plaintiff's    failure   to   submit   a   physician's   certification     of

permanency of injury pursuant to N.J.S.A. 39:6A-8(a).

     Approximately    two     months   later,   plaintiff   still   had   not

submitted a physician's certification.          As a result, on December

21, 2016, defendant moved to dismiss the complaint for plaintiff's

failure to comply with N.J.S.A. 39:6A-8(a).

     In response to the motion, on January 17, 2017, plaintiff

submitted what purported to be a physician's certification of

permanency of injury. The certification, signed by a chiropractor,

stated, in relevant part:



                                       4                            A-4725-16T1
            The [p]laintiff, Ali Badr, as a result of a
            motor   vehicle   accident  on   06/28/2013,
            sustained the following injuries:        See
            diagnosis in my attached report.        Such
            injuries have resulted in permanent injury.
            Permanent injury means a body part or organ
            or both has not healed to function normally
            and to medical probability will not heal to
            function   normally  with  further   medical
            treatment.

            This certification is based upon the following
            objective clinical evidence: See my attached
            narrative report which I hereby incorporate
            by reference.

There was, however, no report attached to the certification.

     On January 18, 2017, plaintiff served an amended physician's

certification from the chiropractor.           The only change from the

prior version of the certification is that "See diagnosis in my

attached report" was redacted and replaced with the handwritten

notation "Disc Herniation C5-6 Disc Bulging C4-5."            The amended

certification still stated that it was "based on the following

objective clinical evidence:        See my attached narrative report

which I hereby incorporate by reference."        No report, however, was

attached.

     On January 20, 2017, the trial court granted defendant's

motion and dismissed the complaint without prejudice.

     On   February   21,   2017,   plaintiff   moved   to   reinstate   the

complaint.    The motion papers did not include a new physician's



                                     5                             A-4725-16T1
certification.     Instead, plaintiff reiterated that the amended

certification had been submitted in response to the motion.

       On March 17, 2017, the trial court denied plaintiff's motion.

The court stated its reasoning as follows:

            Plaintiff failed to satisfy the requirements
            of N.J.S.A. 39:6A-8.    Plaintiff failed to
            timely submit a Certificate of Merit within
            the applicable time period.   Certificate of
            merit was submitted over an entire year past
            due and as such [p]laintiff did not comply
            with the statute.

       On April 7, 2017, plaintiff moved for reconsideration.               In

his moving papers, plaintiff characterized the court's March 17,

2017 order as interlocutory and relied on Rule 4:42-2.             He argued

that    because   his   failure   to       timely   submit   a   physician's

certification was a procedural deficiency, the court should have

imposed a lesser sanction, and allowed his substantive claims to

be heard.    In support of its position, plaintiff relied primarily

on our holding in Watts v. Camaligan, 344 N.J. Super. 453 (App.

Div. 2001), and argued, as he had in support of his motion to

reinstate the complaint, that he complied with N.J.S.A. 39:6A-8(a)

when he submitted the amended certification to the court.                 His

moving papers did not address the deficiency in the amended

certification.

       On May 12, 2017, the trial court denied plaintiff's motion

for reconsideration.     The court expressed the view that it did not

                                       6                             A-4725-16T1
have discretion to impose a sanction other than dismissal of the

complaint.   In response to plaintiff's argument that the late

submission of a physician's certification is a procedural lapse

that does not warrant dismissal when a less drastic remedy would

satisfy the statute's objectives, the court stated:

         I don't disagree with that assessment, and
         . . . perhaps, philosophically, I agree with
         you . . . but based upon the case law, and the
         rules . . . I do[ not] think I have any
         discretion. . . .     [N]othing would make me
         happier if you take this up and get me
         overruled. . . .     Because . . . under the
         current state of the law, I do[ not] think I
         have the discretion.     The statute is very
         strict that it must be filed within 120 days
         or the case must be dismissed. . . . [F]ailure
         to file that affidavit of merit within the
         strict requirements of [N.J.S.A.] 39:6A-8
         warrants a dismissal of this case, and it will
         die on a motion based upon that simple fact.

    This appeal followed.   Plaintiff's notice of appeal was late,

requiring a motion to accept the notice of appeal as if it had

been filed in a timely fashion.       On August 10, 2017, this court

granted plaintiff's motion, but limited his appeal to the May 12,

2017 order denying plaintiff's motion for reconsideration.        The

court found that plaintiff's notice of appeal was "inexcusably

untimely as to the prior orders" of the trial court.




                                  7                          A-4725-16T1
                                     II.

     We begin our analysis with the observation that the standards

set forth in Rule 4:49-2 and Rule 4:50-1 should have guided

resolution of plaintiff's motion for reconsideration. Plaintiff's

characterization of the March 17, 2017 order as interlocutory was

incorrect.    As the Supreme Court explained, “[b]y definition, an

order that ‘does not finally determine a cause of action but only

decides some intervening matter pertaining to the cause[,] and

which   requires   further   steps   .     .   .   to   enable   the    court    to

adjudicate the cause on the merits[,]’ is interlocutory.”                     Moon

v. Warren Haven Nursing Home, 182 N.J. 507, 512 (2005) (quoting

Black’s Law Dictionary 815 (6th ed. 1990)); see also Wein v. Morris,

194 N.J. 364 (2008).         The March 17, 2017 order, which denied

plaintiff's   motion   to    reinstate     the     complaint     that   had   been

dismissed without prejudice, resolved all claims as to all parties,

and was a final order.

     Rule 4:49-2 provides:

           Except as otherwise provided by R. 1:13-1
           (clerical errors) a motion for rehearing or
           reconsideration seeking to alter or amend a
           judgment or order shall be served not later
           than 20 days after service of the judgment or
           order upon all parties by the party obtaining
           it. The motion shall state with specificity
           the basis on which it is made, including a
           statement of the matters or controlling
           decisions which counsel believes the court has
           overlooked or as to which it has erred, and

                                      8                                   A-4725-16T1
          shall have annexed thereto a copy of the
          judgment or order sought to be reconsidered
          and a copy of the court’s corresponding
          written opinion, if any.

     Rule 4:50-1 sets forth the grounds on which a party may be

relieved from operation of a final judgment:

          On motion, with briefs, and upon such terms
          as are just, the court may relieve a party or
          the party’s legal representative from a final
          judgment or order for the following reasons:
          (a) mistake, inadvertence, surprise, or
          excusable neglect; (b) newly discovered
          evidence which would probably alter the
          judgment or order and which by due diligence
          could not have been discovered in time to move
          for a new trial under R. 4:49; (c) fraud
          (whether heretofore denominated intrinsic or
          extrinsic),   misrepresentation,    or   other
          misconduct of an adverse party; (d) the
          judgment or order is void; (e) the judgment
          or order has been satisfied, released or
          discharged, or a prior judgment or order upon
          which it is based has been reversed or
          otherwise vacated, or it is no longer
          equitable that the judgment or order should
          have prospective application; or (f) any other
          reason justifying relief from the operation
          of the judgment or order.

          [R. 4:50-1.]

     An application to set aside an order pursuant to Rule 4:50

is addressed to the motion judge's sound discretion, which should

be guided by equitable principles.    Hous. Auth. v. Little, 135

N.J. 274, 283 (1994).    A trial court's determination under Rule

4:50-1 is entitled to substantial deference and will not be

reversed in the absence of a clear abuse of discretion.    US Bank

                                9                          A-4725-16T1
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).                 To warrant

reversal of the court's order, plaintiff must show that the

decision was "made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis."     Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J.

88, 123 (2007) (internal quotations omitted)).

      The only subsection of Rule 4:50-1 under which plaintiff

arguably could have sought relief is subsection (f).               Relief under

subsection     (f)   is   available         only   when   "truly   exceptional

circumstances are present." Hous. Auth., 135 N.J. at 286 (citation

omitted).      "The movant must demonstrate the circumstances are

exceptional and enforcement of the judgment or order would be

unjust, oppressive or inequitable."            Johnson v. Johnson, 320 N.J.

Super. 371, 378 (App. Div. 1999) (citation omitted).

      In determining whether a party should be relieved from a

judgment or order, courts must balance "the strong interests in

the finality of litigation and judicial economy with the equitable

notion that justice should be done in every case."                  Jansson v.

Fairleigh Dickinson Univ., 198 N.J. Super. 190, 193 (App. Div.

1985).      Where a procedural violation is involved, additional

considerations are implicated, namely, "'[t]he defendant's right

to   have   the   plaintiff   comply    with       procedural   rules[,    which]

conflicts with the plaintiff's right to an adjudication of the

                                       10                                 A-4725-16T1
controversy on the merits.'"             Abtrax Pharms. v. Elkins-Sinn, 139

N.J. 499, 513 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 252

(1982)).     In all cases, however, "'justice is the polestar and our

procedures must ever be moulded and applied with that in mind.'"

Jansson, 198 N.J. Super. at 195 (quoting New Jersey Highway Auth.

v. Renner, 18 N.J. 485, 495 (1955)).

       In addition to reiterating the arguments he made before the

trial court, plaintiff argues for the first time on appeal that

the    expert      report     he   produced      during   discovery,     in   effect,

satisfied N.J.S.A. 39:6A-8(a).                Plaintiff argues the trial court

should      have   reconsidered       its    decision     not   to     reinstate    the

complaint because he substantially complied with the statute.

Plaintiff also argues that the trial court mistakenly concluded

that   it    lacked     discretion     to     reinstate    a    complaint     where    a

physician's certification was not timely filed.

       We agree that the trial court took too narrow a view of its

authority.         As   the    Supreme      Court   explained     in    Casinelli     v.

Manglapus, 181 N.J. 354, 356 (2004),

              we view the late filing of the physician
              certification   as   akin   to   a   discovery
              violation, with respect to which the court may
              resort to any of a full panoply of remedies,
              ranging from an order to compel production
              through dismissal, depending on the facts.

The Court continued,


                                            11                                 A-4725-16T1
           in the vast majority of cases in which an
           attorney has simply slipped up and missed the
           filing date for an otherwise acceptable
           physician certification . . . there is no
           statutory bar to continuation of the lawsuit.
           Rather,   the  physician   certification   is
           belatedly produced evidence supporting the
           otherwise cognizable claims advanced in the
           complaint. In such circumstances, we can see
           no warrant for adopting as mandatory the
           dismissal without prejudice remedy . . . .

           [Id. at 365.]

Instead,

           the court has available to it, along with
           dismissal, where warranted, discovery-type
           sanctions such as orders to compel, the award
           of reasonable expenses incurred in obtaining
           the certification, and counsel fees. See R.
           4:23-1 to -5. In each case, the court should
           assess the facts, including the willfulness
           of the violation, the ability of plaintiff to
           produce the certification, the proximity of
           trial, and prejudice to the adversary, and
           apply   the   appropriate    remedy.      That
           methodology provides judges with discretion to
           choose a response that is proportionate to the
           procedural stimulus; saves for trial the
           meritorious claims of truly injured victims;
           and allows dismissal of cases in which a
           plaintiff cannot or will not supply a
           certification or in which a plaintiff's
           conduct has irremediably prejudiced the
           defendant.

           The bedrock of our conclusion is the
           legislative purpose behind the physician
           certification requirement . . . .       [T]he
           certification serves two purposes; to provide
           evidence   that   a  plaintiff's   claim   is
           meritorious in that he or she has, in fact,
           sustained an injury that qualifies for the
           recovery of non-economic damages . . . and to

                                12                          A-4725-16T1
          thwart fraud by furnishing a legal foundation
          for a charge of perjury, should false swearing
          later be shown.      By allowing courts the
          flexibility to accept belated physician
          certifications,        under       appropriate
          circumstances, both of [the statute's] aims
          are advanced . . . .

          [Id. at 365-66.]

     It was, therefore, a mistaken exercise of discretion for the

trial court to have concluded that it could not grant plaintiff's

motion for reconsideration because the late filing of a physician's

certification mandated dismissal of plaintiff's complaint.                   The

court's decision "rested on an impermissible basis," Guillaume,

209 N.J. at 467, warranting reversal of the May 12, 2017 order,

and "truly exceptional circumstances," Rule 4:50-1(f), warrant

reconsideration      of   the   March    17,   2017    order.     The   matter,

therefore, is remanded for reconsideration of the March 17, 2017

order.

     We   do   not    offer     an   opinion    with    respect   to    whether

reinstatement of the complaint is warranted.              When reconsidering

its March 17, 2017 order, the trial court must weigh the factors

set forth in Casinelli, including whether the amended chiropractor

certification was "otherwise acceptable," despite any deficiency

claimed by defendant, and whether a less drastic remedy than

dismissal of the complaint would satisfy the statute's objectives.

In addition, we note that in Casinelli the Supreme Court left open

                                        13                              A-4725-16T1
the   question   of   whether    a    party   may    avoid   dismissal   of   its

complaint for failure to file a timely physician's certification

under   the   doctrines   of    substantial         compliance   and   equitable

estoppel.     181 N.J. at 367.       Plaintiff may advance these arguments

based on his production of a physician's expert report during

discovery.

      Reversed and remanded for further proceedings consistent with

this opinion.     We do not retain jurisdiction.




                                       14                                A-4725-16T1
