BRUCE AMPOLSKY VS. IRA J. ZOHN, DMD (L-3963-18, MONMOUTH COUNTY…

                                NOT FOR PUBLICATION WITHOUT THE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-0914-19T1

BRUCE AMPOLSKY,

          Plaintiff-Appellant,

v.

IRA J. ZOHN, DMD, and
ADVANCED ENDODONIC
ASSOCIATES, PA,

     Defendants-Respondents.
__________________________

                   Argued October 26, 2020 – Decided November 13, 2020

                   Before Judges Fasciale and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Docket No. L-3963-18.

                   Ara R. Avrigian argued the cause for appellant (Saltz
                   Mongeluzzi Barrett & Bendesky, P.C., attorneys;
                   Robert J. Mongeluzzi, Ara R. Avrigian, and K. Andrew
                   Heinold, on the briefs).

                   Andrew Gimigliano argued the cause for respondents
                   (O'Toole Scrivo, LLC, attorneys; James DiGiulio and
                   Andrew Gimigliano, of counsel and on the brief).
PER CURIAM

      Plaintiff appeals from two orders entered by different judges who rendered

oral decisions dismissing his pleadings against an endodontist, Ira J. Zohn, DMD

(Zohn) and a dental office, Advanced Endodontic Associates (AEA)

(collectively defendants): a July 10, 2019 order granting defendants' motion to

dismiss his second-amended complaint without prejudice under Rule 4:6-2(e)

and the doctrine of judicial estoppel; and a September 16, 2019 order dismissing

his third-amended complaint under Rule 4:6-2(e) with prejudice. The doctrine

of judicial estoppel does not apply, and plaintiff pled sufficient facts to survive

Rule 4:6-2(e). We therefore reverse.

      In November 2018, plaintiff filed his complaint against defendants

alleging negligence, assault, and battery. The complaint alleges that from 2013

to 2017, Zohn, while working as an employee of AEA, provided nitrous oxide

to plaintiff in regular intervals beyond what was medically necessary for any

dental treatment, or for no medical purpose whatsoever. He then filed his first-

amended complaint adding employees of AEA as additional parties.

      Defendants responded to plaintiff's first amended complaint by filing a

motion under Rule 4:6-2(e). A judge granted defendants' motion to dismiss




                                                                      A-0914-19T1



                                        2
without prejudice. Plaintiff subsequently filed his second-amended complaint,

and eventually a third-amended complaint.

      In his second-amended complaint, plaintiff made new allegations. Of

course, on a Rule 4:6-2(e) motion, we must give plaintiff the benefit of all

reasonable factual inferences when evaluating whether he pleaded sufficient

facts to state a cause of action. Printing Mart-Morristown v. Sharp Elecs. Corp.,

116 N.J. 739

, 746 (1989). With that in mind, plaintiff alleged that from 2007 to

2009 plaintiff received dental care from defendants, and from 2013 to 2017 a

doctor-patient relationship continued, with plaintiff receiving further treatment

from defendants. Plaintiff alleged that during his visits to AEA from 2013 to

2017, Zohn and other AEA employees—essentially deviating from accepted

standards of care—administered nitrous oxide to him "far in excess of any

amounts necessary for the dental treatments they provided." Plaintiff allege d

that defendants' conduct proximately caused his addiction to nitrous oxide, and

that defendants "knew or should have known that providing and/or

administering nitrous oxide for purposes other than for assistance in dental

procedures violated their duties and obligations."      Plaintiff then received

medical treatment related to his pain and suffering.




                                                                    A-0914-19T1



                                       3
      Defendants responded to plaintiff's second-amended complaint by filing a

motion to dismiss under Rule 4:6-2(e). The judge granted defendants' motion

dismissing the second-amended complaint without prejudice, and judicially

estopped plaintiff from bringing a medical negligence claim against defendants.

The judge found that no doctor-patient relationship existed, and "just because

there was a relationship or an alleged [doctor-patient] relationship between 2007

and 2009, that does not mean that there was a relationship in 2013 to 2017."

Even if a doctor-patient relationship existed, the judge concluded that "the

complaint and prior arguments by counsel show that receiving nitrous oxide in

this case was not for treatment."

      Plaintiff then filed his third-amended complaint, which prompted another

Rule 4:6-2(e) motion. In granting that motion, the judge noted that while

plaintiff was judicially estopped from pleading a medical negligence claim, it

appeared that plaintiff was attempting to "hold [Zohn] to a higher standard of

care than a reasonably prudent person because of [his] education and/or

background." He also explained that it would be difficult for "anyone [to] be

able to determine what interaction, circumstance, or series of events creates a

foreseeable risk of harm" in this scenario between plaintiff and defendants.

      On appeal, plaintiff raises the following points for this court's

                                                                      A-0914-19T1



                                        4
consideration:

            POINT I

            THE [JUDGES] IMPROPERLY APPLIED THE
            JUDICIAL ESTOPPEL DOCTRINE AS THE NEW
            JERSEY PLEADING RULES ALLOW A PLAINTIFF
            TO PLEAD INCONSISTENCIES AND IN THE
            INSTANT MATTER . . . PLAINTIFF PLED FACTS
            ESTABLISHING      A       PATIENT-DENTIST
            RELATIONSHIP    SINCE      THE     INITIAL
            COMPLAINT[.]

            POINT II

            PLAINTIFF ALLEGED A VIABLE CLAIM FOR
            MEDICAL NEGLIGENCE AGAINST . . . ZOHN,
            [AEA] AND THEIR EMPLOYEES[.]

            POINT III

            ASSUMING ARGUENDO THAT NO PATIENT-
            DENTIST RELATIONSHIP EXISTS, . . . ZOHN
            STILL HAS A DUTY TO . . . PLAINTIFF AS THOSE
            IN    POSSESSION,      RESPONSIBLE       AND
            ADMINISTERING THE NITROUS OXIDE[.]

                                        I.

      We begin by addressing plaintiff's first contention that the judges abused

their discretion by erroneously applying the judicial estoppel doctrine to dismiss

his medical negligence claim. Plaintiff argues that judicial estoppel does not

preclude pleading facts in the alternative as it only applies to a party that

successfully asserted a position in a prior proceeding. We conclude that the
                                                                     A-0914-19T1



                                        5
judges abused their discretion by applying judicial estoppel.             See In re

Declaratory Judgment Actions Filed by Various Municipalities, Cty. Of Ocean ,

446 N.J. Super. 259

, 291 (App. Div. 2016) (stating that we review a trial court's

decision to invoke judicial estoppel "using an abuse of discretion standard") .

      "The judicial estoppel doctrine is an extraordinary remedy which should

be invoked only 'when a party's inconsistent behavior will otherwise result in a

miscarriage of justice.'" Hanisko v. Billy Casper Gold Management, Inc., 

437 N.J. Super. 349

, 356 (App. Div. 2014) (internal citation and quotation marks

omitted) (quoting Kimball Intern. Inc. v. Northfield Metal Prods., 334 N.J.

Super. 596, 606 (App. Div. 2000)). "When a party successfully asserts a position

in a prior legal proceeding, that party cannot assert a contrary position in

subsequent litigation out of the same events." Kress v. La Villa, 

335 N.J. Super. 400

, 412 (App. Div. 2000). "[T]o be estopped [a party must] have convinced

the court to accept its position in the earlier litigation. A party is not bound to a

position it unsuccessfully maintained[.]" 

Kimball, 334 N.J. Super. at 606-07

(quoting In re Cassidy, 

892 F.2d 637

, 641 (7th Cir. 1990)).

      Here, there is no prior or subsequent litigation. Rather, it is one case

involving several dismissals without prejudice, subject to the re-filing of

pleadings. Because plaintiff did not successfully assert a position in a prior

                                                                        A-0914-19T1



                                         6
litigation and proceed to assert a contrary position in a subsequent litigation —

as is required for the judge to apply judicial estoppel—the doctrine is wholly

inapplicable.

                                        II.

       Applying a de novo review, we agree with plaintiff's second contention

that he sufficiently pled a medical negligence claim against defendants. See

Wrenden v. Township of Lafayette, 

436 N.J. Super. 117

, 124 (App. Div. 2014).

       "The court's review 'is limited to examining the legal sufficiency of the

facts alleged on the face of the complaint[,]' and, in determining whether

dismissal under Rule 4:6-2(e) is warranted, the court should not concern itself

with plaintiff's ability to prove their allegations."

Id. at 124-25

(alteration and

emphasis in original) (quoting Printing 

Mart-Morristown, 116 N.J. at 746

). The

court "must assume the truthfulness of the allegations contained in plaintiff['s]

complaint[], giving plaintiff[] the benefit of all reasonable factual inferences

that those allegations support." Edwards v. Prudential Prop. & Cas. Co., 

357 N.J. Super. 196

, 202 (App. Div. 2003). A plaintiff must plead "facts and . . .

some detail of the cause of action[,]" something more than conclusory

allegations to support their complaint. Printing 

Mart-Morristown, 116 N.J. at 768

.    "The examination of a complaint's allegations of fact required by the

                                                                      A-0914-19T1



                                        7
aforestated principles should be one that is at once painstaking and undertaken

with a generous and hospitable approach."

Id. at 746.

A motion to dismiss

under Rule 4:6-2(e) should be "approach[ed] with great caution" and should only

be granted in "the rarest of instances."

Id. at 771-72.

      A negligence cause of action requires that a plaintiff establish four

elements: "(1) a duty of care, (2) a breach of that duty, (3) actual and proximate

causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Utility

Co., 

212 N.J. 576

, 594 (2013). A medical negligence cause of action must

establish "the applicable standard of care owed by a physician to a patient, a

deviation from that standard of care, and that the deviation proximately caused

the injuries[.]" Verdicchio v. Ricca, 

179 N.J. 1

, 23 (2004) (internal citations

omitted).   A medical negligence claim must be "based on the improper

performance of a professional service that deviated from the acceptable standard

of care." Zuidema v. Pedicano, 

373 N.J. Super. 135

, 145 (App. Div. 2004).

      In the present case, defendants rely substantially on Zuidema, where the

court held that a doctor's sexual assault of his patient did not fall within a

medical negligence claim because it was "neither related to nor necessary for

any actual medical services [the defendant] may have rendered."

Id. at 145.

The

defendant's conduct was "independent of any professional services [the

                                                                     A-0914-19T1



                                        8
defendant] rendered and unnecessary to it."

Id. at 146.

The court explained that

"[a] doctor's duty to refrain from . . . intentional act[s], does not generally give

rise to a medical malpractice action."

Ibid. Here, plaintiff alleged

he received treatment from defendants, and that

defendants "were charged with the professional responsibility of rendering

proper medical care and treatment to [p]laintiff[.]"        Plaintiff pleaded that

defendants breached that care by administering nitrous oxide "far in excess of

any amounts necessary for the dental treatment they provided." Plaintiff's

pleading that the defendants "administer[ed] nitrous oxide for purposes other

than for assistance in dental procedures" does not preclude the possibility that

defendants administered nitrous oxide both when it was for the purpose of

assistance in dental procedures and when it was not.          Given these factual

inferences, Zuidema is inapplicable because the actions here allegedly involved

medical treatment and were not "independent of any professional services [the

defendant] rendered and unnecessary to [them]."

Id. at 146.

Finally, plaintiff

pled that he suffered damages as a result of the maladministration of nitrous

oxide during treatments. These pleadings, when making all factual inferences

in favor of the plaintiff, establish a claim upon which relief may be granted.




                                                                       A-0914-19T1



                                         9
      Because we conclude the judges abused their discretion by applying the

judicial estoppel doctrine and plaintiff sufficiently pleaded a medical negligence

claim, we need not reach plaintiff's third argument.

      Reversed and remanded. We do not retain jurisdiction.




                                                                     A-0914-19T1



                                       10
Share Review:
Yes it is. Based on the user review published on NO-SCAM.com, it is strongly advised to avoid BRUCE AMPOLSKY VS. IRA J. ZOHN, DMD (L-3963-18, MONMOUTH COUNTY AND STATEWIDE) in any dealing and transaction.
Not really. In spite of the review published here, there has been no response from BRUCE AMPOLSKY VS. IRA J. ZOHN, DMD (L-3963-18, MONMOUTH COUNTY AND STATEWIDE). Lack of accountability is a major factor in determining trust.
Because unlike No-Scam.com, other websites get paid to remove negative reviews and replace them with fake positive ones.
BRUCE AMPOLSKY VS. IRA J. ZOHN, DMD (L-3963-18, MONMOUTH COUNTY AND STATEWIDE) is rated 1 out of 5 based on the reviews submitted by our users and is marked as POOR.
Never trust websites which offer a shady ‘advocacy package’ to businesses. Search for relevant reviews on Ripoff Report and Pissed Consumer to see more unbiased reviews.
The above review and comments against BRUCE AMPOLSKY VS. IRA J. ZOHN, DMD (L-3963-18, MONMOUTH COUNTY AND STATEWIDE) were submitted by NO-SCAM.com user(s) and have been published as-is. NO-SCAM.com does not edit, alter or remove content published by it’s users. There’s no amount of money a business can pay to manipulate their reviews or complaints and NO-SCAM.com will NOT entertain any request to remove the review on BRUCE AMPOLSKY VS. IRA J. ZOHN, DMD (L-3963-18, MONMOUTH COUNTY AND STATEWIDE) at any cost whatsoever.
>