NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3285-20 PETER CHIAROLANZIO in his capacity as Executor and Administrator of the ESTATE OF ARLENE CHIAROLANZIO and PETER CHIAROLANZIO, her husband, 1 Plaintiffs-Respondents, v. INGLEMOOR REHABILITATION AND CARE CENTER OF LIVINGSTON, LIVINGSTON CARE CENTER, LLP and STEPHEN IZZO, Defendants-Appellants, and BARBARA FYFE, DANIEL MOLES, 1 In this opinion, we refer to Arlene Chiarolanzio and her husband, Peter Chiarolanzio collectively as "plaintiffs," and Arlene Chiarolanzio individually as "plaintiff." Plaintiff died on July 26, 2019. As a result, on June 4, 2021, an amended complaint was filed to reflect that Peter Chiarolanzio, "in his capacity as Executor and Administrator," was pursuing the claims of plaintiff's estate . DAVID MANDELBAUM, ELIEZER MENDELSOHN, GERALD KORDE, HERBERT HEFLICH, JACK KAPLOWITZ, JANE LEVINE, KAREN MENDELSOHN, and RICHARD PINELES, Defendants. ________________________________ Argued December 15, 2021 – Decided January 26, 2022 Before Judges Hoffman, Geiger and Susswein. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3432-18. Thaddeus J. Hubert, IV argued the cause for appellants (Goldberg Segalla, LLP, attorneys; Thaddeus J. Hubert, IV, of counsel and on the briefs). Gary J. Grabas argued the cause for respondents (Bramnick, Rodriguez, Grabas, Arnold & Mangan, LLC, attorneys; Gary J. Grabas, on the brief). PER CURIAM By leave granted, defendants appeal from the May 28, 2021 Law Division decision, which vacated a previous order that dismissed plaintiffs' complaint with prejudice and permitted plaintiffs' husband to file an amended complaint. Finding no abuse of discretion, we affirm. A-3285-20 2 I. On May 15, 2018, plaintiffs filed a complaint against defendants alleging nursing malpractice. The complaint alleged that on June 13, 2016, plaintiff, while undergoing rehabilitation at defendant Inglemoor Rehabilitation and Care Center of Livingston, received negligent care and treatment that caused her to "sustain[] serious injuries as a result of a fall[,] including [a] severe peri- prosthetic femur fracture requiring open internal fixation." When plaintiff failed to appear for an independent medical examination (IME) on September 18, 2019, defendants filed a motion to compel plaintiff's attendance at a rescheduled IME and to pay a "no-show" fee. The motion was unopposed and granted. On November 12, 2019, the date of the rescheduled IME, plaintiff's counsel sent defendants' attorney a letter advising that "plaintiff . . . is deceased." Defendants then filed a motion to dismiss plaintiffs' complaint without prejudice on December 3, 2019. The motion went unopposed. Defendants then filed a motion to dismiss plaintiffs' complaint with prejudice on March 11, 2020. At this time, plaintiffs had not paid the IME "no-show" fee and had not moved to reinstate the complaint with plaintiff's estate as the named plaintiff. The court granted the …
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