Opinion
DOCKET NO. A-3377-15T3
06-24-2016
BZSAZU REALTY, LLC, a New Jersey Limited Liability Company; and MUHAMMED FAROOQ, Plaintiffs-Respondents, v. ANJUM RAZI; UZMA RAZI; FOUR SEASONS SERVICES, LLC; FOUR SEASONS MANAGEMENT CO.; LEGACY REALTY GROUP, LLC; PLATINUM MANAGEMENT AND CONSULTING, INC., Defendants, and MATTHEW C. JOHNSTON and LAW OFFICES OF MATTHEW C. JOHNSTON, ESQ., LLC, a New Jersey Limited Liability Company, Defendants-Appellants, and ANJUM RAZI, Third-Party Plaintiff, v. BILAL FAROOQ, Third-Party Defendant.
Kevin M. Hahn argued the cause for appellants (Mulvaney & Hahn, attorneys; Mr. Hahn, on the brief). Ronald L. Davison argued the cause for respondents (Starr Gern Davison & Rubin, attorneys; Mr. Davison, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4699-15. Kevin M. Hahn argued the cause for appellants (Mulvaney & Hahn, attorneys; Mr. Hahn, on the brief). Ronald L. Davison argued the cause for respondents (Starr Gern Davison & Rubin, attorneys; Mr. Davison, on the brief). PER CURIAM
Defendants Matthew C. Johnston and Law Offices of Matthew C. Johnston, LLC (Johnston defendants) appeal from the denial of their motion to dismiss the legal malpractice count of the complaint against them on grounds that the affidavit of merit filed by plaintiffs Bzsazu Realty, LLC and Muhammed Farooq was not timely filed, as required by N.J.S.A. 2A:53A-27.
I.
This interlocutory appeal arises from a thirteen-count complaint that sought monetary relief against a number of defendants including the Johnston defendants, who were retained as counsel for plaintiffs in connection with a series of real estate transactions. Count Twelve of the complaint alleged a legal malpractice claim against the Johnston defendants.
The Johnston defendants filed their answer to the complaint on October 8, 2015 after plaintiffs granted them two extensions of time. This filing date triggered a sixty-day timeframe for plaintiffs to file their required affidavit of merit by December 7, 2015 subject to a potential court-approved sixty-day extension. See, N.J.S.A. 2A:53A-27. One day earlier on October 7, 2015, the Johnston defendants served an unfiled copy of the answer on plaintiffs.
In his certification in opposition to the Johnston defendants' motion to dismiss the malpractice count, plaintiffs' counsel acknowledged receiving a copy of the Johnston defendants' answer that was not stamped with the file date. He thereafter checked the Judiciary's Automated Case Management System (ACMS) and discovered there that the court was reporting October 22, 2015 as the filing date for defendants' answer. Relying on that date, plaintiffs filed and served their affidavit of merit on December 21, 2015. That date was less than sixty-days from what they believed was the answer's filed date per ACMS, but was seventy-four days from October 8, 2015, the date the Johnston defendants maintain their answer was actually filed.
The court's ACMS website includes an express disclaimer that the computerized records information is "for informational purposes only." The court makes "no warranties, either express or implied, regarding its accuracy, reliability, currency, completeness, or suitability for any particular purpose."
When plaintiffs did not file a "good cause" motion asking permission for their "late" affidavit of merit filing, the Johnston defendants filed a motion on February 17, 2016 to dismiss the malpractice count of the complaint, apparently timed so that plaintiffs' time to ask for an extension had expired. The Johnston defendants contended not only was the affidavit filed out of time, but plaintiffs had not timely requested permission to extend. There was no prior communication between counsel on this issue. For reasons that are unclear, no Ferreira conference had been requested or scheduled.
See Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, 150-55 (2003) (requiring an early case management conference for malpractice cases to identify issues, including problems with affidavit of merit compliance). --------
Plaintiffs' response to the motion to dismiss made clear they had relied on the filing date reflected in ACMS in determining when to file their affidavit of merit, because they did not have a copy of the answer stamped with the filing date and claimed they had no other way to determine its filing date.
On March 7, 2016, Judge James S. Rothschild, Jr. denied defendants' motion to dismiss, finding plaintiffs' affidavit was "timely filed" and substantively "more complete" than in most cases. We granted the application for leave to appeal by the Johnston defendants, who contend the trial court erred in finding the affidavit of merit was timely filed.
II.
We affirm the trial court's decision to deny defendants' motion to dismiss based on equitable principles, because that result accomplishes the essential goal of the affidavit of merit statute, N.J.S.A. 2A:53A-26 to -29, to preserve meritorious claims. Our review is de novo, applying the same legal standard as the trial court. NL Industries Inc. v. State, 442 N.J. Super. 403, 405 (App. Div. 2015).
In personal injury actions alleging professional malpractice, a "plaintiff must show that the complaint is meritorious by obtaining an affidavit [of merit] from an appropriate, licensed expert attesting to the 'reasonable probability' of professional negligence." Ferreira, supra, 178 N.J. at 150 (quoting N.J.S.A. 2A:53A-27). The affidavit of merit is to be filed no more than sixty days following the date of filing of the answer to the complaint. N.J.S.A. 2A:53A-27. A court may grant an extension, based on good cause, of "no more than one additional period, not to exceed 60 days[.]" Ibid.
The affidavit requirement is intended "to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." Hubbard v. Reed, 168 N.J. 387, 395 (2001). Where the affidavit is not served within these timeframes, the statute "requires a dismissal of the complaint with prejudice." Ferreira, supra, 178 N.J. at 146-47 (citing Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242 (1998)).
A number of exceptions have been developed to "temper the draconian results of an inflexible application of the standard," Ferreira, supra, 178 N.J. at 151, while preserving the statute's intent to "flush out insubstantial and meritless claims that . . . [detract] from the many legitimate claims[.]" Id. at 154.
In Ferreira, the Court cited principles of equity for its decision to reverse the dismissal of a malpractice complaint. In that case, counsel had an affidavit of merit "in hand" within the statutory 120-day period, but failed to serve and file it. When alerted to the problem, counsel immediately faxed the affidavit to his adversary who followed up by filing a motion to dismiss the plaintiff's malpractice complaint. In reversing a ruling that had dismissed plaintiff's complaint, the Court fashioned a two-part rule.
[W]here the plaintiff has in hand an affidavit within the 120-day statutory period and serves the affidavit on defense counsel outside that time frame but before defense counsel files a motion to dismiss, the defendant shall not be permitted to file
such a motion based on the late arrival of the affidavit.Contrariwise, "[i]f defense counsel files a motion to dismiss after the 120-day deadline and before plaintiff has forwarded the affidavit, the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance and extraordinary circumstances do not apply." Ibid.
[Ibid.]
These equitable principles guide our analysis of this appeal. Plaintiffs' attorney had in hand an affidavit of merit within 120 days from when the answer was filed. Although we do not condemn defendants for minding the deadlines of the affidavit of merit statute, the affidavit was served within 120 days and before defendants filed to dismiss the complaint. Under Ferreira, the trial court correctly concluded that dismissal of the complaint was not appropriate.
Although we need not address other exceptions that have developed to temper factual inequities arising under the affidavit of merit statute because of the applicability of Ferreira to this case, it bears mention that the trial court's ruling also was correct because the filing substantially complied with the affidavit of merit statute. To establish this basis for relief, plaintiff must show that "a series of steps were taken to comply with the statute; general compliance with the purpose of the statute; the defendant had reasonable notice of the plaintiff's claim; a reasonable explanation for plaintiff's failure to strictly comply with the statute; and lack of prejudice to the defendant." Stoecker v. Echevarria, 408 N.J. Super. 597, 612 (App. Div.) (citing Ferreira, supra, 178 N.J. at 151), certif. denied, 200 N.J. 549 (2009); see also Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 353-54 (2001).
These standards were met because plaintiffs' counsel took steps to comply with the statute by serving and filing the affidavit on December 21, 2015. The existence of the affidavit signified that an individual certified as to the merits of the malpractice case; thus, this was not one of those facially frivolous cases the affidavit of merit statute was designed to weed out. Defendants had reasonable notice of the affidavit because they acknowledged its receipt in December which was considerably before the second sixty-day period had expired. There was a reasonable explanation for the delay, even though plaintiffs' counsel should have made a greater effort to confirm the answer's filing date because of the ACMS disclaimer and because of his receipt of an unfiled copy of the answer before October 22, which was a clue the ACMS filing date should have been confirmed. Defendants have not alleged any prejudice by the timing of their receipt of the affidavit. Discovery proceeded despite this issue. Defendants had the affidavit in hand with an ample and fair opportunity to respond and defend.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION