Miscellaneous Professional Liability

The appellate division grappled with the meaning of the Affidavit of Merit (AOM) statute in light of a filing that took place nine months after the case had been dismissed and 16 months after the defendant first filed its answer to the original complaint.

Under normal circumstances, an AOM supporting the claims against a licensed professional must be served within 60 days of the date the professional first files a responsive pleading. That time frame, per the statute’s language, can be extended for good cause to 120 days, from the date when the licensed professional files its answer. This extension is regardless of whether the pleadings are subsequently amended to name other defendants or assert additional claims.

Here, the defendant provided a certification attesting that he was not involved in the construction phase of the project (and in particular the construction of the staircase on which the plaintiff fell). Based on the representations and the certification, the plaintiff voluntarily dismissed the claims against the defendant. At that time, the plaintiff had not filed an AOM. Later discovery revealed that, contrary to his certification, the defendant had been involved in the construction and design of the stairs. As such, the plaintiff moved to reinstate the complaint. The defendant cross-moved to dismiss based on lack of an AOM, which it had affirmatively plead as a defense in it original pleading.

The trial court reinstated the complaint, ruling that, based on analysis of several federal cases, “the affidavit of merit does not come into play until the pleadings are [all] settled.” Here, the trial court reasoned, all pleadings were not settled because the defendant had not yet answered the most recent amended complaint. As such, the trial court granted the motion to reinstate. The defendant appealed.

The Appellate Division granted leave for the appeal and upheld the lower court’s ruling, but on a different basis. First, it reasoned that the statute “was designed as a tort reform measure and requires a plaintiff in a malpractice case to make a threshold showing that the claims asserted are meritorious…” and that “[the AOM Statue] is designed to weed out frivolous lawsuits at an early stage and to allow meritorious cases to go forward.” More insightfully, the jurists noted:

…often-protracted time frame it may have its malpractice insurance premiums raised or have to expend substantial funds on counsel fees out of its policy deductible for participating in the litigation. This is especially of concern in a construction accident case, in which months of discovery typically occur before all subcontractors and other potentially liable parties are identified and the pleadings are repeatedly amended on an ongoing basis. The public policies that underlie the AOM statute call for prompt verification that the malpractice claims have been deemed by an expert in the field to have merit.

Therefore, the judges held that, regardless of pleadings that may be amended after initial pleadings to name other defendants or assert additional claims, the AOM statute requires the affidavit to be served within 60 days (extendable for good cause to a maximum of 120 days) of the licensed professional’s answer. However, that deadline is not draconian. It is subject to exceptions for (1) substantial compliance or (2) extraordinary circumstances. Here, the Appellate Division held that extraordinary circumstances existed due to the representations of the defendant’s counsel, the certification provided by the professional, and the newly discovered evidence of the defendant’s role which contradicted both of the aforementioned items.

^{Case Law Alerts, 3rd Quarter, July 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}