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Cornblatt v. Barow

July 7, 1997


On appeal from the Superior Court of New Jersey, Law Division, Ocean County.

As Amended July 23, 1997.

Before Judges Petrella and Kimmelman. The opinion of the court was delivered by Kimmelman, J.A.D.

The opinion of the court was delivered by: Kimmelman

The opinion of the court was delivered by


At issue on this appeal is the interpretation of and effect to be given to recently enacted legislation requiring the filing of an affidavit of merit in order to maintain a cause of action against certain licensed professional persons for malpractice or negligence. See N.J.S.A. 2A:53A-26 to -29 (the "statute"). The statute was signed into law by the Governor on June 29, 1995, and became effective on that date as part of a "tort reform" package of five bills. *fn1

Factually, it appears that plaintiff, an attorney, had represented defendant in a contested matrimonial action which required a lengthy trial. When plaintiff rendered his bill for legal services, defendant objected and requested that her fee dispute with plaintiff be arbitrated in accordance with the provisions of R. 1:20A. Such hearings were held and, on October 11, 1995, the District Fee Arbitration Committee (Committee) issued its determination that plaintiff was entitled to the total reasonable charge of $212,529.22, less the sum of $40,817.60 previously paid by defendant, leaving a net balance due plaintiff of $171,711.62. Defendant was advised by the Committee that the amount awarded was to be paid within thirty days and if not so paid that judgment in accordance with R. 1:20A-3 may be entered against her.

Defendant then lodged an appeal from the decision of the Committee with the Disciplinary Review Board of the Supreme Court (D.R.B.). The determination of the Committee was affirmed by the D.R.B. and defendant's appeal was dismissed. See R. 1:20A-3(c); R. 1:20-15(l).

When the fee award was not paid within thirty days, plaintiff filed a complaint in the Law Division against defendant to reduce to judgment the sum of $171,711.62. Defendant answered and filed a counterclaim alleging that plaintiff had breached his contract with defendant by not performing his services in a timely fashion. It was alleged that his neglectful breach caused the underlying matrimonial matter to go to trial rather than to settle, thereby forcing defendant to incur additional costs and attorney's fees. Although not described as a cause of action for malpractice in defendant's counterclaim, the allegations contained all the requisite elements of a claim of legal malpractice. Albright v. Burns, 206 N.J. Super. 625, 632, 503 A.2d 386 (App. Div. 1986).

Plaintiff filed his answer to the counterclaim in which he demanded that defendant submit within sixty days the affidavit of merit required by the statute. A case management order, entered on February 13, 1996, required defendant to submit the affidavit of merit by April 5, 1996. The trial Judge later acknowledged the date should have been April 10, 1996.

Defendant, in effect, was the plaintiff on the malpractice counterclaim. The statute requires that such plaintiff file the affidavit of merit within sixty days of defendant's answer. N.J.S.A. 2A:53A-27 provides:

Affidavit required in certain actions against licensed persons

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause. The person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

When no affidavit of merit had been provided by April 24, 1996, some two weeks after the statutory sixty-day deadline, plaintiff moved to dismiss defendant's counterclaim for failure to comply with the statute and moved for summary judgment on his complaint. On May 1, 1996, defendant cross-moved, after the expiration of the sixty-day statutory period, for the court to grant an additional period of sixty days. Alternatively, defendant claimed that her legal malpractice counterclaim did not fall within the statutory definitions of malpractice causes of action. On May 8, 1996, the trial court denied defendant's request for a sixty-day extension finding that there was no justification presented for an extension beyond the initial sixty-day period. The court then dismissed with prejudice defendant's counterclaim for failure to provide an ...

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