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Levinson v. D'Alfonso & Stein

April 15, 1999


Judges Stern, Landau and Wecker.

The opinion of the court was delivered by: Landau, J.A.D.


Submitted February 18, 1999

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

Plaintiff Edward Levinson appeals pro se from a final order of April 17, 1998 granting the motion of defendants D'Alfonso & Stein, a professional corporation, Mario D'Alfonso, Esq. and his professional corporation, and Donald Stein, Esq., for dismissal of Levinson's complaint with prejudice for failure to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to 29.

That statute, effective June 29, 1995, requires that an affidavit of merit be filed within sixty days following the date of filing of the answer in "any action for damages . . . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation . . . ." N.J.S.A. 2A:53A-27. In such affidavit, an "appropriate licensed person" must indicate 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 . . . ." Ibid.

In Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998), the Supreme Court interpreted the affidavit requirement not to apply where the principal facts giving rise to the cause of action occurred prior to the statute's June 29, 1995 effective date. The Cornblatt Court was considering a client's malpractice counterclaim to her lawyer's Law Division complaint for fees. Although phrased in terms of a breach of contract, the gravamen of the counterclaim was the plaintiff lawyer's alleged failure to carry out his duties and render services in a reasonable manner by negligent delay, failure to settle, forcing a trial and increasing fees by prolonging the period of representation. Id. at 225. The Court evidently had no difficulty in considering such allegations to be embraced by the Affidavit of Merit statute. Concluding that the legally significant facts giving rise to the counterclaimant's cause of action did not arise after June 29, 1995, the Cornblatt Court reversed the order of dismissal. It also made clear, however, that dismissals under the Affidavit of Merit statute should be with prejudice, absent "extraordinary circumstances." Id. at 242.

Upon review of the record, we are satisfied that dismissal of the negligence-professional malpractice aspects of Levinson's complaint, for failure to comply with the Affidavit of Merit requirements, should be affirmed, substantially for the reasons set forth in the trial Judge's oral opinion of April 17, 1998. We affirm, too, dismissal of the fraud count for several reasons. As the motion Judge indicated, this count essentially repeats the allegations of the initial count, merely adding the label "fraud" to those allegations. The Affidavit of Merit statute, and its evident policy objective, cannot be so readily circumvented. Of equal significance, the allegations do not set forth with specificity, nor do they constitute as pleaded, satisfaction of the elements of legal or equitable fraud. See Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619 (1981); Albright v. Burns, 206 N.J. Super. 625 (App. Div. 1986).

We note, however, that respondent's brief asserts that Levinson's ". . . argument, involving the terms of an agreement, sounds more consistent with a contract claim .... which he has not alleged .... rather than a `negligent act'." In fact, the Levinson complaint makes these assertions, among others, in Count One:

3. On or about October 10, 1992, the Plaintiff entered into a contract with the Defendant, MARIO J. D'ALFONSO, ESQUIRE, a Professional Corporation to provide legal services concerning the handling of a personal injury/automobile negligence claim as against Donald King and Treadway Express involving an accident that occurred on October 8, 1992.

4. Subsequent to the contractual arrangement entered into by the parties to provide professional legal services, a number of actions were taken by Mario D'Alfonso individually, the professional corporation known as Mario D'Alfonso, Esquire, the professional corporation known as D'Alfonso and Stein, and Donald Stein, Esquire, individually which actions were in furtherance of the contract entered into between the parties and further pursuant to the professional duty owed to the Plaintiff.

5. All defendants consulted with the Plaintiff on various occasions during the course of their representation of the Plaintiff and ultimately litigation was instituted on his behalf. During the course of that litigation, a number of Discussions occurred between the parties involving potential settlement of the case and at no time did the Plaintiff ever authorize any of the named Defendants to settle the case on his behalf at an agreed sum.

6. At some point in time, the Defendant, DONALD STEIN on behalf of the Plaintiff, EDWARD LEVINSON advised the attorney for Treadway Express and Donald King that the case would be settled in the sum of $42,500.00. This communication was made to the Defendant's attorney, Tracy Burnley, Esquire without any authority from the Plaintiff and in direct contravention of the Plaintiff's specific instructions.

9. The various Defendants, at all times failed to act in a professional manner towards the Plaintiff, breached their contractual and professional duty owed to the Plaintiff in their capacity as attorneys for the Plaintiff and otherwise acted in a professionally ...

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