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Medeiros v. O'Donnell & Naccarato

February 11, 2002

KEVIN R. MEDEIROS, PLAINTIFF-APPELLANT
v.
O'DONNELL & NACCARATO, INC., DEFENDANT-RESPONDENT, AND CIRCLE F URBAN RENEWAL PARTNERSHIP, CONSTANZA CONTRACTING COMPANY, FRANK X. MOYA, ARCHITECT, STEVEN COHEN, ARCHITECT, ROBERT BUDA ASSOCIATES AND BRR, INC., DEFENDANTS



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L- 2396-98.

Before Judges Havey, Braithwaite and Weissbard.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 14, 2002

This is an appeal that requires us to determine whether the Affidavit of Merit Statute ("AMS" or "statute"), specifically, N.J.S.A. 2A:53A-27, permits a plaintiff to serve all licensed defendants with an affidavit that does not identify the licensed person by name, but by occupation only. The motion judge concluded that "each defendant should individually receive an affidavit of merit." Because plaintiff failed to provide defendant O'Donnell & Naccarato, Inc. ("O'Donnell & Naccarato"), an "individual affidavit of merit concerning whether [its] work fell outside the acceptable professional standard," the judge dismissed plaintiff's complaint against O'Donnell & Naccarato.

Plaintiff contends, on appeal, that the motion judge erred in dismissing his complaint because the affidavit complied with the statute, and "if the affidavit did not fully comply, the doctrine of substantial compliance dictates a reversal of the order dismissing his claims." We agree with plaintiff and now reverse.

For purposes of this appeal, the facts are not in dispute. O'Donnell & Naccarato was retained in 1995 to prepare engineering plans for the restoration of buildings owned by defendant Circle F Urban Renewal Partnership ("Circle"). As part of this project, Circle contracted with defendant Costanza Contracting Company ("Costanza") to do various work, including masonry. Costanza subcontracted with plaintiff's employer, Roman, Inc., to do the masonry work.

On or about August 1, 1996, plaintiff Kevin R. Medeiros, was working at the project site. While on a parapet, forty feet above ground, he fell, sustaining serious injuries. On June 29, 1998, plaintiff filed suit against defendants on account of his injuries. He asserted that defendants, including O'Donnell & Naccarato, "violated standards established by OSHA, ANSI, The Associated General Contractors of America and as set forth in other architectural and engineering codes pertaining to survey, design, study and evaluation of the plans and structure prior to allowance of workmen in or upon the structure." On July 23, 1998, plaintiff filed an amended complaint, naming Robert Buda Associates and BRR, Inc. as defendants.

Plaintiff had prepared, on July 28, 1998, an affidavit of merit by Horace Albert Reeves, Jr., who is both a licensed engineer and a licensed architect. The affidavit, which was captioned, "Affidavit of Merit . . . as to defendant architects and engineers" provided in relevant part the following:

I have reviewed the [c]omplaint and certain other documents and photographs related to the civil action between the Plaintiff, Kevin R. Medeiros, and the Defendants, including Robert Buda Associates and BRR, Inc., both of whom will be added to the list of defendants by an amended complaint.

I hereby affirm that I believe there exists a reasonable probability that the care, skill and knowledge exercised and exhibited in the practice or work that is the subject of the Complaint, fell outside the acceptable professional or occupational standards or practices of an architect and engineer as to the defendant architects and engineers, respectively.

The affidavit was served timely on all defendants.

On June 4, 1999, O'Donnell & Naccarato, along with the other licensed defendants, moved to dismiss plaintiff's complaint for failure to comply with the AMS, arguing that the affidavit supplied by plaintiff did not satisfy the requirements of N.J.S.A. 2A:53A- 27. Plaintiff and Costanza opposed the motions.

The motion judge granted defendants' applications and dismissed plaintiff's complaint because each defendant did not "individually receive an affidavit of merit." On July 20, 1999, plaintiff moved for reconsideration or, in the alternative, for "leave to file an amended affidavit of merit for each defendant." Circle joined in plaintiff's motion. The motion was opposed. The motion judge ...


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