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Tunia v. St. Francis Hospital

October 10, 2003

LAURA TUNIA AND REGINALD W. TUNIA, JR., PLAINTIFFS-APPELLANTS,
v.
ST. FRANCIS HOSPITAL, DEFENDANT, JOHN B. DEL MONTE, D.P.M., DEFENDANT-RESPONDENT, AND JOHN DOES 1-5, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, L-9258-99.

Before Judges Wefing, Collester and Fuentes.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 22, 2003

Plaintiffs appeal from a trial court order granting the motion of defendant Del Monte to dismiss plaintiffs' complaint for failure to satisfy the requirements of the Affidavit of Merit statute, N.J.S.A. 2A:53A-27. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In 1997, defendant Del Monte performed two podiatric surgeries upon plaintiff Laura Tunia.*fn1 She experienced problems following the surgeries and eventually came under the care of another podiatric physician. In light of her experiences with defendant Del Monte, plaintiff retained counsel who filed a complaint on her behalf on September 8, 1999. Del Monte filed his answer on December 29, 1999.

Under N.J.S.A. 2A:53A-27, plaintiffs had sixty days from the filing of Del Monte's answer to provide an affidavit of merit. The statute requires that the affidavit be executed by a licensed individual who has"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."

For reasons that are not apparent from the record, plaintiffs decided to retain new counsel prior to providing an affidavit of merit. A certain delay was experienced in connection with the change in counsel and the sixty-day period expired, and Del Monte filed a motion to dismiss the complaint. While that motion was pending, plaintiffs proffered a document captioned"Certificate of Merit." We do not consider it necessary to recite the detail of the somewhat chowdered procedural history of this matter after Del Monte filed his motion and plaintiffs put forth the certificate. The parties have argued before us various questions of timeliness, as they did to the trial court. In our view, timeliness is immaterial for we are satisfied that the"Certificate of Merit" was fatally defective. The substantive portion of this Certificate of Merit provides as follows:

Farid Hakimi, D.P.M. upon his oath deposes and says:

1. I am a licensed physician in podiatric medicine in the State of New Jersey. I have no financial interest in the outcome of this case, which I have reviewed.

2. Based on the record which I have reviewed, there is a reasonable probability that the care, skill and/or knowledge exercised in the treatment of John B. Del Monte, D.P.M. St. Francis Hospital, and John Does 1-5 upon the Plaintiff Laura Tunia fell outside professional treatment standards.

Farid Hakimi, D.P.M.

State of New Jersey, County of ...


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