On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. UNN-L-2912-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Lihotz.
Plaintiff, Golda D. Harris, appeals from the dismissal of her legal malpractice action against defendants, Baer, Arbeiter, Ploshnick, Tanenbaum & Weiss, LLC, Steven Tanenbaum, Esq. and Gerald F. Della Sala, Esq. (collectively, the law firm). We affirm.
The lawsuit arose out of the law firm's representation of plaintiff in a workers' compensation action. Initially, plaintiff had been represented by another attorney, but in January 2002, the law firm was substituted as plaintiff's counsel. On August 12, 2003, a settlement of the compensation claim was placed on the record. Plaintiff agreed to the settlement despite the advice of defendant Della Sala, also placed on the record, that the employer's settlement offer should be rejected. Nevertheless, on August 11, 2005, two years after the compensation case was concluded, plaintiff instituted suit, pro se, against defendants, asserting that they were "negligent in not following court orders and rules," "breached their fiduciary duty to plaintiff," and were otherwise negligent in their representation. The complaint also claimed breach of contract.
After an order to provide a more definite statement, R. 4:6-4, plaintiff filed a letter captioned "Definitive Statement," elaborating on her claim of malpractice, which, over defendants' objection, the court held was sufficient compliance with the order. Thereafter, defendants filed their Answer, including a demand for an Affidavit of Merit, N.J.S.A. 2A:53A-27. Plaintiff responded that she would not be using an expert. Nevertheless, plaintiff did provide a document, dated August 11, 2005, entitled, "Proof of Merit," which only repeated her assertions of malpractice and listed defendants Della Sala and Tanenbaum as potential witnesses.
Ultimately, on March 31, 2006, defendants moved for dismissal or summary judgment and plaintiff cross-moved for summary judgment, as well as for answers to interrogatories and, by way of subpoena, all of the law firm's files on her compensation case. On April 28, 2006, the motions were heard by Judge Alcazar. During the course of the argument, plaintiff repeated that she did not have an expert and, therefore, would not be filing an Affidavit of Merit.
As a result, the judge found plaintiff's case to be procedurally defective because of her failure to comply with the Affidavit of Merit statute. He also found the case to lack "substantive merit" because plaintiff, with full knowledge of her attorney's advice, had decided to settle the compensation case. He concluded that plaintiff could not, therefore, establish "that defendants' actions were the proximate cause of her alleged damages." Because the attorney in this case had advised plaintiff not to accept the settlement, the judge distinguished Ziegelheim v. Apollo, 128 N.J. 250 (1992). On these two bases, defendants' motion to dismiss was granted.
On appeal plaintiff argues under a single point heading that:
CLAIMANT ARGUES THE REQUESTED RECORDS AND INFORMATION, WHICH HAVE A SUBSTANTIAL BEARING ON THE PREPARATION OF THE AFFIDAVIT OF MERIT, HAVE NOT BEEN RECEIVED FROM THE RESPONDENTS. A CERTIFICATION IN LIEU OF THE AFFIDAVIT IS PROVIDED TO THE RESPONDENTS PENDING THE RECEIPT OF THE REQUESTED DOCUMENTS.
Nevertheless, within that single point, plaintiff makes several assertions, including that this is a "common knowledge" case not requiring an Affidavit of Merit. See Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454 (1999).
We have reviewed plaintiff's contentions in light of the record and applicable law. We find her arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A). We agree with Judge Alcazar that plaintiff was required to provide an Affidavit of Merit in this case and failed to do so. We note that, to this day, plaintiff has never provided a certification from an expert stating what specific information would be needed to assess the merits of her claim. In that regard, plaintiff's only specific request for such information came in the form of a letter to defendants in response ...