On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4943-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges Fisher and C.L. Miniman.
Defendants Dresdner Robin Environmental Management, Inc., and Jeffrey Reeves (hereafter collectively "Dresdner Robin") have moved for leave to appeal: (1) the trial court's order of October 24, 2008, which denied their motion to dismiss the complaint because of the failure of plaintiff Pan-African Chamber of Commerce & Industry, Inc. (plaintiff) to timely serve an affidavit of merit pursuant to N.J.S.A. 2A:53A-27; and (2) the trial court's order of December 5, 2008, which denied Dresdner Robin's motion for reconsideration. We hereby grant the motion for leave to appeal and, having exercised our discretion to rule upon the merits, R. 2:11-2, we reverse the orders under review.
The record reveals that plaintiff commenced this action on February 25, 2008 against defendants alleging damages sustained to its building in Asbury Park during a construction project on an adjacent property. The complaint asserts that Dresdner Robin committed professional negligence. Dresdner Robin filed an answer to the complaint on June 2, 2008. When plaintiff failed to serve an affidavit of merit within 120 days of that date, Dresdner Robin and other defendants similarly situated moved for dismissal pursuant to N.J.S.A. 2A:53A-27.
In opposition, plaintiff asserted that an expert was not required because liability could be established through common knowledge and that the statutory time bar had been tolled.*fn1 At oral argument, counsel for plaintiff argued, without benefit of a supporting sworn statement, that an affidavit of merit was not timely supplied because his client did not have the funds necessary to secure it. He also argued his client had or was about to obtain the necessary funds and that an affidavit of merit could be provided in one week. Plaintiff's counsel also argued his client had substantially complied with the statute's requirements because he had provided two unsworn letters from his expert in opposition to the motion to dismiss and that these letters revealed the bases for plaintiff's professional negligence claims.*fn2
The trial judge denied all defendants' motions, including Dresdner Robin's. His oral decision, which we quote in part, did not dispose of plaintiff's argument of substantial compliance but instead rested only on plaintiff's alleged lack of funds as constituting an exceptional circumstance:
Now, is this substantial compliance or extraordinary circumstance? Either one is sufficient for the plaintiff to defeat this motion. I'm not sure if it's substantial compliance. Because the report is there and basically says, you know, the report's going to be turned into an affidavit. Is it substantial, I don't know.
But I do know there are extraordinary circumstances here. No money is an extraordinary circumstance. It's that simple. I'm a practical guy. The engineers gave these reports on the cuff. Eventually they say, hey, we haven't been paid yet. I mean, that's America. We haven't been paid. We're not going any further, we're not giving your affidavit of merit till we get paid. You can't fault them for that. . . .
Is it beyond the 120 days? Sure it is. But . . . the reason he didn't have it sooner is because they didn't have the money to pay for it. I find that's an extraordinary circumstance. And therefore, 120 days doesn't apply. So the motion is denied.
Plaintiff filed an affidavit of merit a week later -- 149 days after Dresdner Robin filed an answer to the complaint.
Dresdner Robin moved for reconsideration. This motion was also denied. In ruling, the trial judge referred to his earlier oral decision and mistakenly indicated that the earlier decision was based upon a finding of both substantial compliance and extraordinary circumstances. That is, as the judge said in his oral decision of December 5, 2008: "substantial compliance was [met] with the report[s] [of August 2, 2007 and November 8, 2007]," and "[t]he exceptional circumstance was [that the expert] wouldn't give [plaintiff] the report without the dollars." Overarching these conclusions was the judge's determination that the statute was not intended to encourage gamesmanship or slavish adherence to form over substance.
That's exactly what's going on here. The defendant is asking me to slavishly adhere to form over substance. What difference does it make? ...