On appeal from Superior Court of New Jersey, Chancery Division, Sussex County, Docket No. C-8-07.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Grall.
By leave granted, third-party defendants Suburban Consulting Engineers, Inc., and Martin Sikorski, P.L.S., (collectively SCE) appeal from the denial of a motion to dismiss a third-party complaint for failure to comply with the Affidavit of Merit Statute (Statute), N.J.S.A. 2A:53A-26 to 29. We conclude that application of the Statute would be inconsistent with its overall purposes under the present circumstances of this case.
The third-party complaint was filed by Lisa Ann and Frank W. Nicastro, Sr. The Nicastros are the defendants in an action filed by plaintiff Highland Lakes Country Club and Community Association (Club) to resolve a dispute over the boundary line separating the parties' lots that implicates a six-acre area of the Nicastros' thirty-three-acre property. SCE surveyed the Nicastros' property, prepared a metes and bounds description and marked its corners with "pins." The Nicastros retained SCE to do this work in 2004, after they purchased the lot but before undertaking work in preparation for construction of a new residence. The Club notified the Nicastros that it believed they were excavating on its property in September 2006, and the Nicastros responded by producing SCE's survey.
On February 27, 2007, the Club commenced litigation to establish the boundary line and obtain damages, restitution and injunctive relief for the Nicastros' alleged trespass on, conversion of and damage to its property. The Club also asserted that the Nicastros acted in willful, malicious, wanton and reckless disregard of its property rights.
Although the Club's complaint does not include any allegations against SCE, the Club relies on a discrepancy between the line shown on SCE's survey and the line shown on a 1999 subdivision plat and a 2006 "sketch" prepared by Dana J. Behre, also a professional land surveyor, and a letter from Behre expressing and explaining his confidence in the correctness of the line shown on his 1999 subdivision plat. Behre's 2006 "sketch" includes disclaimers noting that the area is shown "approximately" and the sketch was prepared "for discussion purposes," without "any field work on the site since approximately 1999" and based on review of SCE's survey, a "map [that] was never filed" and recorded deeds.
On May 10, 2007, the Nicastros filed the third-party complaint against SCE that is at issue here. In that complaint, the Nicastros did not allege that SCE's work was inaccurate. Rather, they claimed that they retained SCE to prepare the boundary survey and set the pins and subsequently relied upon SCE's work in developing their property. They asserted that any liability they had to the Club would be "secondary and vicarious" to SCE's primary liability. On that ground, the Nicastros sought indemnification and compensatory damages and demanded contribution pursuant to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, and the Joint Tortfeasor Contribution Law, N.J.S.A. 2A:53A-1 to -5.
SCE filed its answer to the Nicastros' third-party complaint on June 18, 2007. The Nicastros did not file an affidavit of merit within the statutory period. N.J.S.A. 2A:53A-27.
After the deadline and before the Club had provided an expert report or complied with a discovery order compelling it to provide a survey, SCE moved to dismiss the Nicastros' third-party complaint. SCE contended that because the Nicastros had not filed an affidavit of merit their complaint failed to state a cause of action. N.J.S.A. 2A:53A-29. In opposition, the Nicastros argued that their claims for indemnification, contribution and damages will not accrue until error in SCE's survey is established and contended that SCE was not entitled to a dismissal for failure to comply with the Statute.*fn1
The trial court denied SCE's motion to dismiss and its motion for reconsideration. Relying upon Diocese of Metuchen v. Prisco & Edwards, AIA, 374 N.J. Super. 409, 417-19 (App. Div. 2005), and noting that the Club had yet to produce an expert report supporting the boundary it sought to establish, the trial court concluded that the Nicastros should not be compelled to make the Club's case against themselves while they continued to defend on the ground that the boundary line shown on SCE's survey is accurate. In stating its reasons for denying reconsideration, the court indicated its willingness to consider SCE's application again if and when the Nicastros' claims of professional negligence ripen.
The general goals and requirements of the Statute are well-established. It was enacted to "'weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court.'" Couri v. Gardner, 173 N.J. 328, 340 (2002) (quoting Hubbard v. Reed, 168 N.J. 387, 395 (2001)); see Charles A. Manganaro Consulting Eng'rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J. Super. 343, 347 (App. Div. 2001). To that end, N.J.S.A. 2A:53A-27 requires a "plaintiff" in an "action for damages for . . . property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation" to file an affidavit of merit within sixty days of the defendant's answer. The affidavit required is one that asserts "a reasonable probability that the care, skill or knowledge exercised . . . in the . . . work that is the subject of the complaint, fell outside acceptable professional" standards. Ibid. ...