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Darryl L. Prosser v. andrew S. Zeldin

December 30, 2010


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3896-09.

Per curiam.


Submitted October 27, 2010 - Decided Before Judges Fisher and Sapp-Peterson.

Plaintiff, Darryl L. Prosser, appeals from a January 8, 2010 order dismissing his legal malpractice complaint against his former attorney, defendant, Andrew S. Zeldin. We affirm.

Plaintiff retained defendant to represent him in a divorce action. Plaintiff and his spouse reached a settlement as to all issues, and the terms of the agreement were placed on the record on December 28, 2008, the first day of trial. The court also heard testimony establishing the grounds for divorce and entered a Final Judgment of Divorce (FJOD) on that same date.

In early 2009, plaintiff filed a motion to reduce child support and terminate alimony. As part of the motion, he requested that defendant produce a marriage license. The court denied the motion. On October 5, 2009, plaintiff filed a motion seeking to vacate the FJOD pursuant to Rule 4:50-1. Plaintiff alleged that his marriage to his former spouse was not legal because no valid marriage license had been issued. The court denied the motion, noting that plaintiff failed to provide a transcript of the divorce proceeding. The court further concluded that producing a license was not essential to proving the validity of the marriage in a divorce proceeding as long as there was other evidence presented during the hearing to establish the fact of the marriage.

On August 4, 2009, plaintiff filed a complaint against Zeldin alleging legal malpractice. Specifically, plaintiff claimed that defendant "coerced" him "into agreeing" to the divorce settlement and that "[d]uring the entire divorce process [he told Zeldin] that there was nothing in [a] public record that served as a legal document to confirm that there was a legal marriage." Zeldin filed an answer denying the allegations set forth in the complaint and demanding that an affidavit of merit be served within sixty days. Prosser filed an amended complaint on August 28, 2009.

On November 2, 2009, following a Ferreira*fn1 conference, the court granted plaintiff a three-week extension to file the requisite affidavit of merit. It was not filed at the end of the three-week extension period. Instead, plaintiff wrote a letter to the court in which he apologized for "not presenting the Affidavit of Merit" and explained that the attorney "who was going to execute the Affidavit was unsure about doing it because he is not licensed in New Jersey[.]" Prosser requested that the court "proceed with this matter without an affidavit because expert testimony is not required and the malpractice can be established as a matter of common sense."

On December 2, 2009, Zeldin filed a motion to dismiss Prosser's complaint for failure to serve an affidavit of merit. Prosser opposed, citing Levinson v. D'Alfonso & Stein, 320 N.J. Super. 312 (App. Div. 1999), for the proposition that an affidavit of merit was not required. Following oral argument on the motion, the court rejected this argument and granted defendant's motion. The court entered an order dismissing the complaint with prejudice. The present appeal followed.

Plaintiff's sole point advanced in this appeal is his claim that he "was deprived of rights that were due to him under the law. Representing attorney refused to protect my rights and substituted the Law with Color of Law." Plaintiff then proceeds to primarily address the merits of his claim, specifically, that his marriage was not valid and that he was coerced into accepting the property settlement agreement. The only reference to his failure to file an affidavit of merit is his contention that Zeldin "committed legal malpractice and an Affidavit of Merit isn't needed to substantiate that. This act was blatant and a matter that is common sense[,] as it was in Levinson v. D'Alfonso[, supra, 320 N.J. Super. 312]."

Our review of a trial court's order dismissing "a complaint pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief may be granted, is plenary and we apply the same test as the Law Division." Smerling v. Harrah's Entertainment, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). That standard requires us to determine whether "plaintiff['s] proofs, together with all favorable inferences permissible therefrom, could sustain a judgment in plaintiff['s] favor, i.e., whether [plaintiff has] presented a prima facie case." Beadling v. William Bowman Associates, 355 N.J. Super. 70, 87 (App. Div. 2002).

A condition precedent to maintaining a claim for legal malpractice against an attorney licensed to practice law in this state is the requirement that a plaintiff file an affidavit of merit in accordance with N.J.S.A. 2A:53A-27, which provides in pertinent part: 2A:53A-27 In any action for damages for personal injuries . . . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall . . . provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.

An exception to the requirement that an affidavit of merit be filed occurs where the claimed malpractice or professional negligence involves matters of common knowledge. Hubbard v. Reed, 168 N.J. 387, 394 (2001). Common knowledge in this context refers to the ability of the jury to resort to "ordinary understanding and experience, to determine a defendant's negligence." Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999).

Plaintiff urges that his attorney's failure to prove that a valid marriage took place is a matter of common sense for which no expert ...

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