On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4499-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Lihotz.
Plaintiffs Robert "Rocco" and Kathleen A. Morosine appeal from the dismissal of their medical malpractice complaint for failure to satisfy the requirements of the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29. We affirm.
On July 29, 2008, plaintiffs filed a complaint, Monmouth County Docket No. L-3551-08 (first complaint), against defendant, Jerry Boorstein, D.O., alleging medical malpractice relating to the prescription of medicine which allegedly exacerbated asthmatic, bronchial and other conditions from which plaintiff Robert Rocco Morosine suffered. In an answer dated October 30, 2008, defendant denied or alleged insufficient information to admit or deny the allegations of plaintiffs' complaint. Subsequently, on December 23, 2008, fifty-four days after defendant's answer, plaintiffs filed an un-notarized statement of their expert, Austin J. Gerber, D.O. The expert swore on his professional oath. According to plaintiffs' counsel, the Affidavit of Merit was not notarized because the doctor was busy and did not understand the legal ramification. Thereafter, defendant moved to dismiss the complaint, arguing the Affidavit of Merit was insufficient. On April 17, 2009, 169 days after the answer, the unopposed motion to dismiss was granted, and plaintiffs' complaint was dismissed with prejudice, "for failure to file a properly conforming Affidavit of Merit pursuant to N.J.S.A. 2A:53A-27."
On May 13, 2009, plaintiffs moved to vacate the April 17, 2009 order and reinstate their complaint. In support of their motion, plaintiffs asserted that defendant's moving papers were never served upon their attorneys. At oral arguments conducted on June 26, 2009, the court agreed to "vacate the original order and . . . look at it ab initio[.]" Thus, the court vacated the prior dismissal but permitted defendant to renew his motion to dismiss, which was adjourned to allow both parties to supplement the record and call to the court's attention any further legal authority they felt supported their respective positions. At the close of oral arguments, counsel for plaintiff described the circumstances surrounding the submission of the Affidavit of Merit. Counsel stated:
I was in charge of getting the affidavit signed, and I made a legal decision that I either was going to get - it was during Christmas. It was - the circumstances around these - is very important because the physician was very busy, as most physicians are. It was Christmas time, and I made a decision. Either I'm getting it in before the statute expires, or I'm getting it in without an - so, I - Your Honor, in all fairness, I want you to be aware I didn't hand it in, in a blind, you know, vacuum.
I was fully aware of the affidavit of merit argument. Fully aware that we were going to come up with an opposition. I spoke to the clerk downstairs, and I said, you know, I cannot get this notarized in time. I don't want to blow the statute.
So she - she said, I can't offer legal advice, but if you're dealing with statute problem - and [co-counsel] was away on vacation. I couldn't reach her in Bermuda or - [Co-counsel] was away on vacation. So, I made the decision. I blame myself for it, and I knew I would have to fight it.
Thereafter, on July 23 and July 27, 2009, the court entered an order and amended order, respectively dismissing plaintiffs' complaint for failure to supply an Affidavit of Merit as required by N.J.S.A. 2A:53A-27; the orders did not state whether the dismissal was with or without prejudice.
On September 15, 2009, plaintiffs filed a second complaint, Monmouth County Docket No. L-4499-09, and defendant promptly moved to dismiss that complaint based on res judicata. A November 6, 2009 hearing was held to determine if the prior dismissal was with or without prejudice. At that hearing, plaintiffs argued that the dismissal of their complaint had been without prejudice; that they had not received a Ferreira*fn1 conference and that defendant had waived his right to object to the Affidavit of Merit. The matter was adjourned to allow the parties to make further submissions and to allow the court to consider further the issues raised.
On December 24, 2009, without additional oral argument, the court determined that the dismissal of plaintiffs' complaint was with prejudice. The court wrote on the order in longhand that "This complaint is dismissed with prejudice since the complaint under Docket No. L-3551-08 [the first complaint] should have been dismissed with prejudice in the July 27, 2009 order. See Tunia v. St. Francis Hosp., 363 N.J. Super. 301 (App. Div. 2003)[, certif. denied, 179 N.J. 311 (2004)]."
This appeal ensued, centered on the dismissal of the complaint for failure to provide a sufficient Affidavit of Merit under N.J.S.A. 2A:53A-27. That section of the Affidavit of Merit statute requires that, in a medical malpractice case, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, 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 ...