On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-207-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, J. N. Harris and Koblitz.
Plaintiff Jacqueline Nguyen appeals from a September 30, 2010 order dismissing her complaint alleging legal malpractice for failure to provide an affidavit of merit (AOM) within 120 days of defendant's April 16, 2010 answer. Plaintiff contends that extraordinary circumstances, including the failure to hold a Ferreira hearing, mandate that she be given additional time to file an AOM. See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant Harmon H. Lookhoff is a practicing attorney in the State of New Jersey. Plaintiff Jacqueline Nguyen retained Lookhoff to represent her in a legal malpractice action against an attorney Nguyen had retained to represent her in a prior legal malpractice action against another attorney. Lookhoff certified that he billed against the $2000 retainer at $250 per hour. On January 5, 2010, after exhaustion of the retainer, Lookhoff submitted a bill to Nguyen for a balance due of $1990.75. Nguyen paid $1000 of the balance on or about January 29, 2010. Lookhoff further certified that as of January 29, 2010, he was unable to determine whether or not a sufficient factual basis existed to pursue a legal malpractice action. Lookhoff also certified that at some point shortly after January 29, 2010, Nguyen requested that Lookhoff perform no further work on her behalf.
Nguyen does not contest the dates specified in Lookhoff's certification, but denies that she requested he cease pursuing her malpractice claim against her former attorney.
From September 24, 2009, the date on which Nguyen retained Lookhoff, through February 2, 2010, Lookhoff sent seven letters to Nguyen, and an itemized bill. In addition, Lookhoff sent a letter to the former lawyer and two letters to Civil Case Management requesting the files for the claim handled by that lawyer.
Nguyen filed a pro se complaint against Lookhoff on March 31, 2010, alleging legal malpractice. Lookhoff filed his answer on or about April 16, 2010. On June 16, 2010, Lookhoff's counsel sent a letter to Nguyen providing notice of her failure to file an AOM within sixty days of the filing date of his answer. See N.J.S.A. 2A:53A-27. The letter further informed Nguyen of Lookhoff's intention to move to dismiss her complaint with prejudice for failure to comply with the mandate of N.J.S.A. 2A:53A-27. Nguyen replied to Lookhoff's counsel by letter dated June 17, 2010, in which she claimed to have provided the necessary AOM, although, in fact, she had not done so.
As Nguyen's appeal does not dispute the material facts and is based on the claimed erroneous application of N.J.S.A. 2A:53A-27 by the motion judge, our review of the motion court's determination is plenary. See Triarsi v. BSC Group Servs., LLC, 422 N.J. Super. 104, 113 (App. Div. 2011) (citing Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
N.J.S.A. 2A:53A-27 requires that:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, 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 treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
The statute applies to legal malpractice actions. See N.J.S.A. 2A:53A-26(c).
As the statute unambiguously states, an AOM should be filed within sixty days of the filing of the answer. N.J.S.A. 2A:53A-27. However, "if provided within sixty-one to 120 days after the answer is filed, the affidavit will be deemed timely so long as (1) leave to file is sought and (2) good cause is established." Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 (2010) (citing Burns v. Belafsky, 166 N.J. 466, 475-77 (2001)). Nevertheless, the 120-day period provided by statute "does not constitute a non-extendable barrier" if a plaintiff can show that an extension is warranted because of extraordinary ...