On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0458-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012 - Decided Before Judges Lihotz and Baxter.
By leave granted, defendants KMB Design Group, L.L.C. (KMB) and Volver Engineering, L.L.C. (Volver) appeal from a December 2, 2011 Law Division order that denied their motion to dismiss plaintiff's complaint for failure to provide an affidavit of merit. The judge recognized that plaintiff did not supply an affidavit of merit until after defendants filed their motion, and that the affidavit of merit was supplied 108 days beyond the 120 day limit established by the applicable statute. Nonetheless, the judge excused the late submission of the affidavit of merit, reasoning that plaintiff did not know, and had no ability to promptly ascertain, that defendants were engineers and that an affidavit of merit was therefore required.
The judge's conclusion is contradicted by documents in the record -- including defendants' answers to interrogatories --that unequivocally informed plaintiff of defendants' profession before the 120-day time limit expired. We reverse the denial of defendants' motion to dismiss.
On February 27, 2009, while in the scope of his employment with Priore Construction (Priore), plaintiff Gennaro Sirianni was performing repairs to a cell tower and building owned by defendant Network Management, LTD. Defendant Flo TV (Flo), used the cell tower to transmit its signal. Flo hired defendants KMB and Volver to provide engineering services in connection with planned alterations to the cell tower. KMB and Volver then hired Epic Construction (Epic) as the general contractor. Plaintiff's employer, Priore, was a subcontractor.
On the day in question, after completing repairs on the cell tower, plaintiff exited the platform of the tower through the opening. As he exited, the hatch door suddenly and without warning fell onto his head, causing him serious injuries.
On January 21, 2011, plaintiff filed suit against KMB and Volver, asserting, in relevant part, that the two entities "were actively engaged in the business of designing, manufacturing, distributing and/or selling cell towers, doors, latches and/or accessories for the cell tower where the plaintiff was working." KMB and Volver filed their answer on April 15, 2011. In their answer, KMB and Volver denied ownership or control of the premises, and, as to the remainder of the allegations, asserted that they lacked sufficient knowledge or information to form a belief as to the truth of the allegations. On July 13, 2011, plaintiff filed an amended complaint against KMB and Volver, again asserting that the two defendants negligently "designed . . . the door of the cell tower[.]"
On May 11, 2011, shortly after receiving KMB's and Volver's answer to plaintiff's complaint, plaintiff's counsel wrote to the attorney representing KMB asking him if KMB and Volver were "alleging that plaintiff's claim requires an Affidavit of Merit." Counsel for KMB did not issue a written reply to plaintiff's May 11, 2011 letter until three months later, on August 10, 2011, at which time counsel wrote:
As you are aware, we represent defendants KMB Design Group, LLC and Volver Engineering, LLC in the above-referenced action. I am writing in response to your letter, dated May 11, 2011, in which you inquired whether my clients are alleg[ing] that plaintiff's claim requires an Affidavit of Merit. As you know, my clients are engineering firms and any claim for negligent design, as is alleged in the complaint, necessarily requires an Affidavit of Merit. We had tried contacting you by phone several times regarding this, but have not had the courtesy of a received return phone call. By our calculations, the time to file an Affidavit of Merit will expire on August 23, 2011 [sic].*fn1
Counsel for KMB sent his August 10, 2011 letter to plaintiff's counsel by both regular mail and by fax.
In their July 6, 2011 answers to plaintiff's interrogatories, KMB and Volver stated that they had been hired by Flo: to perform engineering and building services to an existing cell tower and building owned by defendant/third party plaintiff, Network Management, Ltd. . . . . Defendant[s] did not perform any ...