On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-271-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Maven.
Plaintiff Willie Timmons*fn1 appeals from a February 3, 2012 order of the Law Division dismissing with prejudice his medical malpractice complaint against defendants Dr. Ronaldo DeGuzman and Meetinghouse Family Physicians, P.A., for failure to timely file an affidavit of merit. We affirm.
On January 13, 2011, plaintiff filed a medical malpractice complaint
against defendants alleging negligent delay in the diagnosis of his
prostate cancer and resultant injury. On August 12, 2011, defendants
filed their answer, which included a demand for an affidavit of merit.
On October 24, 2011, the trial judge convened a Ferreira*fn2
conference, at which a discussion was held about the December
10, 2011 (120-day) statutory deadline for filing of the affidavit of
merit. According to plaintiff, upon returning from the conference, his
attorney did not enter the deadline date in his calendar.
Consequently, on December 12, 2011, defendants moved to dismiss plaintiff's complaint pursuant to the affidavit of merit statute, N.J.S.A. 2A:53A-27. At plaintiff's counsel's request, the return date of the motion was adjourned from January 20, 2012 to February 3, 2012. Although plaintiff still had not provided the affidavit by the original return date, he did respond to the motion and on January 30, 2012, 171 days after defendants' answer was filed, submitted an affidavit of merit. On the return date of defendants' motion, after hearing argument, the judge entered an order dismissing plaintiff's complaint with prejudice, reasoning:
[In Ferreira,] the Court attempted to avoid the draconic consequences by at least alerting the counsel to the need to obtain that affidavit of merit. The Ferreira conference in this case occurred back in October. So, there was ample time to get the affidavit of merit.
Unfortunately, the affidavit of merit was not submitted until 171 days after the answer was filed, clearly outside the 120 day time frame.
And while the Burns [v. Belafsky, 166 N.J. 466 (2001)] case that was eluded to by Counsel for the plaintiff, talked about an extension for that second 60 day period, the Douglass [v. Obade, 359 N.J. Super. 159 (App. Div.), certif. denied, 177 N.J. 575 (2003)] case does make it abundantly clear, unfortunately, to this Court that there is a drop dead date of 120 days.
And the distinction that's argued by Counsel that in fact they did not have the affidavit in hand when the motion was argued 160 days after the answer was filed, Counsel for the defendants points out that this affidavit of merit is technically deficient in that the affidavit that was submitted does not identify the defendant doctors.
Accordingly, I think the Douglass case controls and I, frankly, have no alternative but to grant the relief sought by the defendants at this time and dismiss the plaintiff's complaint with prejudice at this time.
On appeal, plaintiff argues that the trial court erred in dismissing his complaint since he filed an affidavit of merit prior to the return date of the adjourned motion to dismiss. We disagree.
N.J.S.A. 2A:53A-27 mandates that in a personal injury action alleging malpractice by a licensed professional, "the plaintiff shall, within 60 days following the date of filing of the answer to the complaint[,]" serve an appropriate affidavit of merit. (Emphasis added). To underscore the significance of this procedural requirement, the statute further provides that "[t]he 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." ...