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McCabe v. Wallace & Legome, LLP

Superior Court of New Jersey, Appellate Division

July 5, 2013

DR. CHARLES McCABE, Plaintiff-Appellant,


Argued January 24, 2013

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-758-11.

David T. Lewis argued the cause for appellant (Lewis & Forrey, L.L.C., attorneys; Mr. Lewis, on the briefs).

Robert C. Neff, Jr., argued the cause for respondents (Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys; Maxwell W. Billek, of counsel and on the brief; Mr. Neff, on the brief).

Before Judges Grall and Accurso.


Plaintiff Charles McCabe appeals from an August 19, 2011 final order dismissing his complaint with prejudice for failure to comply with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-27. Plaintiff acknowledges his failure to file the affidavit, but contends the common knowledge exception applies. We disagree and affirm.

Plaintiff is a chiropractor who retained defendants to prosecute "more than one hundred" personal injury protection (PIP) suits on behalf of his practices, United Medical Center, L.L.P. and Pennsauken Chiropractic Center, P.A. that had previously been filed by the law firm of Liebling & Malamut, L.L.C. In his malpractice complaint he alleged that defendants

negligently failed to properly protect his rights, insomuch that they failed to properly institute PIP suits and keep him apprised and subsequently blew PIP Statutes and/or in the alternative allowed through negligence and/or standard of practice to protect plaintiff's statutory rights to the collection of money which fell below an acceptable legal standard of care.

Shortly after the complaint was filed, plaintiff sought an order to show cause to recover his PIP files from defendants. Judge Richmond signed an order on April 15, 2011 requiring their production. On June 24, 2011, a little more than a month after the answer was filed, plaintiff moved pursuant to N.J.S.A. 2A:53A-28 to compel the production of the PIP files as previously ordered and to extend the deadline for filing an affidavit of merit until after they had been produced. The court conducted a Ferreira[1] conference on July 11, 2011. The judge thereafter issued an order noting plaintiff's withdrawal of his motion to compel production of the PIP files and ordering defendants to turn over "any and all of plaintiff's files" no later than July 25, 2011, with plaintiff's affidavit of merit to follow within sixty days.

Defendants produced the files on August 2, 2011.[2] On August 5, 2011, plaintiff's counsel filed a motion to be relieved, contending in a certification that plaintiff had threatened him with physical violence and that their relationship had so "completely broken down" that he could no longer continue as plaintiff's counsel. Plaintiff did not oppose the motion and the court granted it on September 2, 2011. Plaintiff thereafter proceeded pro se. On October 24, 2011, defendants filed a motion to dismiss for failure to file an affidavit of merit. Plaintiff failed to file opposition and the court entered an order dismissing the complaint with prejudice on November 18, 2011.

On January 3, 2012, plaintiff's current counsel filed a notice of appeal and requested that the court file a statement of reasons pursuant to Rule 2:5-1(b). Judge Richmond placed her reasons on the record on February 3, 2012. The judge found that the allegations of the complaint, which included claims that defendants deviated from acceptable professional standards of conduct by "'blowing' [] the statute of limitations, not keeping the plaintiff advised of the status of his matters, and otherwise impairing his rights to collect moneys allegedly due to him, " could not be prosecuted in the absence of an affidavit of merit. The judge noted that an "affidavit of merit is required by the statute, it was required by the management order, and it has not been provided." Plaintiff never argued to the trial court that no affidavit of merit was required on the facts alleged, and thus the judge did not address the common knowledge exception in her opinion.

On appeal, however, plaintiff urges only that no affidavit was required as the common knowledge ...

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