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D'Agostino v. Drazin & Warshaw, P.C.

Superior Court of New Jersey, Appellate Division

September 13, 2013

STEVEN D'AGOSTINO, Plaintiff-Appellant,
v.
DRAZIN & WARSHAW, P.C., Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 5, 2013

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Special Civil Part, Docket No. DC-021538-10.

Steven D'Agostino, appellant, argued the cause pro se.

Mark M. Tallmadge argued the cause for respondent (Bressler, Amery & Ross, attorneys; Mr. Tallmadge and Gregory J. Cannon, on the brief).

Before Judges Lihotz and Ostrer.

PER CURIAM

The trial court dismissed plaintiff Steven D'Agostino's legal malpractice complaint against defendant Drazin & Warshaw, P.C. for failure to file an affidavit of merit. The court then denied plaintiff's motion for reconsideration. Plaintiff appeals from the order denying reconsideration. Having reviewed plaintiff's arguments in light of the facts and applicable law, we affirm.

I.

Plaintiff filed his pro se complaint in the Special Civil Part on October 15, 2010, almost six years after he obtained a settlement in a personal injury action in which defendant represented him. The record reflects that plaintiff, a musician, slipped and injured his neck and shoulder while entering a restaurant where he was scheduled to perform on April 24, 1999. He was treated with physical therapy and cortisone shots. According to defendant, it filed the complaint on plaintiff's behalf against the restaurant and related parties, and ultimately obtained a $41, 250 settlement in the midst of trial, of which $23, 849.83 was paid to plaintiff, after defendant deducted its fee and costs.

Plaintiff's complaint against defendant stated, in full:
Defendant represented Plaintiff in a personal injury matter, which commenced in 1999 and continued until 2004. However, numerous mistakes were made by Defendant, both during trial and the years before. As a direct result, Plaintiff was compelled to accept a much lower settlement amount. Plaintiff contends these mistakes constitute breach of contract and malpractice.

As damages, plaintiff did not seek the additional recovery he claims he would have secured in the underlying action.[1] Rather, he seeks disgorgement of defendant's fee, which was within the jurisdictional limit of the Special Civil Part.

In its November 29, 2010, answer, defendant denied plaintiff's allegations, and demanded that plaintiff produce an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. Defendant also served plaintiff with interrogatories and a document production request. The parties then engaged in motion practice involving discovery and the necessity of an affidavit of merit.

Plaintiff filed a motion on December 28, 2010, seeking permission to proceed without an expert witness. However, the clerk rejected the motion as non-conforming on January 5, 2011. Plaintiff then filed an accepted conforming motion on January 13, 2011. Defendant filed opposition. Plaintiff alleged in an affidavit in support of his motion that defendant was negligent by failing to obtain all his medical records; to oppose certain defense motions; and to subpoena his treating physicians to testify. He alleged that as a result, before jury deliberations began, he was compelled to accept an inadequate settlement. ...


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