JDN REAL ESTATE-HAMILTON, L.P., A GEORGIA LIMITED PARTNERSHIP, Plaintiff,
COLD STONE CREAMERY LEASING COMPANY, INC., AN ARIZONA CORPORATION, C/O COLD STONE CREAMERY, INC., Defendants, and VICTOR ROSA, Defendant/Third-Party Plaintiff-Appellant,
HOWARD CHERNOFF, Third-Party Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-13-11.
Amy E. Gasiorowski argued the cause for appellant (Frieri & Conroy LLC, attorneys; Ms. Gasiorowski and John R. Frieri, on the briefs).
George Karousatos argued the cause for respondent (Biancamano & DiStefano, P.C., attorneys; Mr. Karousatos, of counsel; Charles W. Atkinson, III, on the brief).
Before Judges Fuentes, Simonelli and Fasciale.
In this legal malpractice matter, defendant, third-party plaintiff Victor Rosa appeals from the dismissal of his third-party complaint against defendant Howard Chernoff with prejudice for failure to timely file an affidavit of merit (AOM) and timely serve an expert's report. We affirm the dismissal based on the untimely expert's report for the reasons the court expressed in its February 28, 2013 written opinion. We also affirm the dismissal based on the untimely AOM, but for reasons other than those the court expressed. Aquilio v. Cont'l Ins. Co. of N.J., 310 N.J.Super. 558, 561 (App. Div. 1998).
We provide a detailed procedural history in order to place this appeal in its proper perspective. Rosa was a personal guarantor of a lease between a franchise known as Cold Stone Creamery and plaintiff JDN Real Estate-Hamilton L.P. (JDN). Rosa decided to sell his interest in the franchise and retained Chernoff to represent him. The transaction closed in May 2007, without a release of the guarantee. After the new owner defaulted under the lease, JDN filed a complaint against Rosa as guarantor for non-payment of rent.
On May 13, 2011, Rosa filed a third-party complaint against Chernoff, alleging legal malpractice for failing to obtain a release of the guarantee. Chernoff filed an answer on June 14, 2011. N.J.S.A. 2A:53A-27 required Rosa to file an AOM within sixty days of the filing of the answer, or by August 14, 2011.
On October 6, 2011, the court granted summary judgment to JDN, and entered a final judgment against Rosa and Cold Stone Creamery, jointly and severally, in the amount of $84, 131.52. For reasons not revealed in the record, the trial court stayed execution of the judgment for six months, until April 6, 2012.
Rosa did not file an AOM. On November 11, 2011, Chernoff filed a motion to dismiss the third-party complaint for failure to file an AOM. The court denied the motion and granted Rosa an additional sixty days to file the AOM from April 6, 2012, the date the stay of execution expired, thus requiring Rosa to file the AOM by June 5, 2012. On April 6, 2012, the stay of execution expired, and JDN began collecting the judgment against Rosa. Although Rosa and Chernoff discussed settling the third-party claims, there was no settlement demand or offer made.
Rosa obtained an AOM on June 8, 2012, but did not file it until July 27, 2012. In the meantime, the discovery period ended on July 5, 2012. On August 13, 2012, the court scheduled the trial for November 5, 2012.
On August 8, 2012, Chernoff filed a motion to dismiss the third-party complaint for failure to timely file the AOM and a motion for summary judgment based on Rosa's failure to serve an expert's report. On August 21, 2012, Rosa served an expert's ...