NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiff Theresa Kamery appeals from a June 3, 2014 Law Division order that dismissed her legal malpractice complaint against defendant David W. Trombadore, Esq. for failure to comply with the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-26 to-29. Defendant cross-appeals from prior orders entered on March 10 and April 1, 2014, which allowed plaintiff's complaint to be reinstated after her first affidavit of merit (AOM) was found to be deficient, and granted her an additional thirty days to file a compliant AOM.
We set forth the procedural history in detail because it frames our analysis of the parties' respective arguments. On July 30, 2012, plaintiff filed a complaint alleging defendant had committed legal malpractice when he represented plaintiff in her divorce proceedings. Defendant filed an answer on October 24, 2012, generally denying the allegations and demanding that plaintiff produce an AOM pursuant to N.J.S.A. 2A:53A-27. On December 18, 2012, defendant also served plaintiff with interrogatories and a document request.
On August 6, 2012, plaintiff filed an AOM authored by Marc D. Serra, Esq. (the Serra AOM). Serra averred that he was a licensed New Jersey attorney for at least five years, that during the preceding year he "devoted a majority of [his] professional time to the active practice of law involving civil litigation," and that the services rendered by defendant "fell outside acceptable professional or occupational standards or practices." The Serra AOM contained a "notice" that
[i]f [] defendant contends that this [AOM] fails to completely satisfy the requirements of the [AMS] . . . in any way, demand is hereby made that [] defendant immediately notify [] plaintiff of any such alleged deficiencies so that same may be corrected if necessary and within the time constraint of [the AMS].
Counsel for plaintiff claims he served the Serra AOM on defense counsel after the answer was filed. Defendant denies receiving it. Rather, defendant contends he first became aware of the Serra AOM when he contacted the court on February 22, 2013, after the 120-day statutory period to file an AOM had expired.
That same day, defendant sent a letter to plaintiff requesting Serra's Curriculum Vitae (CV) and a copy of all documents Serra relied on in preparing his AOM. Defendant also requested plaintiff's responses to defendant's initial discovery requests, which were then overdue. On February 27, 2013, defendant noticed Serra's deposition. Receiving no response, defendant again noticed Serra's deposition on March 22, 2013.
Having received no response to either deposition notice, the request for Serra's qualifications, or any other discovery request, on May 2, 2013, defendant moved to dismiss plaintiff's complaint for failure to provide discovery. Plaintiff failed to oppose the motion, and on May 24, 2013, the court dismissed plaintiff's complaint without prejudice. On August 6, 2013, defendant moved to dismiss plaintiff's complaint with prejudice because the requested discovery had still not been provided. On August 29, 2013, while defendant's dismissal motion was pending, plaintiff provided responsive answers to interrogatories along with the requested documents. Defendant contends he did not receive these responses until September 18, 2013. In the interim, having received no opposition to the motion, the court dismissed plaintiff's complaint with prejudice pursuant to Rule 4:23-5(a)(2) on September 12, 2013.
On September 25, 2013, plaintiff moved to vacate the dismissal. On October 11, 2013, the court found that plaintiff had responded fully to all discovery demands. Accordingly, the court vacated the dismissal and restored the case to the active trial calendar.
The court conducted a Case Management Conference (CMC) on October 17, 2013, to address discovery issues, and entered a Case Management Order (CMO). That CMO was superceded by an October 28 CMO that required defendant to turn over a complete copy of his file in the underlying matrimonial proceedings within fifteen days. Plaintiff was ordered to provide defendant with more specific answers to interrogatories and document requests, Serra's CV, and any documents that Serra based his AOM on, by December 15, 2013.
On October 23, 2013, defendant moved to dismiss plaintiff's complaint for failure to comply with N.J.S.A. 2A:53A-27. The court scheduled oral argument on the motion on November 22, 2013. Counsel for plaintiff did not appear. The court granted defendant's motion and dismissed plaintiff's complaint with prejudice, finding that Serra failed to state whether he possessed five years' experience in matrimonial litigation as required under the AMS.
Plaintiff moved for reconsideration. On January 17, 2014, the court granted plaintiff's motion for reconsideration, vacated the November 22, 2013 order, and restored plaintiff's complaint to the active trial calendar.
On January 31, defendant moved for reconsideration of the January 17 order, which the court denied on March 10, 2014. In its written opinion, the court explained that no Ferriera1 conference had been held to identify and address any failure to comply with the AMS. Citing Knorr v. Smeal, 178 N.J. 169 (2003), the court also determined that defendant did not timely file his motion to dismiss. The court found:
Defendant engaged in extensive motion practice, served interrogatories, demanded production of documents, and waited almost a year to challenge the validity of the AOM. Although the [c]ourt acknowledges that much of this practice had to deal with discovery related to the AOM, [] [d]efendant cites no law supporting the proposition that this excused [him] from challenging the AOM in a timely manner.
The court conducted a Ferreira conference on April 1, 2014, and found the Serra AOM deficient.2 Plaintiff was directed to file and serve a compliant AOM within thirty days. The order further provided that plaintiff's case would be dismissed with prejudice if she failed to do so. The Court also entered a CMO setting revised dates for the completion of discovery.
On April 22, 2014, plaintiff served supplemental answers to discovery propounded by defendant and identified the documents previously produced. On April 28, 2014, within the time allotted by the court, plaintiff served a second AOM, authored by Gregory S. Abramson, Esq. (the Abramson AOM). Pertinent to this appeal, Abramson represented in his AOM that he was "licensed as an attorney within this State for at least five years."
On May 2, 2014, defendant again moved to dismiss plaintiff's complaint with prejudice for failure to comply with N.J.S.A. 2A:53A-27 and the April 1 order. Defendant contended that Abramson was first licensed to practice law in December 2009, and hence lacked the requisite five years' experience. On May 15, before the motion was heard, plaintiff filed a third AOM, authored by Brian Freeman, Esq. (the Freeman AOM).
The court heard oral argument on the motion on May 23, 2014. Plaintiff conceded that Abramson lacked the requisite experience and therefore his AOM was not compliant. On June 3, 2014, the court granted defendant's motion. In its written decision, the court concluded that plaintiff's failure to comply with the April 1 order, coupled with the "extensive history regarding dismissals, reinstatements, tardiness, last-minute adjournments and more," warranted dismissal with prejudice pursuant to Rule 4:23-2. Because it was untimely, the court noted, but did not further address, the "purportedly compliant [Freeman] AOM." These appeals followed.
On appeal, plaintiff argues that defendant's delay in challenging the original Serra AOM was unreasonable and frustrated the intent of the AMS, which is to screen out meritless malpractice actions at an early stage in the litigation. Plaintiff further contends that she properly relied on Abramson's representation, memorialized in his AOM, that he possessed the requisite experience. Additionally, plaintiff argues that she substantially complied with the AMS and that it was error to dismiss her complaint. Defendant in turn argues that he diligently pursued discovery, including Serra's qualifications, and that the court's failure to conduct a Ferreira conference should not excuse plaintiff's lack of compliance with the AMS. Defendant further contends that, even though the court erred in reinstating plaintiff's complaint and ordering a Ferreira conference after the statutory period had expired, plaintiff nonetheless still failed to comply with the April 1, 2014 CMO, and that dismissal was warranted on that basis. Before we analyze these contentions, we summarize some well-settled general principles regarding the AMS.
In Ferreira, supra, 178 N.J. at 150, the Court stated that the dual purpose of the AMS is "to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." (Internal quotation marks omitted); see also Buck v. Henry, 207 N.J. 377, 383 (2011) (indicating that "[t]he purpose of the [AMS] is to weed out frivolous complaints, not to create hidden pitfalls for meritorious ones").
N.J.S.A. 2A:53A-27 provides that [i]n any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within [sixty] days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill[,] or knowledge exercised or exhibited in the treatment, practice[,] or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed [sixty] days, to file the affidavit pursuant to this section, upon a finding of good cause.
The Supreme Court recognized three procedural requirements under the AMS:
First, the plaintiff must show that the complaint is meritorious by obtaining an affidavit from an appropriate, licensed expert attesting to the reasonable probability of professional negligence. Second, the affidavit must be provided to the defendant within sixty days of the filing of the answer or, for good cause shown, within an additional sixty-day period. Third, the plaintiff's failure to serve the affidavit within 120 days of the filing of the answer is considered tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice. [Ferreira, supra, 178 N.J. at 149-50 (citations and footnote omitted) (internal quotation marks omitted).]
As noted, the statutory time limit for serving a compliant AOM is 120 days from the filing of defendant's answer. N.J.S.A. 2A:53A-27. However, to temper an inflexible application of the AMS, the Supreme Court has carved out exceptions for extraordinary circumstances, Cornblatt v. Barow, 153 N.J. 218, 247 (1998); Tischler v. Watts, 177 N.J. 243, 246-47 (2003); for substantial compliance with the statutory requirements, Fink v. Thompson, 167 N.J. 551, 564-65 (2001); Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 357 (2001); for equitable estoppel and laches, Knorr, supra, 178 N.J. at 180-81; and for technical deficiencies in the contents or service of the affidavit that could have been cured within the statutory time limit, Ferreira, supra, 178 N.J. at 154.
In Buck, supra, 207 N.J. at 394, the Court reaffirmed Ferriera's requirement that a "[CMC] be held within ninety days of the service of an answer in all malpractice actions" (citation omitted). The Court further noted that "[t]he painful experience of our affidavit of merit jurisprudence reveals the compelling need for such conferences at an early stage before problems arise." Ibid. (alteration in original) (quoting Ferriera, supra, 178 N.J. at 155).
Guided by these principles, we first reject defendant's challenges to the March 10 and April 1, 2014 orders. To reiterate, in the March 10 order the court denied defendant's motion to reconsider its January 17 order that restored the case to the active trial calendar following its earlier dismissal.
The court also scheduled the matter for a Ferriera conference. After the conference was conducted and the Serra AOM deemed deficient, on April 1 the court granted plaintiff thirty days to file and serve a compliant AOM.
A Ferreira conference serves to avoid inadvertent and technical errors in timely service of the affidavit. See Ferreira, supra, 178 N.J. at 148 (counsel's inadvertent failure to serve upon opposing counsel an AOM that had been timely executed within the statutory deadline). It also "require[s] [a defendant] to advise the court whether he has any objections to the adequacy of the affidavit." Id. at 155. In this case, both of these purposes would have been served by a Ferreira conference. First, it could have assisted in resolving the dispute as to whether defendant had been timely served with the Serra AOM, as plaintiff claimed. Second, it would have led to a timely determination whether the Serra AOM was deficient, in which event plaintiff would have the opportunity to cure the deficiency within the statutory 120-day period. Accordingly, we discern no error in the trial court's determinations to reinstate plaintiff's complaint, schedule a Ferriera conference to address the sufficiency of the Serra AOM, and then allow plaintiff a thirty-day period to submit a compliant AOM. We therefore affirm the March 10 and April 1, 2014 orders.
We next address plaintiff's appeal of the June 3, 2014 order dismissing her complaint with prejudice for failure to submit a compliant AOM within thirty days of the April 1 order. We do so with a full recognition of, and appreciation for, the frustration that the judge no doubt felt due to the dilatory tactics of plaintiff's counsel during the discovery process. Nonetheless, we also recognize that "[a] complaint will not be dismissed if the plaintiff can show that [s]he has substantially complied with the [AMS]." Id. at 151. Plaintiff has done so here.
"[T]here is nothing reflective in the objectives of the [AOM] Bill or its history that suggests the Legislature intended to foreclose the familiar doctrine of substantial compliance in the [AOM] context." Cornblatt, supra, 153 N.J. at 240. To establish substantial compliance the defaulting party must show the following:
(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim, and (5) a reasonable explanation why there was not strict compliance with the statute.
[Galik, supra, 167 N.J. at 353 (quoting Bernstein v. Bd. of Trs., 151 N.J.Super. 71, 76-77 (App. Div. 1977).]
Here, there is no dispute that the Serra AOM was filed in a timely manner, approximately one week after the complaint and three months before defendant's answer. When it was determined to be deficient, plaintiff promptly filed the Abramson AOM within thirty days. Upon learning that Abramson lacked the requisite five years' experience by a few months, plaintiff promptly submitted the Freeman AOM before the dismissal motion was heard. Plaintiff has clearly established that she took a "series of steps" to comply with the AMS, that she gave reasonable notice of her claim, and that she generally complied with the purpose of the AMS, which is to provide early notice of the claim so as to evaluate its viability.
Defendant does not allege that he was prejudiced by the lack of strict compliance. "Certainly, there has been no showing of prejudice to defendant[] that would outweigh the strong preference for adjudication on the merits rather than final disposition for procedural reasons, or would warrant visiting on the innocent client[] an error of [her] attorney[.]" Mayfield v. Community Med. Assocs., P.A., 335 N.J.Super. 198, 207 (App. Div. 2000) (citations omitted). Finally, with respect to the Abramson AOM, plaintiff's attorney relied on counsel's representations, sworn to in his affidavit, that he possessed the requisite five years' experience. We cannot conclude that such good faith reliance was unreasonable.
In short, "[t]his is not a case of a plaintiff sleeping on [her] rights and ignoring statutorily imposed deadlines." Buck, supra, 207 N.J. at 395. "Rather, this is a case of a plaintiff who has made [three] good-faith attempts to satisfy the statute." Ibid. Accordingly, we conclude that she has not forfeited her right to have her day in court.
We therefore reverse the June 3, 2014 order and remand the case back to the trial court to determine the sufficiency of the Freeman AOM. If it is found to be deficient, the case shall again be dismissed with prejudice. If, on the other hand, it complies with the AMS, the court shall hold a CMC to address any remaining discovery issues.
Affirmed in part and reversed in part. We do not retain jurisdiction.
