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Cherry Hill Legal Malpractice Lawyers: Substantial Compliance Under the NJ Affidavit of Merit Statute

The New Jersey Affidavit of Merit Statute (the “AOM Statute”), N.J.S.A. 2A:53A-26 to -29, requires a plaintiff in a professional negligence action to file an affidavit from an “appropriate licensed person” attesting that the defendant deviated from the acceptable standards for the profession, or the matter will be dismissed. The AOM Statute requires the plaintiff to file the affidavit of merit within 60 days after the first answer is filed, with one 60-day extension available. Before this 120-day period expires, the trial court is required to hold a case management conference to determine if an affidavit of merit has been filed and whether there are any objections to it. This case management conference, known as a Ferriera conference after Ferreira v. Rancocas Orthopedic Assoc., 836 A. 2d 779 (2003), serves to avoid inadvertent and technical errors in timely service of the affidavit. It also requires a defendant to advise the court whether he or she has any objections to the adequacy of the affidavit.

While the statutory time limit for serving a compliant affidavit is 120 days from the filing of defendant’s answer, to temper an inflexible application of the AOM Statute, there are exceptions for extraordinary circumstances, for substantial compliance with the statutory requirements, for equitable estoppel and laches, and for technical deficiencies in the contents or service of the affidavit that could have been cured within the statutory time limit. A recent case from the New Jersey Appellate Division, Kamery v. Trombadore, Docket No. A-5162-13T4, (N.J. App. Div. Dec. 23, 2015), examined the application of the substantial compliance doctrine. 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. In Kamery, the court applied this doctrine and explained:

Here, there is no dispute that the [First Affidavit of Merit] 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 [Second Affidavit of Merit] within thirty days. Upon learning that [Second Attorney] lacked the requisite five years’ experience by a few months, plaintiff promptly submitted the [Third Affidavit] before the dismissal motion was heard. Plaintiff has clearly established that she took a “series of steps” to comply with the [AOM Statute], that she gave reasonable notice of her claim, and that she generally complied with the purpose of the [AOM Statute], which is to provide early notice of the claim so as to evaluate its viability.

If you believe that you have a legal malpractice claim against a New Jersey or Pennsylvania attorney, contact a Cherry Hill legal malpractice lawyer at Folkman Law for a free case review at 856-354-9444.