Readers of PL Matters know that most states now require some form of affidavit of merit in professional malpractice claims. (Check out our handy Table for a state-by-state compendium.) In certain jurisdictions, the AOM is a prerequisite for malpractice lawsuits, as failure to timely file can result in dismissal and possibly another malpractice suit. It is the rare case where there is a justifiable excuse for not timely filing an AOM, and the following case is no exception.
In Garnter v. Rifflard, the New Jersey appeals court rejected plaintiffs’ claims that their failure to timely file an AOM in their legal malpractice action was excused because it was due to the defendant lawyer’s alleged withholding of documents.
The lawsuit arose out of plaintiffs’ purchase of a home in “as-is” condition. After plaintiffs closed on the home, they noticed serious structural defects and brought suit against their attorney who represented them in the transaction and others to recover damages arising from the purported concealment of known defects.
The defendant attorney moved to dismiss the malpractice claim, arguing plaintiffs failed to comply with New Jersey’s AOM statute because they did not serve an AOM within the 120-day statutory period. One month after the 120-day statutory period expired, plaintiffs served the requisite AOM and opposed the motion to dismiss. Plaintiffs argued that they had requested documents for the purpose of obtaining an AOM, but the defendant attorney had not complied with their requests. The trial court granted the motion and denied plaintiffs’ subsequent motion for reconsideration.
On appeal, plaintiffs conceded that they filed the AOM past the statutory deadline but claimed that because the defendant attorney hindered their efforts to obtain an AOM, and because they ultimately did file an AOM, they substantially complied with the AOM statute. The appeals court rejected the argument finding that the plaintiffs failed to establish substantial compliance; i.e. “a reasonable explanation why there was not strict compliance with the statute.”
While the plaintiffs focused on the alleged failure to respond to their request for documents, they ignored the statute’s clearly defined remedy for the precise scenario. The New Jersey AOM statute also provides that where a defendant improperly frustrates a plaintiff’s ability to provide an AOM, the plaintiff may provide a sworn statement in lieu of the AOM setting forth that the defendant has failed to provide information having a substantial bearing on preparation of the affidavit. Plaintiffs offered no explanation for the failure to file a sworn statement and as such the court found they could not argue that they substantially complied with the statute in order to avoid the dismissal.
The case serves as a good reminder that knowing the requirements of the AOM statute in your jurisdiction is a critical element in successfully litigating any malpractice suit. Recognizing when a party has failed to comply with the requirements and timely raising the defense can put an end to the litigation at the outset. Conversely, failing to comply with the statute is rarely excusable and extra caution should be taken to avoid adverse outcomes as demonstrated above.