Prosser v. Zeldin, 2010 WL 5392707
NJ: Underlying Divorce; Affidavit of Merit
Student Contributor: Mordechai Buls
FACTS: Defendant represented plaintiff in a divorce proceeding for a marriage in which the ceremony was performed in Ocho Rios, Jamaica. In the divorce case Plaintiff claimed that since there was no valid license, the marriage was not legal. The court rejected this claim stating that a lack of license doesn’t prove the marriage was illegal when there are other circumstances presented during the proceedings that would establish the marriage. Plaintiff settled on the first day of trial.
Subsequently, the plaintiff filed a malpractice suit against the defendant lawyer claiming that he coerced the plaintiff to accept the terms of the settlement and that throughout the proceedings Plaintiff kept telling the defendant that there was no public record of a valid marriage license. When the plaintiff failed to submit an affidavit of merit even after a three-week extension the court dismissed the complaint with prejudice. On appeal, l the plaintiff claimed that an affidavit of merit was not required since the act was “blatant and a matter of common sense”.
Issue: Does the Plaintiff need to submit an affidavit of merit in this case?
Ruling: Yes. A condition precedent to maintaining a claim for legal malpractice against an attorney is an affidavit of merit. Although an exception is made where the claimed malpractice involves matters of common knowledge, which refers to the ability of the jury to resort to “ordinary understanding and experience, to determine a defendant’s negligence”. This case is different since validity of a marriage is determined by the laws of the jurisdiction where it was performed and Jamaica’s marriage laws are not common knowledge in New Jersey.
Lesson: When suing an attorney for malpractice in New Jersey always err on the side of caution and get an affidavit of merit.
Tagged with: Affidavit, blatant, common, Divorce, Expert Witnesses, family, Family Law, Jersey, knowledge, law, license, marriage, matter, Merit, New, New Jersey, sense, Standard of Care
Posted in: Expert Witnesses, Family Law, New Jersey, Standard of Care