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NJ: Affidavit of Merit Statute and Lateness

Stoecker v. Echevarria, 975 A. 2d 975 – NJ: Appellate Div. 2009

Student Contributor: Christine Maharaj

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Facts: Plaintiff brought malpractice claim against defendant (attorney) but served affidavit of merit more than 120 days after defendant’s amended answer. The trial court dismissed plaintiff’s claim for failure to comply with the affidavit of merit statute.

Issue: (1)Did trial court correctly dismiss plaintiff’s claim for failure to comply with the affidavit of merit statute? (2) Do estoppel and laches prevent defendant from raising the affidavit of merit as a defense? (3) Was dismissal of plaintiff’s malpractice claim unwarranted because of defendant’s failure to mention the affidavit of merit or ask the court to establish a deadline at the case management conference?


1. Yes. An affidavit of merit 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. The failure to serve the affidavit within 120 days results in a dismissal of the complaint with prejudice. However, if the plaintiff shows that the failure to timely serve it is due to extraordinary circumstances the complaint may be dismissed without prejudice. The doctrine of substantial compliance may be invoked so that technical defects will not defeat a valid claim. A plaintiff must show: a series of steps were taken to comply with the statute, general compliance with the purpose of the statute, the defendant had reasonable notice of the plaintiff’s claim, a reasonable explanation for the plaintiff’s failure to strictly comply with the statute and lack of prejudice to the defendant. Here the plaintiff’s attorney had the affidavit of merit but did not serve it until more than 120 days after the defendant served an amended answer to the complaint. Plaintiff’s attorney did not provide any explanation for failure to serve it within the required time, therefore there was no showing that the failure was due to extraordinary circumstances. Plaintiff did not establish substantial compliance. Defendant did not have reasonable notice of the legal malpractice claim.

2. No. defendant never led plaintiff to believe she had a viable claim, or sit back while plaintiff while plaintiff was incurring expenses pursuing a claim against her.

3. No. The court directed plaintiff to respond to discovery and serve her expert report prior to the deadline for filing the affidavit of merit. If plaintiff complied with the order prior to the motion to dismiss she could have argued substantial compliance.

Lesson: In order for plaintiff’s failure to timely file an affidavit of merit to be dismissed without prejudice the plaintiff must show that the lateness was due to extraordinary circumstances. Or the plaintiff can invoke the doctrine of substantial compliance. 

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Posted in: Affidavit/Certificate of Merit, New Jersey