Prosser v. Zeldin, NJ App. Div., December 30, 2010.
Facts: Plaintiff filed suit against his attorney in the underlying divorce action. Plaintiff alleged he was "coerced into agreeing" to the divorce settlement and that "[d]uring the entire divorce process [he told Zeldin] that there was nothing in [a] public record that served as a legal document to confirm that there was a legal marriage."
Issue: Was an Affidavit of Merit necessary to proceed with the legal malpractice claim?
Ruling: Yes. The Appellate Division first explained:
A condition precedent to maintaining a claim for legal malpractice against an attorney licensed to practice law in this state is the requirement that a plaintiff file an affidavit of merit in accordance with N.J.S.A. 2A:53A-27, which provides in pertinent part:
In any action for damages for personal injuries . . . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall . . . 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 then held that in the context of a divorce proceeding, the fact of a marriage between parties may be established by testimony of the parties or other extrinsic evidence. Further, knowledge and understanding of the proofs necessary to substantiate allegations in a divorce complaint is not a matter of common knowledge to the average juror. Accordingly, it affirmed the trial court’s decision to dismiss with prejudice.
Lesson: Err on the side of obtaining an Affidavit of Merit, or risk dismissal with prejudice.