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NJ: The Affidavit of Merit "is in the Mail"

 Seldon v. Rebenack, Aronow & Mascolo, LLP, Unpublished, US District Court, DNJ Feb. 15, 2013

NJ Underlying Case: legal malpractice in handling two underlying civil actions 

This is an unreported decision concerning proper service of the affidavit of merit

FACTS: Plaintiff represents himself pro se in this legal malpractice action. Defendants made a motion to dismiss on the ground that plaintiff failed to provide an affidavit of merit. Plaintiff contends that he placed the Affidavit of Merit  that he secured in the mail on October 22, 2012. Defendants claim they never received it. Plaintiff conceded that he put one stamp on the envelope, when it would have required more postage. 

ISSUE:   Did Plaintiff comply with the NJ Affidavit of Merit statute requiring that  he  timely furnish a copy of the Affidavit of Merit to the Defendant?

RULING: No. Although an affidavit of merit was placed in the mail, Defendants are correct that Plaintiffs failed to serve the affidavit of merit.  

Service of notice by mail…is deemed complete when deposited in the postoffice, properly addressed and with the proper amount of postage…Here, Plaintiff concedes that though he deposited the affidavit of merit in the post office, he did not affix the proper amount of postage.  Therefore, the affidavit of merit was not served within i120 days as required by statute. 

LESSON:  It may be "in the mail", but that without proper postage, does not mean it has been furnished pursuant to the Affidavit of Merit statute.


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Posted in: New Jersey