SHARAD YAGNIK VS. PREMIUM OUTLET PARTNERS, LP (L-2601-18, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0179-20
SHARAD YAGNIK and
MONA YAGNIK, h/w
Plaintiffs-Respondents,
APPROVED FOR PUBLICATION
v. March 29, 2021
APPELLATE DIVISION
PREMIUM OUTLET
PARTNERS, LP, d/b/a
LIBERTY VILLAGE PREMIUM
OUTLETS, GEO MATRIX
CONSTRUCTION, CORP.,
PETER GIANCOLA AND SONS,
INC., LONGFORD
LANDSCAPES and
EXCAVATION, INC.,
Defendants,
and
PENNONI ASSOCIATES,
INC.,
Defendant-Appellant.
____________________________
Argued February 22, 2021 – Decided March 29, 2021
Before Judges Sabatino, Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-2601-18.
Gary C. Chiumento and Juan C. Perez argued the cause
for appellant Pennoni Associates, Inc. (Chiumento
McNally, LLC, attorneys; Gary C. Chiumento and Juan
C. Perez, on the briefs).
Scott A. Fellmeth argued the cause for respondents
(Saltz Mongeluzzi & Bendesky, PC, attorneys; Larry
Bendesky, Adam J. Pantano, Robert W. Zimmerman,
and Scott A. Fellmeth, on the brief).
Jonathan H. Lomurro argued the cause for amicus
curiae The New Jersey Association for Justice
(Lomurro, Munson, Comer, Brown & Schottland, LLC,
attorneys; Jonathan H. Lomurro, of counsel and on the
brief; Christina Vassiliou Harvey and Alan J.
Weinberg, on the brief).
Anthony Cocca argued the cause for amicus curiae New
Jersey Defense Association (Cocca & Cutinello, LLP,
attorneys; Anthony Cocca and Katelyn E. Cutinello, of
counsel and on the brief).
Lawrence P. Powers argued the cause for amicus curiae
American Institute of Architects-New Jersey, New
Jersey Society of Professional Engineers, American
Society of Landscape Architects-New Jersey, New
Jersey Society of Professional Land Surveyors and the
New Jersey Chapter of the American Society of Civil
Engineers (Hoagland, Longo, Moran, Dunst & Doukas,
LLP, attorneys; Lawrence P. Powers, of counsel and on
the brief; Peter K. Oliver, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
A-0179-20
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We granted leave to appeal in this construction site accident case to
address an unresolved question of New Jersey law. The question is this: When
is an Affidavit of Merit ("AOM") under N.J.S.A. 2A:53A-27, supporting claims
against a licensed professional, due in situations where a plaintiff’s original
complaint is later amended and additional answers or other pleadings are filed?
In the present case, plaintiffs served AOMs (one from an engineer and
another from an architect) more than 120 days after the defendant engineering
firm filed its answer to the original complaint, but before that firm answered an
amended complaint naming another defendant.
Relying in part on several federal decisions interpreting New Jersey law,
the trial court ruled the deadline for an AOM "does not come into play until the
pleadings are [all] settled." Based on that reasoning, the court deemed timely
the two AOMs tendered by plaintiffs more than a year after the engineering firm
had filed its original answer and first amended answer.
For the reasons that follow, we respectfully disagree with the non-binding
federal caselaw cited by the trial court. Instead, we hold the AOM statute's text
and legislative purposes require the affidavit to be served within 60 days
(extendable for good cause to 120 days) from the date when the licensed
professional files its answer, regardless of whether the pleadings are
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subsequently amended to name other defendants or assert additional claims .
That deadline is subject, however, to the long established AOM exceptions for
(1) substantial compliance or (2) extraordinary circumstances.
As we shall explain, extraordinary circumstances are present here and
justify an extension of time to permit the late AOM filing. The circumstances
stem from the parties' early negotiation of a stipulation that dismissed the
engineering firm from the lawsuit without prejudice, based on representations
the firm had no role in the allegedly unsafe condition of the stairs on which
plaintiff was injured. The 120-day AOM deadline expired during the weeks
while the stipulation was being negotiated by counsel, but defendant chose not
to move at that time for a with-prejudice dismissal on that basis.
When ensuing discovery revealed the engineering firm's actual
involvement in designing the stairs, the trial court allowed plaintiffs to reinstate
their malpractice claims against the firm. Plaintiffs then promptly served the
AOMs. Given how events unfolded, the situation justified plaintiffs' delay in
tendering the AOMs.
We therefore affirm the trial court, albeit for slightly different reasons
than were set forth below, and remand the case for further proceedings.
A-0179-20
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I.
The procedural history and still-developing facts are intertwined. For our
purposes we highlight the following details.
On the afternoon of December 16, 2016, plaintiff 1 Sharad Yagnik fell and
injured his right elbow while entering the Liberty Village Premium Outlets in
Flemington. At the time, plaintiff was walking up the stairs through an access
area, which was under construction for improvements but apparently still open
to the public. His trip and fall on the accessway required extensive surgery to
repair his shattered elbow.
Plaintiffs filed a civil action in the Law Division in December 2018,
initially naming as defendants the owner-operator of the shopping outlet, the
contractors for the site, and the present appellant, Pennoni Associates, Inc.
("Pennoni"), an engineering firm that performed certain services for the
construction.2 As is common in construction site accident cases—for which
1
We refer to Sharad Yagnik in the singular as "plaintiff," recognizing that his
wife Mona Yagnik is a co-plaintiff.
2
It is unclear whether Pennoni provided in this project engineering services,
architectural services, or both. Both professions are included within the scope
of licensed professionals covered by the AOM statute. N.J.S.A. 2A:53A-
26(b)(architects); -26(e)(engineers); see also Hill Int'l, Inc. v. Atlantic City Bd.
A-0179-20
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additional responsible parties are often later identified through discovery—
plaintiffs' complaint named several entities and persons as fictitious defendants.
According to plaintiffs' original complaint, one or more of the defendants
used an "off-white color concrete" in constructing the stairs, which was the same
color used in the nearby ramp. The matching color allegedly failed to create a
visual contrast that could aid pedestrians in distinguishing the stairs from the
inclined surface of the ramp, and defendants failed to "ensure handrails were
placed and/or installed at the access point for the shops." Further, plaintiffs
alleged defendants were negligent by failing to "ensure that cone and/or safety
barriers were placed and/or installed around the staircase" while construction
was ongoing.
The Original Complaint Through Stipulation of Dismissal
Notably, the civil case information form accompanying the original
complaint was marked "No" in response to the question "Is this a professional
malpractice case?" Despite that response, plaintiffs alleged in the original
complaint that "Pennoni was contracted to design and/or engineer a new
of Educ., 438 N.J. Super. 562, 571 (App. Div. 2014) (noting the differing but
overlapping expertise of architects and engineers), leave to appeal granted, 221
N.J. 283 (2015), appeal dismissed, 224 N.J. 523 (2016). For simplicity, we shall
refer to Pennoni as an "engineering firm" in this opinion.
A-0179-20
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staircase on the access area on the west side of the Property." (Emphasis added).
Further, the complaint also alleged:
As an architect, Pennoni had a duty to design, maintain,
engineer, fabricate, plan, plot, supervise and/or
establish proper and adequate procedures to ensure that
the construction of the walkways, staircases and means
of access to the shops on the Property could be
completed safely, and to protect and/or otherwise warn
business invitees, such as Mr. Yagnik, of any dangerous
conditions.
[(Emphasis added).]
On January 21, 2019, Pennoni filed an answer to the original complaint.
In the answer, Pennoni asserted numerous defenses, among them an anticipatory
defense that "Plaintiff failed to meet the requirements of the Affidavit of Merit
Statute," despite the fact that the statutory time period for serving an AOM does
not begin to run until the professional's answer is filed. See N.J.S.A. 2A:53A-
27.
Then, on February 8, 2019, Pennoni unilaterally filed an amended answer
to the original complaint. In that amended answer, Pennoni realleged the AOM
defense. Along with that amended answer, Pennoni filed an amended civil case
information form, changing its response to the question "Is this a professional
malpractice case?" to "Yes." Pennoni also moved, without opposition, for an
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order changing the track assignment of the case from Track II to Track III
because of the professional liability nature of plaintiffs' claims agains t it. The
trial court granted that motion, thereby allowing a lengthier 450 days of
discovery as a Track III case.
Meanwhile, plaintiffs' counsel sought to ascertain Pennoni's actual
involvement in the unsafe condition of the premises and served document
demands and interrogatories. On February 8, the same day of Pennoni's
amended answer, plaintiffs' counsel sent an email to Pennoni's counsel saying
he had left a message with his assistant and would "like to see if we can fast
track getting information and documents from your client to see the extent of its
involvement here." Plaintiffs' counsel sent a follow up email on February 27, to
which Pennoni's lawyer responded that he had not yet had a chance to speak
with his clients.
Counsel again exchanged emails on March 13, a date still within the first
sixty days of Pennoni's initial answer. Plaintiffs' attorney said he was "circling
back" to find out if Pennoni's counsel had spoken with his clients and whether
he had obtained any documents "regarding the extent of [their] involvement."
Pennoni's counsel replied a few hours later, with an email that made the
following salient representations:
A-0179-20
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PAI [Pennoni] provided a design for exterior
improvements throughout the shopping center. Their
role during actual construction was limited to 5 site
visits at times/locations selected by the Owner and
would not have included an examination of the
contractor’s means and methods (inclusive of site
control methods). Our review of the site visit dates
suggest that [Pennoni] was not on site for several
months before the date of accident and not again until
several months thereafter. That is, they were not on site
at the time of the accident.
[(Emphasis added).]
One week later, on March 20, plaintiffs' counsel and Pennoni's counsel
had a further conversation, in which they began to pursue negotiations that
eventually culminated in a without-prejudice dismissal of Pennoni from the
lawsuit. Toward that end, Pennoni's counsel emailed plaintiff's counsel the
following:
[C]onfirming our discussion today at which time we
addressed the prospect of a dismissal (even if only
"without prejudice") as a result of an affidavit from my
client which disavowed any involvement in the
contractors' construction means and methods (including
site safety techniques) for the project . . . . I will
explore this prospect with my client as soon as possible.
Pennoni's counsel added that "[i]f we are able to come to an understanding on
this point, we should be prepared to discuss terms and conditions under which
[p]laintiff[s] could reinstate the complaint."
A-0179-20
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With respect to the AOM deadline, Pennoni's counsel's March 20 email
stated: "In the meantime and to avoid . . . unnecessary expense and discovery,
I am willing to consent to an extension of the time from which to provide an
Affidavit of Merit by 2 additional weeks (14 days) beyond the initial 60 day
period following our answer to the complaint."
Thereafter, plaintiffs' counsel sought an update from Pennoni's counsel on
March 28, asking about the status of an affidavit of Pennoni's non-involvement
and for a copy of the contract for the project. He followed up again with an
email on April 2, which read—significantly for our AOM timing purposes here:
[H]aven't heard back from you. Any update? Our
affidavit of merit is due Friday. Thanks.[3]
That same day, April 2, Pennoni's counsel replied by email with more
assurances about extending the AOM deadline, along with these further
representations about the facts:
First, my client is willing to extend any AOM
time deadline as necessary in this matter including and
up to an additional 60 day period beyond the initial 60
day period for a total of 120 days from the date the
original answer was filed in this matter.
3
We infer from the calendar that counsel was referring to Friday, April 5, which
was 74 days after Pennoni filed its original answer and 56 days after Pennoni
filed its amended answer. R. 1:3-1. We are unsure what calculations counsel
was using to compute the perceived AOM deadline.
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More importantly, my client has agreed in
principle to provide an appropriate
affidavit/certification regarding the fact that it was not
responsible for the jobsite safety conditions, was not on
the site at or around the time of Plaintiff's accident and
had no responsibility for regular, routine job site
inspections of any type during construction.
[(Emphasis added).]
Pennoni's counsel specifically proposed:
[My client] would prefer a stipulation of dismissal with
prejudice or, at worst, would be willing to provide a
stipulation without prejudice subject to certain pre-
conditions on the right of Plaintiff to re-instate. I am in
the process of preparing a draft stip[ulation] and a draft
certification for your review.
[(Emphasis added).]
In furtherance of their cooperative discussions, Pennoni's counsel sent to
plaintiff's counsel on April 23 the "construction administration services"
contract.
Then, in a collateral development, plaintiffs filed a motion for leave to file
an amended complaint seeking to add as a defendant Longford Landscape and
Excavation, Inc., ("Longford") based upon the contents of a third-party
complaint against Longford that had been filed by one of the contractor
A-0179-20
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defendants. On May 10, the trial court entered an unopposed order granting
plaintiffs leave to so amend the complaint.
On or about the same day, plaintiffs filed a "first amended complaint"
adding Longford as a defendant. The amended complaint made the same
allegations as to Pennoni as plaintiffs had made originally.
While negotiations about a voluntary dismissal were still pending,
plaintiffs kept seeking discovery from Pennoni. Among other things, plaintiffs
requested documents related to Pennoni's involvement in the construction phase
of the premises, and particularly the staircase on which Mr. Yagnik fell.
Pennoni's responses were not detailed or very informative, generally either
directing plaintiffs to the "project file" or objecting on privilege or other
grounds.
In or about "early" June 2019,4 Pennoni eventually supplied plaintiffs'
counsel with an undated certification from the company's office director, in an
effort to substantiate Pennoni's alleged lack of responsibility for the unsafe
condition that existed on the day of plaintiff's accident. The company official
certified that he had supervised Pennoni's employees on this project.
4
The precise date is not clear from the record.
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Based on his understanding of the contracts, the company official asserted
"it was not the responsibility of [Pennoni] to provide the project jobsite safety
means and methods" and that the scope of the work "did not require [Pennoni]
to . . . be responsible to observe the work or the jobsite safety." He stated that
it was instead the responsibility of the project's contractor and subcontractors to
inspect the job site, ensure that pedestrians could not access the site while
construction was ongoing, and erect any needed barriers or warnings. He further
maintained the contractor and subcontractors were responsible for selecting the
concrete used on the site, except that Pennoni specified only its PSI (i.e.,
pressure) rating.
Echoing what defense counsel had previously represented, the company
official certified that Pennoni was "only responsible to be on the job site on 5
occasions during construction," which did not include jobsite safety review; and
that he was not "aware of any alleged safety issues" prior to the accident.
Relying on these various representations, plaintiffs went forward with a
voluntary dismissal of their claims against Pennoni, through a Stipulation of
Dismissal Without Prejudice mutually executed by counsel on July 2 and filed
with the court on July 10. In that Stipulation, the parties agreed, in pertinent
part, that:
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1. All defenses raised by Pennoni in its Answers to
Plaintiffs' Complaints shall remain in full force and
effect, as of the dates such defenses were originally
raised by Pennoni including, without limitation any
defenses relating to the Affidavit of Merit and/or
Applicable Statute of Limitations or Repose;
...
3. Plaintiffs' grounds for any attempt to reinstate the
Complaint as to Pennoni shall be based solely upon
facts discovered on or after June 1, 2019 which would
conflict with the relevant facts provided in the
certification by Pennoni or relevant facts which would
make said certification inaccurate regarding Pennoni's
scope of work of the project.
[(Emphasis added).]
Pennoni was accordingly dismissed from the case without prejudice. The
remaining parties continued actively with discovery, including document
exchanges and depositions. That discovery uncovered more details about
Pennoni's role in the project, particularly with respect to the design of the stairs
on which plaintiff fell.
Plaintiffs' Motion to Reinstate and Pennoni's Cross-Motion to Dismiss
About nine months after the voluntary dismissal, plaintiffs moved in April
2020 to reinstate their claims against Pennoni. In that motion and supporting
certification of counsel, plaintiffs asserted that "[s]ince the entry of the
Stipulation of Dismissal, discovery has revealed Pennoni's failure to design
A-0179-20
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safety features for the staircase and Pennoni's involvement in the design of those
essential safety features for the staircase after [plaintiff's] accident." The motion
cited to and attached various responses to interrogatories of multiple co-
defendants attesting to the design and engineering services provided by Pennoni,
reflecting an alleged lack of safety features in the original engineering designs.
Among other things, the motion to reinstate was supported by documents
indicating that: the staircase "was constructed in accordance with the plans and
specifications created by Pennoni"; "the work was performed as directed in the
Pennoni site drawings"; Pennoni employees answered questions about the "rise
and run" of the staircase design; Pennoni's original design of the staircase did
not include "handrails" or "stair nosings" for enhanced visibility; and "after the
fall, [Pennoni] realized that they needed to differentiate to give you a visual
where those stairs were."
The motion exhibits further included a "Pennoni Bulletin" (apparently
produced in discovery to another party) from the construction phase, which
stated "[l]andscaping is to slope from curb to steps, thus removing the need for
railings [on the staircase]."
Plaintiffs also presented post-accident change orders issued by Pennoni in
April 2017 authorizing implementation of an amended design. The exhibits
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further included statements by Longford's company president that the "engineer"
(meaning Pennoni) was involved in site inspections and construction safety.
In response to plaintiffs' motion to reinstate, Pennoni filed a cross-motion
to dismiss the complaint for failure to file a timely AOM. In that cross-motion,
Pennoni emphasized that it had raised AOM non-compliance as a defense in
both its original and amended answers.
Furthermore, Pennoni asserted that the purpose of the office director's
certification, filed along with the Stipulation of Dismissal, "was to confirm for
Plaintiffs' counsel that Pennoni, the design engineer for the project, was not
responsible to 'provide the project jobsite safety means and methods.'" Pennoni
argued the certification did not "make any representations . . . with respect to
Pennoni's design/engineering of the staircase . . . other than to verify that
Pennoni did not select the concrete used on the jobsite . . . ." Pennoni also
contended that plaintiffs were fully aware before entering into the July 2019
Stipulation of Dismissal that "Pennoni was the professional designer of the
subject staircase."
In sum, Pennoni argued there were no new relevant facts to justify
reviving plaintiffs' claims, and, additionally, "more than 120 days have now
passed" since the filing of Pennoni's answer to plaintiffs' complaint alleging
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professional negligence, during which time they failed to provide an AOM.
Resting on that premise, Pennoni sought to have the motion to reinstate rejected.
In reply, plaintiffs asserted they had no access to Pennoni's design plans
or modifications made during the construction phase of the project, and had
"absolutely no idea as to why handrails or stair treads were absent" at the time
of the accident. They maintained such facts were not made available to them by
Pennoni, as requested in discovery, and that the information did not come to
light until later discovery responses were filed by other defendants in the case.
Plaintiffs alleged the office director's certification was misleading because it
was not "a full and accurate representation of Pennoni's involvement in the
construction project."
Plaintiffs advised the motion judge they were ready to supply two AOMs
against Pennoni—one from a licensed engineer and another from a licensed
architect. The affiants each attested that from their review of the file, there is a
reasonable probability that Pennoni deviated from applicable standards of care
"with regard to the design, layout, documentation and/or construction
administration of the renovation of the walkways at [the premises] . . . including
the incident stairway."
The Motion Judge's Ruling
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After hearing oral argument, the trial court granted plaintiffs' motion to
reinstate its claims against Pennoni. In the judge's written decision, she noted
plaintiffs' contention that they had been misled in the representations about
Pennoni's role in the project site, and that discovery obtained from other parties
after Pennoni had been let out of the case shed a different light upon the facts.
The judge denied Pennoni's cross-motion to dismiss and its assertion that
the AOMs plaintiffs stood ready to tender were unjustifiably late. In her
analysis, the judge referred to and adopted the reasoning of several federal
decisions, which we shall discuss, infra, in Part II, interpreting New Jersey state
law under the AOM statute. Under the logic of those federal cases, as the judge
put it, the deadline for "the affidavit of merit does not come into play until the
pleadings are [all] settled." Here, the pleadings were not settled because
Pennoni had not yet answered the most recent amended complaint, which had
added Longford as a co-defendant.
The judge found it significant that "[a]t no point prior to th[e] [S]tipulation
[of Dismissal] did Pennoni file an answer to the amended complaint."
Moreover, she noted Pennoni "never filed [before its April 2020 cross-motion]
a motion to dismiss the complaint for failing to file an affidavit of merit," even
though, by the judge's assessment, the AOM had been initially due in March
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2019, sixty days after Pennoni's original answer. As the judge found, plaintiffs
"stand[] ready to serve their [AOMs] on Pennoni, who slept on [its] right to
motion this court for dismissal of the complaint under the [AOM] statute."
This Interlocutory Appeal and The Amici
Pennoni moved for leave to appeal, which this court granted on a limited
basis. Specifically, our order confined interlocutory review to whether the trial
court erred in allowing plaintiffs to serve their AOMs until after Pennoni filed
an answer to the amended complaint adding Longford.
We also invited various amici to participate in the appeal to "address the
general and unresolved legal question of whether an amendment to a complaint
extends the time for the service of an AOM and whether federal case law
interpreting the AOM statute on that question of state law should be adopted." 5
II.
Because we are confronted with an unsettled question of New Jersey law
construing the AOM statute, we review de novo the legal issues posed.
Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366,
5
We appreciate the thoughtful briefs and participation at oral argument of the
amici, who included advocates respectively aligned with plaintiffs' interests and
with defendants' interests. The State Bar Association respectfully considered
but declined our invitation.
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378 (1995); Triarsi v. BSC Group Servs., LLC, 422 N.J. Super. 104, 113 (App.
Div. 2011) (applying de novo review to a legal issue under the AOM statute).
We begin our analysis with the plain text of the AOM statute. In pertinent
part, the statute instructs:
In any action for damages for personal injuries,
wrongful death or property damage resulting from an
alleged act of malpractice or negligence by a licensed
person in his profession or occupation, the plaintiff
shall, within 60 days following the date of filing of the
answer to the complaint by the defendant, 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 may grant no more than one additional period, not
to exceed 60 days, to file the affidavit pursuant to this
section, upon a finding of good cause.
[N.J.S.A. 2A:53A-27 (emphasis added).]
Our focus is on which pleading acts as the operative pleading for counting the
120-day period set forth in this statute. See R. 1:3-1 ("Computation of Time").
The AOM statute refers to "the answer" of the licensed professional to
"the complaint." It does not refer to the "last answer" or the answer to "the most
recent amended complaint." By its literal wording, the statute contemplates the
AOM will be served promptly, specifically within 60 days of the professional's
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answer to the original complaint, extendable for another 60 days upon a judicial
finding of good cause for such an extension. We are obligated to adhere to this
plain language expressed in the statute. State v. Harper, 229 N.J. 228, 237
(2017) (observing that if the law's plain language "clearly reveals the
Legislature's intent, the inquiry is over").
This straightforward interpretation of the statute's wording comports with
the Legislature's well-known main purposes in enacting the AOM statute. As
the Supreme Court has explained, the statute "was designed as a tort reform
measure and requires a plaintiff in a malpractice case to make a threshold
showing that the claims asserted are meritorious." Galik v. Clara Maass Med.
Ctr.,167 N.J. 341, 350 (2001). "It is designed to weed out frivolous lawsuits at
an early stage and to allow meritorious cases to go forward." Ibid. (emphasis
added).
Waiting until the very end of the pleadings stage for an AOM means that ,
in the interim, the licensed professional will have a possibly meritless lawsuit
hanging over its head. During that often-protracted time frame it may have its
malpractice insurance premiums raised or have to expend substantial funds on
counsel fees out of its policy deductible for participating in the litigation. This
is especially of concern in a construction accident case, in which months of
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discovery typically occur before all subcontractors and other potentially liable
parties are identified and the pleadings are repeatedly amended on an ongoing
basis. The public policies that underlie the AOM statute call for prompt
verification that the malpractice claims have been deemed by an expert in the
field to have merit.
We reject plaintiffs' argument that the terms "complaint" and "answer"
within N.J.S.A. 2A:53A-27 must refer to the last-filed complaint and last-filed
answer because amended pleadings generally displace the pleadings that
preceded them. Although we recognize the general proposition of displacement,
see Rule 4:5B-4, the most sensible reading of the AOM statute is that the 120-
day outer deadline ordinarily should be unaffected by revised pleadings that add
other parties and claims to the lawsuit.
For example, here the amendment of plaintiffs' complaint to add as
another defendant the landscaping company, Longford, logically has no obvious
bearing upon whether there is a reasonable basis to claim that Pennoni itself
violated its own professional standards of care. The trial court erred in focusing
on the fact that Pennoni's answer to the amended complaint adding Longford
had not yet been filed.
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We recognize the 120-day outer deadline can be affected by amendments
to a complaint that fundamentally alter an AOM affiant's evaluation of whether
the licensed professional deviated from standards of care. For example, suppose
the original complaint only alleged Pennoni had served as an architect on the
project and had provided faulty architectural plans, but then was later amended
to insert claims that Pennoni had also acted as an engineer and violated
professional standards of engineering. In that scenario, an AOM from an
engineer would not be due until after the complaint was amended in that manner
and a corresponding amended answer was filed. Otherwise, a series of ongoing
amendments to the pleadings generally should not affect the AOM deadline for
each licensed professional that is sued unless a special interdependency is
shown.
Ideally, the defendant-specific deadlines for each licensed professional
named in the lawsuit should be spelled out in a case management order,
following what is known as a "Ferreira6 conference." Even so, the lack or
cancellation of such a Ferreira conference provides no legal justification for an
untimely AOM. Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J.
6
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
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415, 424 (2010) ("At issue here is what effect the failure to hold a Ferreira
conference will have on the time limits prescribed in the statute. The answer is
none."). Hence, in the present case, we do not hinge our analysis on the lack of
a Ferreira conference.
Also, if a plaintiff should need more time to procure an AOM because it
is waiting for the licensed professional to supply documents or other discovery
vital for its proposed expert to review, the plaintiff can file a motion for relief
based on that demonstrated need. See Fink v. Thompson, 167 N.J. 551, 564
(2001) ("We urge counsel to time their discovery – with court intervention if
necessary – so that facts necessary to comply with N.J.S.A. 2A:53A-27 are
available by the statutory deadlines.").
The Federal Cases
The federal cases cited by plaintiffs 7 do not persuade us to adopt a contrary
interpretation of the AOM statute. Several of those cases arose in peculiar or
exceptional settings. We briefly discuss the cases here.
7
The cases are Snyder v. Pascack Valley Hosp., 303 F.3d 271 (3d Cir. 2002);
Costa v. Cnty of Burlington, 566 F. Supp. 2d 360 (D.N.J. 2008); Szemple v.
Univ. of Med. & Dentistry of N.J., 162 F. Supp. 3d 423 (D.N.J. 2016); and Endl
v. New Jersey, 5 F. Supp. 3d 689 (D.N.J. 2014).
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First, in Snyder, the Third Circuit Court of Appeals dealt with an unusual
situation in which the district court clerk's office refused to allow a plaintiff to
file a pleading that affected the AOM timetable and then allowed an answer to
an amended pleading to be filed prematurely. Snyder, 566 F. 3d 271.
The facts in Snyder involved a medical malpractice suit in which the
plaintiff brought a wrongful death action after her husband died of a pulmonary
embolism. Id. at 272-73. The husband's death occurred after becoming ill
during a business trip on February 11, 1999, in New Jersey, where the defendant
doctor incorrectly diagnosed him and released him the same day. Two days
later, the husband entered another hospital where he was correctly diagnosed
with a pulmonary embolism and succumbed to that illness the next day. Ibid.
In September of that year, plaintiff's counsel obtained an expert opinion that
there had been a deviation from acceptable standards in his treatment by the
defendant doctor. Ibid. Following this, in May 2000, plaintiff filed a wrongful
death action alleging medical malpractice. The parties exchanged pleadings,
and the hospital eventually moved to dismiss the claims against it for failure to
file an AOM.
The district court ruled in Snyder that the original answers were the
operative pleadings for calculating the AOM statute's time limit and dismissed
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the claim. Ibid. The district court used that trigger date for the AOM timetable
rather than the hospital's subsequent answer to a second amended complaint.
The Third Circuit reversed. Id. at 272. The court determined that, under
its view of New Jersey law, "the time limit [for the AOM] began to run on the
date that defendant filed his answer to the second amended complaint and,
therefore, was timely." Ibid. The court reasoned that an "amended complaint
supersedes the original version in providing the blueprint" for the case. Id. at
276.
In reaching that result in Snyder, however, the Third Circuit spotlighted
the unusual procedural features of the case:
First, in his opinion dismissing the case, the
district judge determined that the Clerk's Office erred
in failing to accept the second amended complaint when
it was presented on June 29, 2000. Not until August 25,
2000, some two months later, did the Court enter a
Consent Order permitting the second amended
complaint to be filed and that was not accomplished
until September 5, 2000.
Second, the parties had attended a status
conference before a magistrate judge on August 9,
2000. All defendants had copies of the proposed
second amended complaint at that time. Counsel for
the Hospital made it clear that he would file an answer
to the second amended complaint, rather than the first
amended complaint. He did so one week later, on
August 16, 2000, before the magistrate judge had
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signed the Consent Order for the filing of the second
amended complaint. Thus, the Clerk's Office erred
again in accepting an answer before the complaint to
which it responded was filed.
Unquestionably, the errors of the District Court
Clerk affected the orderly progress of the litigation. The
confusion generated by these mistakes should not affect
the plaintiff's right to proceed on a claim that on its face
appears meritorious.
[Id. at 275-76 (emphasis added).]
Given this peculiar chronology, the Circuit Court concluded that it was unfair to
the plaintiff to disallow the AOM she tendered after the hospital's answer was
filed to the second amended complaint.
In Costa, the district court dismissed defendant's motion to dismiss for
failure to file a timely affidavit of merit pursuant to N.J.S.A. 2A:53A -27 as
untimely. In that case, the plaintiff filed a wrongful death action alleging
medical malpractice after the decedent, an inmate at a corrections facility,
contracted and died from an infection while incarcerated. Costa, 566 F. Supp.
2d at 361.
There, plaintiff filed an initial complaint on February 26, 2007, and an
initial AOM on March 20, 2007. Id. at 361. The defendant moved to dismiss
on April 7, 2008, alleging that the doctor who rendered the AOM was not
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qualified to do so, and that it was too late for the plaintiff to obtain a replacement
AOM because more than 60 days had run from the defendant's initial answer.
Id. at 362.
Relying on the Third Circuit's approach in Snyder, the district court in
Costa denied the motion to dismiss. The court reasoned that the defendant's
answer to the second amended complaint was the operative trigger date for the
AOM timetable, and that plaintiff therefore had 120 days from that later date to
file an appropriate AOM. Id. at 362-63.
Further, in Endl, the district court considered AOM timeliness issues in a
case alleging that the decedent, a State prison inmate, had passed away due in
part to the defendants' medical malpractice. Endl, 5 F. Supp. 3d at 692-93. The
court denied the defendants' motion to dismiss for failure to file a timely AOM.
Id. at 705-06.
Although the individual medical defendants in Endl did file an answer to
the plaintiffs' first amended complaint, the court reasoned that the pleading was
not operative for the AOM timetable. Because the case "did not go forward
based on the [first amended complaint], the screening function of the Affidavit
of Merit was not implicated with respect to" the first amended complaint. Id. at
705-06. The court reasoned that because the defendants had not answered the
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second amended complaint but instead had moved to dismiss it, the time limits
of the AOM statute were not triggered. Id. at 706.
Finally, in Szemple, 162 F. Supp. 3d at 428-29, the district court applied
similar reasoning in concluding that an AOM was not untimely. The case
concerned a dental malpractice claim involving a prison dentist who performed
an extraction at the prison's medical clinic and caused major injuries to an
inmate. The defendants moved to dismiss the claim, which the court converted
into a motion for summary judgment, alleging that the plaintiff had not served a
timely and proper AOM. Id. at 425.
The defendants argued that the plaintiff's AOM was inadequate, based
upon an unqualified person having issued it, and because it was inadequate that
the plaintiff failed to file a timely affidavit within the 60-day or maximum 120-
day period allowed by statute. Id. at 429-30. The defendants had filed four
amended answers to the first amended complaint, with the second (the first
operative as to the specific defendant at issue) being filed on July 17, 2014, and
the fourth on August 15, 2014. The plaintiff filed his AOM on November 5,
2014, which was also before the fifth amended answer was filed on January 19,
2016. Id. at 430.
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In determining that the AOM in Szemple was timely, the district court
first reasoned that although the plaintiff had not filed a motion to extend the
statutory time limit from 60 to 120 days, there existed "good cause" to do so.
Id. at 429. Moreover, in calculating the 120-day maximum period, the court
ruled that the operative pleading was the fourth amended answer. The court cited
in this regard to both Snyder and Costa as indicative of a "liberal spirit of the
case law" and supportive of the notion that the AOM clock should run from the
final operative answer to the complaint. Id. at 430. The court observed that such
a wait-until-the-very-last-pleading approach would eliminate uncertainty and
duplication of effort. Ibid.
However, in making this determination, the district judge in Szemple also
acknowledged that "[i]n the end [] the correctness or not of my interpretation
[of the AOM statute] is not critical. The very first answer filed on behalf of
[defendant] . . . , was filed on July 17, 2014. Even counting from that date, the
120 day deadline would have expired on November 14, 2014." Id. at 431. The
court accordingly denied the defense motion for dismissal on the grounds of an
untimely AOM. Ibid.
With all due respect to our fellow judges on the federal bench, we decline
to adopt the expansive approach of these four cases. Our own experience in this
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state court is that the objectives of the AOM statute and the efficient processing
of professional negligence cases—which are litigated more frequently in state
court than in federal court with limited diversity jurisdiction over state tort
actions—is better served by treating a defendant's answer to the original
complaint as the presumptive start to the 60-day/120-day AOM timetable,
subject to recognized exceptions that we now discuss.
Substantial Compliance or Extraordinary Circumstances
Our New Jersey case law has recognized that the AOM statute, despite its
salutary objectives as an initial screening mechanism, should not be enforced so
rigidly that it becomes "a minefield of hyper-technicalities [that] doom innocent
litigants possessing meritorious claims." Ferreira, 178 N.J. at 151 (quoting
Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super. 198, 209 (App. Div.
2000)). The Supreme Court has identified two important exceptions where an
AOM is required,8 that may be established to prevent excessive and unjust
dismissals.
8
The AOM will be unnecessary if the plaintiff's claims against the licensed
professional are founded upon common knowledge, vicarious liability, or other
legal theories that do not implicate the defendant's professional standards of
care. See e.g., Hubbard v. Reed, 168 N.J. 387, 390 (2001) (liability based on
common knowledge); Haviland v. Lourdes Med. Ctr. of Burlington Cnty., Inc.,
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First, the Court has recognized that the 120-day outer deadline may be
relaxed in some situations where a plaintiff has demonstrated "substantial
compliance" with the AOM statute by, say, inadvertently serving an unsigned
affidavit or transmitting it to the wrong recipient. See, e.g., Galik, 167 N.J. at
351-58. This equitable doctrine calls for an examination of whether the plaintiff
has shown "a lack of prejudice to the defending party; a series of steps taken to
comply with the [AOM] statute; general adherence to the purposes of the statute;
reasonable notice of the claim; and a reasonable expectation of why there was
not strict compliance." Id. at 357.
Second, the lack of a timely AOM may be excused in narrow situations in
which a plaintiff demonstrates "extraordinary circumstances" for the
untimeliness. See, e.g., A.T. v. Cohen, 231 N.J. 337, 340-50 (2017) (in which
an "almost perfect storm" of events, including the delayed receipt of records
from the defendant, comprised extraordinary circumstances that justified the late
submission of an AOM); Barreiro v. Morais, 318 N.J. Super. 461, 464-69 (App.
Div. 1999) (in which extraordinary circumstances were shown by the
_ N.J. Super. _ (App. Div. 2021) (holding no AOM was necessary where the
plaintiff sued an employer on a theory of vicarious liability for negligent conduct
by an employee who was not a licensed professional within the scope of N.J.S.A.
2A:53A-27).
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defendant's uncooperative failure to provide a plaintiff with requested discovery
that would have enabled the plaintiff's expert to evaluate the matter and issue an
AOM).
The Extraordinary Circumstances Exception Applies Here
At issue before us is the concept of extraordinary circumstances. We
conclude such circumstances exist here.9
As the motion judge rightly pointed out, defendants did not move to
dismiss the complaint with prejudice once 120 days had elapsed from the filing
of defendants' original answer in January 2019 or, for that matter, their amended
answer in February 2019. Depending on which starting date is used, plaintiffs'
AOM would have been due, assuming a 60-day extension to 120 days, either by
May 21, 2019 or, at the outside, June 8, 2019. The Stipulation of Dismissal was
not filed until July 10, 2019. During the interim, as the motion judge noted,
counsel were mutually focused on cooperatively negotiating a voluntary
dismissal of the complaint. Plaintiffs' counsel expressly raised urgent concerns
in his April 2 email to Pennoni's counsel that his AOM appeared to be due that
9
Because of our determination of extraordinary circumstances, we need not rest
or comment upon the somewhat allied concepts of estoppel and laches asserted
in the briefs of plaintiffs and amicus New Jersey Association for Justice.
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Friday, three days ahead, and received in response an assurance from his
adversary that Pennoni would consent to an extension totaling 120 days from
the date of the original answer. The documents supplied in the record do not
reflect any further written communications between counsel on the subject.
Defendants emphasize that the language of the negotiated Stipulation
preserved Pennoni's defenses to the claims, including explicitly a defense based
on failure to serve a timely AOM. The trial court did not deem that language to
be dispositive and neither do we. By the time the Stipulation was signed and
filed with the court in July, the 120-day outer deadline had already passed. Yet
Pennoni took no action and apparently voiced no assertion to plaintiffs then
about the expiration of time.
An important element of the Stipulation, which is manifest from the
exchange of emails, is that plaintiffs would retain the right to move to reinstate
their claims against Pennoni (albeit on conditions) if further discovery revealed
Pennoni in fact had responsibility for the unsafe condition of the premises. That
right to seek reinstatement would have been illusory if defendants already
possessed a case-dispositive, "slam dunk" basis to declare that plaintiffs were
too late to serve an AOM and powerless to remedy the omission.
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It also must be noted that, even while the negotiations over the Stipulation
were ongoing, plaintiffs' counsel was pressing to obtain documents from
Pennoni, with only moderate success. Furthermore, the certification of non-
involvement tendered by Pennoni's company official, while perhaps accurate for
what it stated, might have reasonably caused plaintiffs to misunderstand the
firm's actual involvement with the project.
To show extraordinary circumstances, it is unnecessary to establish that
an opponent acted in bad faith or deliberately misled a plaintiff. We emphasize
that we absolutely make no such determination here. What appears to have
occurred from the record is that between March 2019 and July 2019 counsel for
both sides were focused—to their mutual credit—on trying to settle their clients'
differences and resolve the claims through a Stipulation of Dismissal that could
have saved both sides additional litigation expenses.
Once it came to light months later that Pennoni had designed the
allegedly-dangerous stairs and could have deviated from related standards of
care, plaintiffs were readily prepared to supply—and did supply—the necessary
AOMs. The trial court did not misapply the statute or the applicable law by
declining to dismiss their revived claims.
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In sum, although we do not endorse the federal cases that partially guided
the trial court, we affirm the court's grant of plaintiffs' reinstatement motion and
its denial of Pennoni's cross-motion for dismissal. See State v. Armour, 446
N.J. Super. 295, 310 (App. Div. 2016) (an appellate court may affirm judgment
or order on different grounds than set forth below).
Affirmed. The interlocutory appeal is concluded and the matter is
remanded for further proceedings.
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