ROBERT ROCCO MOROSINE v. JERRY BOORSTEIN, D.O

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3038-09T3

ROBERT ROCCO MOROSINE and

KATHLEEN A. MOROSINE,

Plaintiffs-Appellants,

v.

JERRY BOORSTEIN, D.O.,

Defendant-Respondent.

______________________________________________

October 7, 2011

Argued February 9, 2011 - Decided

Before Judges R. B. Coleman and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4499-09.

Elise Alpert and Eleanor Vale, of the New York bar, admitted pro hac vice, argued the cause for appellants.

Russell J. Malta argued the cause for respondent (Martin J. McGreevy, LLC, attorneys; Mr. Malta, on the brief).

PER CURIAM

Plaintiffs Robert "Rocco" and Kathleen A. Morosine appeal from the dismissal of their medical malpractice complaint for failure to satisfy the requirements of the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29. We affirm.

On July 29, 2008, plaintiffs filed a complaint, Monmouth County Docket No. L-3551-08 (first complaint), against defendant, Jerry Boorstein, D.O., alleging medical malpractice relating to the prescription of medicine which allegedly exacerbated asthmatic, bronchial and other conditions from which plaintiff Robert Rocco Morosine suffered. In an answer dated October 30, 2008, defendant denied or alleged insufficient information to admit or deny the allegations of plaintiffs' complaint. Subsequently, on December 23, 2008, fifty-four days after defendant's answer, plaintiffs filed an un-notarized statement of their expert, Austin J. Gerber, D.O. The expert swore on his professional oath. According to plaintiffs' counsel, the Affidavit of Merit was not notarized because the doctor was busy and did not understand the legal ramification. Thereafter, defendant moved to dismiss the complaint, arguing the Affidavit of Merit was insufficient. On April 17, 2009, 169 days after the answer, the unopposed motion to dismiss was granted, and plaintiffs' complaint was dismissed with prejudice, "for failure to file a properly conforming Affidavit of Merit pursuant to N.J.S.A. 2A:53A-27."

On May 13, 2009, plaintiffs moved to vacate the April 17, 2009 order and reinstate their complaint. In support of their motion, plaintiffs asserted that defendant's moving papers were never served upon their attorneys. At oral arguments conducted on June 26, 2009, the court agreed to "vacate the original order and . . . look[] at it ab initio[.]" Thus, the court vacated the prior dismissal but permitted defendant to renew his motion to dismiss, which was adjourned to allow both parties to supplement the record and call to the court's attention any further legal authority they felt supported their respective positions. At the close of oral arguments, counsel for plaintiff described the circumstances surrounding the submission of the Affidavit of Merit. Counsel stated:

I was in charge of getting the affidavit signed, and I made a legal decision that I either was going to get it was during Christmas. It was the circumstances around these is very important because the physician was very busy, as most physicians are. It was Christmas time, and I made a decision. Either I'm getting it in before the statute expires, or I'm getting it in without an so, I Your Honor, in all fairness, I want you to be aware I didn't hand it in, in a blind, you know, vacuum.

I was fully aware of the affidavit of merit argument. Fully aware that we were going to come up with an opposition. I spoke to the clerk downstairs, and I said, you know, I cannot get this notarized in time. I don't want to blow the statute.

So she she said, I can't offer legal advice, but if you're dealing with statute problem and [co-counsel] was away on vacation. I couldn't reach her in Bermuda or

. . . .

[Co-counsel] was away on vacation. So, I made the decision. I blame myself for it, and I knew I would have to fight it.

Thereafter, on July 23 and July 27, 2009, the court entered an order and amended order, respectively dismissing plaintiffs' complaint for failure to supply an Affidavit of Merit as required by N.J.S.A. 2A:53A-27; the orders did not state whether the dismissal was with or without prejudice.

On September 15, 2009, plaintiffs filed a second complaint, Monmouth County Docket No. L-4499-09, and defendant promptly moved to dismiss that complaint based on res judicata. A November 6, 2009 hearing was held to determine if the prior dismissal was with or without prejudice. At that hearing, plaintiffs argued that the dismissal of their complaint had been without prejudice; that they had not received a Ferreira1 conference and that defendant had waived his right to object to the Affidavit of Merit. The matter was adjourned to allow the parties to make further submissions and to allow the court to consider further the issues raised.

On December 24, 2009, without additional oral argument, the court determined that the dismissal of plaintiffs' complaint was with prejudice. The court wrote on the order in longhand that "This complaint is dismissed with prejudice since the complaint under Docket No. L-3551-08 [the first complaint] should have been dismissed with prejudice in the July 27, 2009 order. See Tunia v. St. Francis Hosp., 363 N.J. Super. 301 (App. Div. 2003)[, certif. denied, 179 N.J. 311 (2004)]."

This appeal ensued, centered on the dismissal of the complaint for failure to provide a sufficient Affidavit of Merit under N.J.S.A. 2A:53A-27. That section of the Affidavit of Merit statute requires that, in a medical malpractice case,

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.

Since plaintiffs' appeal does not dispute the material facts and is based on the claimed erroneous application of N.J.S.A. 2A:53A-27 by the motion court, our review of the court's determination is plenary. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In addressing whether failure to comply with the "affidavit requirement" of the Affidavit of Merit statute required a complaint be dismissed with prejudice, the Supreme Court has instructed that a court should dismiss a complaint without prejudice only under "extraordinary circumstances." Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998).

In its ruling on defendant's motion to dismiss plaintiffs' complaint, the motion court relied explicitly on our decision in Tunia. In Tunia, we addressed whether a plaintiff may file an affidavit without a notary's jurat to evidence that the notary placed the affiant under oath. Supra, 363 N.J. at 306. We observed "the failure to place a declarant under oath [is not] a mere technical deficiency. . . . [I]t goes to the very nature of what an affidavit is." Id. at 306. We reaffirm that observation.

We are also not persuaded by plaintiffs' assertion that Tunia is substantively and factually distinguishable. Plaintiffs point out that in Tunia, a compliant Affidavit of Merit was never submitted, while in this case, plaintiffs belatedly filed a compliant affidavit on April 27, 2009. Plaintiffs argue, therefore, the issue before the motion court on June 26, 2009 was an issue of timeliness, which was not addressed by our decision in Tunia. We do not find that distinction to be valid.

At the June 26, 2009 hearing on reconsideration of the unopposed dismissal of plaintiffs' first complaint, plaintiffs acknowledged that the expert's affidavit was not notarized, and that counsel had made a "legal decision" to submit it "before the statute expire[d]." Plaintiffs' counsel explained "I was fully aware of the affidavit of merit argument. Fully aware that we were going to come up with an opposition." In spite of that awareness, counsel elected to submit the affidavit without notarization. Plaintiffs argue that to the extent the issue before the court was one of timeliness, they should have been allowed to submit the affidavit nunc pro tunc. We are not persuaded by that argument.

Nor are we persuaded by plaintiffs' claim of estoppel. In Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 148 (2003), the plaintiff's counsel had the Affidavit of Merit but, because of a clerical error at the firm, counsel did not timely serve the affidavit. Defendants moved to dismiss plaintiff's complaint after receiving the untimely affidavit. Ibid. The trial court dismissed the complaint and we affirmed, but the Supreme Court reversed, finding defendants were precluded from moving to dismiss when an untimely affidavit precedes such a motion. Id. at 148-49. The Court ruled:

In a case where the plaintiff has in hand an affidavit within the 120-day statutory period and serves the affidavit on defense counsel outside that time frame but before defense counsel files a motion to dismiss, the defendant shall not be permitted to file such a motion based on the late arrival of the affidavit.

[Id. at 154.]

The Court in Ferreira stated that a defendant should be estopped from moving to dismiss a complaint if the plaintiff submitted an affidavit outside the 120-day period but before the defendant's motion. Ferreira, supra, 178 N.J. at 154. On the other hand, "[i]f defense counsel files a motion to dismiss after the 120-day deadline and before plaintiff has forwarded the affidavit, the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance and extraordinary circumstances do not apply." Ibid.

Here, plaintiffs knowingly filed an un-notarized Affidavit of Merit on December 23, 2008. Defendant filed a motion to dismiss sometime prior to April 17, 2009, the date of the order of dismissal. Plaintiffs did not obtain a signed and notarized Affidavit of Merit until April 27, 2009 179 days after defendant's answer. Therefore, the court appropriately dismissed the complaint with prejudice, absent substantial compliance or extraordinary circumstances. See Ferreira, supra, 178 N.J. at 154; Tunia, supra, 363 N.J. at 306.

Plaintiffs next argue that their first complaint was or should have been dismissed without prejudice and, therefore, res judicata was wrongly applied to their second complaint. Plaintiffs further argue that N.J.S.A. 2A:53A-29 does not require the dismissal of a complaint for an insufficient Affidavit of Merit to be with prejudice, however, as the Court in Cornblatt declared, "[A] dismissal under the statute based on a violation of the affidavit requirement would be without prejudice only if there are extraordinary circumstances. Absent extraordinary circumstances, a failure to comply with the statute that requires a dismissal would be with prejudice." Cornblatt, supra, 153 N.J. at 247.

Here, the motion court rightly relied on our holding in Tunia and determined that plaintiffs' Affidavit of Merit did not comply with the requirements of N.J.S.A. 2A:53A-27. Neither did the court err in dismissing the second complaint based on the fact that plaintiffs' first complaint was, or should have been, dismissed with prejudice as required by Cornblatt.

Plaintiffs argue res judicata does not apply to their case because the motion court, instead of dismissing their second complaint based on that ground, only decided to sort through the perceived procedural "mess" to determine whether the first complaint should have been dismissed with or without prejudice. The court explained its approach in deciding the issues as follows:

Because this case is a mess. I mean snake bit is a nice way to put it. Part of it started with not serving, but there was not notice you know, part of what we have to do here is to take a look at what the case law is and try to do the right thing. And I'm not sure what that is because of the procedural way in which this came about. And you're sort of blind-sided because of the procedural history and the fact that we didn't know that the argument being made had to do with and this argument would either be made here or in the Appellate Division.

So it's you know, my thought is it probably makes more sense for me to actually tackle it and if I'm still going to decide it's a dismissal with prejudice, at least there's a record. I would hate for the Appellate Division to get this record the way it is right now. I don't think they could make head nor tails of it because it is so convoluted.

Giving further insight into her analysis, the motion judge explained: "If it's a dismissal without prejudice, clearly, I don't I'm not going to worry about res judicata. If it's a dismissal with prejudice, then I think the next level is an appeal and the granting of the defendant's motion."

Plainly, the court was less concerned with labels and more concerned with whether the dismissal of the first complaint was with or without prejudice. The judge did take a fresh look at that decision and did not regard herself as being bound or constrained by her prior decision. She said she was considering the motion to dismiss "ab initio." Ultimately, the court determined that the first complaint should have been dismissed with prejudice. We agree.

In that regard, we note that "[t]he doctrine of res judicata 'contemplates that when a controversy between parties is once fairly litigated and determined it is no longer open to relitigation.'"2 Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989) (quoting Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960)). In this case, plaintiffs' complaints are, for all substantive purposes, identical. At the heart of the matter is the Supreme Court's articulation of the essence of a violation of the Affidavit of Merit statute in Cornblatt:

The Affidavit of Merit [statute] provides that "[i]f the plaintiff fails to provide an affidavit or a statement in lieu thereof . . . it shall be deemed a failure to state a cause of action." A dismissal pursuant to the Affidavit of Merit [statute] does not fall within the exceptions to the general rule of a dismissal with prejudice under the Rules of Court because a dismissal for "failure to state a cause of action" is not a dismissal provided for by Rule 4:37 nor is it a jurisdictional dismissal. A dismissal for failure to submit an affidavit of merit is a violation of a statute rather than a court-imposed rule or order. The violation giving rise to the dismissal goes to the heart of the cause of action as defined by the Legislature.

[Cornblatt, supra, 153 N.J. at 244 (internal citations omitted).]

Because the plaintiffs' two complaints were essentially identical, dismissal of the first complaint for lack of compliance with the Affidavit of Merit statute is an adjudication on the merits that properly precluded plaintiffs' second complaint.

As to plaintiffs' claims that there are extraordinary circumstances warranting reversal, we recognize that "[w]here extraordinary circumstances are present, a late affidavit will result in dismissal without prejudice." Paragon Contrs., Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422-23 (2010). However, here the asserted extraordinary circumstances are that (1) the declarant was busy, (2) the affiant did not properly notarize his affidavit and (3) Christmas was close to the deadline for submission of the affidavit. No explanation is given as to why the affidavit was not notarized after the Christmas season but before the February expiration of the 120-day period following the answer.

Notably, the holiday recess is not an extraordinary circumstance; to the contrary, it is quite ordinary and happens every year at the same time. Moreover, the declarant's busy schedule did not excuse plaintiffs' counsel from requesting an extension to file the Affidavit of Merit under N.J.S.A. 2A:53A-27. The statute permits the court to "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." As the Court has explained:

Under the statute, an affidavit should be filed within sixty days of the filing of the answer. N.J.S.A. 2A:53A-27. However, if provided within sixty-one to 120 days after the answer is filed, the affidavit will be deemed timely so long as (1) leave to file is sought and (2) good cause is established. Burns v. Belafsky, 166 N.J. 466, 475-77 (2001). Attorney inadvertence is considered good cause within that sixty-one to 120-day period. Id. at 478.

Neglecting to provide an affidavit of merit after the expiration of 120 days has different consequences and generally requires dismissal with prejudice because the absence of an affidavit of merit strikes at the heart of the cause of action. Cornblatt, supra, 153 N.J. at 247.

[Paragon, supra, 202 N.J. at 422.]

Thus, counsel could have requested an extension to file a properly notarized Affidavit of Merit within the 120-day period. Counsel failed to do that.

Plaintiffs also argue that their counsel expended extraordinary effort in attempting to get a compliant affidavit. Assuming such "good faith efforts" were made, a compliant affidavit was not submitted until almost two months beyond the 120-day extension deadline. Plaintiffs' counsel was not beholden to a single doctor for this Affidavit of Merit and could have asked another within the identified specialty. The Court has stated, "Although we have yet to define the full scope of extraordinary circumstances as an equitable remedy for failure to comply with the statute, we do know that attorney inadvertence is not such a circumstance entitling plaintiff to a remedy of dismissal of a complaint without prejudice." Ferreira, supra, 178 N.J. at 152.

Plaintiffs urge that we should follow Watts v. Camaligan, 344 N.J. Super. 453 (App. Div. 2001), which addressed a similar certification provision, N.J.S.A. 39:6A-8(a), under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -32. Id. at 460. However, in Watts, we distinguished the certification requirements of AICRA from the affidavit requirements of the Affidavit of Merit statute, stating

The certification is a collateral pleading without which a plaintiff is precluded from continuing to prosecute an action. The requirement is procedural in nature related to the sufficiency of the pleadings, i.e. the statement of a claim. The required production is not intended to go to the establishment of a cause of action. We conclude that the failure to comply with the physician certification requirement of AICRA was not intended by the Legislature to preclude future suits for legitimate injuries sustained as the result of another's negligence.

[Watts, supra, 344 N.J. Super. at 466-67.]

Plaintiffs argue they should not be blamed for the doctor's or counsel's inadvertent mistakes. We recognize the doctor failed to have the affidavit properly notarized and the attorney elected to file it as received, but as explained above, plaintiffs' appear to have had ample opportunity to correct the deficiencies within the statutorily permitted time and failed to do so.

Plaintiffs contend that defendant's counsel dealt with them unfairly and for that reason should have been equitably estopped from moving to dismiss the second complaint. More specifically, plaintiffs take exception to defendant waiting approximately 115 days after their submission of the noncompliant affidavit of merit before defendant moved to dismiss for failure to provide a sufficient affidavit. The Supreme Court provides the appropriate caveat:

The Affidavit of Merit statute was intended to flush out insubstantial and meritless claims that have created a burden on innocent litigants and detracted from the many legitimate claims that require the resources of our civil justice system. The statute was not intended to encourage gamesmanship or a slavish adherence to form over substance. The statute was not intended to reward defendants who wait for a default before requesting that the plaintiff turn over the affidavit of merit.

[Ferreira, supra, 178 N.J. at 154.]

We, therefore, accept that defendant's delay in moving to dismiss the complaint until after the 120-day period normally may imply a level of gamesmanship and possibly warrant a court-imposed equitable remedy. However, in this case, plaintiffs' counsel was fully aware the affidavit did not comply with statutory requirements and "expected opposition." We therefore do not perceive any inducement by or reliance on defendant's delay.

Plaintiffs suggest that it is suspicious, given the "fair amount of correspondence" between the parties, that defendant failed to properly address the initial notice of motion to dismiss, thus, depriving plaintiffs of proper notice. First, the statute, not defendant's motion to dismiss, should have been the impetus for plaintiffs to obtain and file a proper Affidavit of Merit. Second, plaintiffs' counsel was already aware, before filing, that the affidavit did not comply with the statutory mandate. Plaintiffs' counsel's continued complacency following the submission of the un-notarized Affidavit of Merit outweighs any wrongdoing imputable to defendant for delaying in moving to dismiss the complaint.

Significantly, plaintiffs argue they were not given a Ferreira conference and that this was an extraordinary circumstance. Such a conference is a judicially-created tickler system to remind parties about critical filing dates, but "the absence of a Ferreira conference cannot toll the legislatively prescribed time frames." Paragon, supra, 202 N.J. at 425. Because the omission of a Ferreira conference does not toll the deadline for submission of a compliant Affidavit of Merit, the failure to hold a conference in this case does not qualify as an extraordinary circumstance. The fact that plaintiffs' counsel knew their affidavit was un-notarized changes the tone of this case from a simple error to a "legal decision" not to comply with the statute.

Finally, we recognize that since the date of oral arguments on this appeal, our Supreme Court has addressed and expanded the procedural safeguards that are intended to encourage the timely filing of affidavits. Thus, in addition to requiring the Ferreira conference in order to resolve questions concerning the propriety of an affidavit before the end of the statutory time limit, the Court in Buck v. Henry, ___ N.J. ___,___ (2011) (slip op. at 33), directed that "[f]rom this point forward [from August 22, 2011], a physician defending against a malpractice claim (who admits to treating the plaintiff) must include in his answer the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty."

In Buck, the Court reversed a determination by the Law Division, which we had affirmed, that affidavits of merit from a psychiatrist and another from a specialist in emergency medicine, were not from equivalently credentialed physicians where the defendant, though he was board certified in emergency medicine, had acted as a specialist in family medicine when he prescribed the medications for plaintiff that allegedly contributed to the incident whereby plaintiff had accidentally shot himself. Unlike Buck, in this case, there is no confusion as to defendant's field of specialty. Defendant was an osteopath, who was involved in that field of specialty, and plaintiffs' proposed expert was likewise an osteopath. Thus, the added safeguard directed by the Court in Buck would not have made a difference in this case.

Affirmed.

1 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). In Ferreira, the Court stated, "[W]e propose that an accelerated case management conference be held within ninety days of the service of an answer in all malpractice actions." Id. at 154. In Paragon Contractors, Inc. v. Peachtree Condominium Assoc., 202 N.J. 415, 426 (2010), the Court stated, "[L]awyers and litigants should understand that going forward, reliance on the scheduling of a Ferreira conference to avoid the strictures of the Affidavit of Merit statute is entirely unwarranted and will not serve to toll the statutory time frames."

2 The Cornblatt Court observed that

a dismissal for failure to state a claim is an adjudication on the merits entitled to res judicata effect. Like the dismissal addressed in Velasquez [v. Franz, 123 N.J. 498 (1991)], a dismissal under the Affidavit of Merit [statute] involves a failure to comply with the statute that the plaintiff cannot cure merely by amending the complaint. Non-compliance does not inhere in the complaint but in the failure to satisfy the essential, collateral affidavit requirement. The plaintiff would be prohibited by res judicata based on the Court's ruling in Velasquez from filing a new but identical claim.

[Cornblatt, supra, 153 N.J. at 246 (citation omitted).]