BENJAMIN LEVINE v. RICHARD GROSSMAN, ESQ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0271-08T10271-08T1

BENJAMIN LEVINE,

Plaintiff-Appellant,

v.

RICHARD GROSSMAN, ESQ. and

GROSSMAN & KRUTTSCHNITT, ESQS.,

Defendants-Respondents.

 
 

Submitted September 23, 2009 - Decided

Before Judges Lyons and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3832-07.

Benjamin Levine, appellant pro se.

Martin J. McGreevy, L.L.C., attorneys for respondents (Teresa K. Gierla, on the brief).

PER CURIAM

This is a legal malpractice action. Plaintiff Benjamin Levine (Levine) seeks remedies for putative wrongs that he asserts were committed against him by an attorney assigned to defend him by a medical malpractice insurer in the early 1990s. Defendants Richard Grossman (Grossman) and his law firm Grossman & Kruttschnitt, Esqs. (G&K) successfully moved for summary judgment dismissing Levine's claims on several grounds: 1) issue and claim preclusion, 2) the six-year statute of limitations, N.J.S.A. 2A:14-1, 3) the entire controversy doctrine, R. 4:30A, and 4) failure to comply with the affidavit of merit statute, N.J.S.A. 2A:53A-27. The motion judge also denied Levine's application for disqualification pursuant to R. 1:12-1(f) and -2. After judicious consideration of the record presented to us, we are fully in accord with the disposition in the Law Division. We affirm.

I.

A.

On August 10, 1990, the New Jersey State Board of Medical Examiners (Board) commenced proceedings against Levine that sought to either suspend or revoke his license to practice medicine and surgery. The Board's initial complaint alleged that Levine had engaged in acts of sexual contact upon ten female patients, once in 1978 and continuing from 1985 through May of 1990. A supplemental complaint was filed by the Board on September 7, 1990, which alleged eight additional counts of similar sexual contact upon female patients during the course of medical examination occurring from 1986 through July 24, 1990. Following a hearing before the Board on October 10, 1990, Levine's license was temporarily suspended.

On April 12, 1991, Princeton Insurance Company (Princeton), Levine's then-medical malpractice insurer, agreed to retain Grossman and G&K for the purpose of representing Levine at a plenary hearing before the Board. After months of interaction, on August 17, 1991, Levine and the Board resolved the licensure dispute. Upon Grossman's recommendation, Levine signed a Final Order that provided, among other things, for Levine to pay the Board $20,000 for its costs of investigation. The Final Order also contained a period of license suspension; a requirement that Levine undergo a mental health evaluation and therapy, if indicated; and outlined a procedure for the reinstatement of Levine's license.

Immediately above Levine's signature on the Final Order is the following statement:

I have read and understood the terms and conditions of the within Order and I agree to be bound by them. Consent to the entry of the Order by the Board is hereby given.

Notwithstanding the plain language of the Final Order and Levine's written acquiescence to it, Levine asserts that Grossman "coerced" him into agreeing to the arrangement and signing the Final Order.

Grossman and G&K's representation of Levine for the purposes of the Board's proceedings ended upon the entry of the Final Order, although they still continued to represent Levine through the Princeton assignment in other civil litigation. On August 26, 1992, Grossman wrote Levine:

Please be advised that I have completed my representation of you in connection with the Board of Medical Examiners pursuant to my instructions from the Princeton Insurance Company.

Although the record is somewhat murky, Levine asserts that he completed his period of suspension and subsequently returned to practice medicine in September 1992. He further argues that due to the license restrictions imposed by the Board, his income was severely limited and he was laboring under what he viewed as the punitive effects of the $20,000 repayment of investigation costs to the Board. Levine blames Grossman and G&K for this state of affairs due to Grossman's alleged neglectful and coercive conduct.

B.

On September 6, 1990, Levine was sued in the Law Division for alleged sexual contact during a physical examination. Two other similar civil actions were filed against Levine. Grossman and G&K were assigned by Princeton to defend Levine under a reservation of rights agreement.

On June 9, 1993, Princeton commenced a separate action against Levine seeking a declaratory judgment that it was not obliged to provide him a defense and indemnification because of the malpractice insurance policy's exclusion for criminal acts. This declaratory judgment action joined the plaintiffs who first sued Levine in September 1990. Princeton later commenced two more declaratory judgment actions against Levine and joined the other plaintiffs who had sued Levine for damages stemming from the alleged sexual contact. Grossman and G&K did not represent Princeton in any of the declaratory judgment actions.

C.

On November 6, 1991, Levine was indicted on a total of two counts of second degree sexual assault contrary to N.J.S.A. 2C:14-2(c) and twenty-two counts of fourth degree criminal sexual contact contrary to N.J.S.A. 2C:14-3(b). After a trial in May 1996, Levine was convicted of nine counts of fourth degree criminal sexual contact with female patients. Grossman and G&K did not represent Levine in the criminal proceedings.

The conviction was affirmed on direct appeal. The New Jersey Supreme Court denied Levine's petition for certification on June 27, 2000. Levine's motion for reconsideration of the petition for certification was denied on November 14, 2000. Levine was sentenced to a custodial term in the Middlesex County Correctional Center, which has been served.

D.

Once Levine's criminal travails were finalized, attention returned to Princeton's declaratory judgment actions. On February 5, 2001, Princeton prevailed on a consolidated motion for summary judgment whereby the court declared that the insurer had no obligation to defend or indemnify Levine in any of the three medical malpractice actions that Grossman and G&K were then defending under the reservation of rights agreement.

In April, 2001, Grossman and G&K were granted permission to be relieved as counsel in the three remaining medical malpractice actions that were pending against Levine. Less than three months later, on July 17, 2001, while Levine was acting as attorney pro se, each of those three actions were dismissed with prejudice.

E.

Less than one year after his state civil actions were completed, on June 19, 2002, Levine filed a pro se complaint in the United States District Court for the District of New Jersey against three distinct defendants: State Department of Law and Public Safety-Director of Consumer Affairs Division (State), Princeton, and G&K. Grossman was not expressly named as a party, but his conduct as an attorney was mentioned prominently throughout the complaint. The litany of allegations in the federal complaint flows over eleven counts in a stream-of-consciousness style that we have struggled to decipher.

The State was accused of civil rights violations relating to the Board's implementation of Levine's license reinstatement in 1992 and thereafter. Levine asserted that the State's alleged refusal to abide by the terms of the Final Order was a breach of contract. He sought injunctive relief against the State, as well as other remedies for conduct that related back to the 1991 Final Order.

As against G&K, fairly read, the complaint accused the law firm (and its representative Grossman) of coercion, breach of fiduciary duty, professional negligence, ethical transgressions, dual loyalty, and conspiracy. The factual underpinnings of Levine's claims against G&K involve wrongs that were allegedly done against Levine as early as 1991.

On January 14, 2003, United States District Court Judge Anne E. Thompson entered an order that dismissed, with prejudice, all of Levine's claims. We are advised that there is no written or oral opinion that underscores the order. However, Levine opines that the "Federal District court case was dismissed on Abstention, Failure to Exhaust State Remedies, and the 11th Amendment." He asserts that "[i]t is a dismissal that must be found to be without prejudice." Judge Thompson's order expressly states:

ORDERED that the motions by the State Department of Law and Public Safety Consumer Affairs Division and by Grossman and Kruttschnitt to dismiss the claims against them are GRANTED in their entirety, and it is further

ORDERED that the motion by Princeton Insurance Company to dismiss the claims against it without prejudice is GRANTED.

Levine's appeal to the Third Circuit Court of Appeals and then his petition for certiorari to the United States Supreme Court did not result in the restoration of the claims in the federal complaint. By March 21, 2005, Levine's federal action was over.

F.

Two more years elapsed. Then, Levine filed this legal malpractice action on April 19, 2007. Divided into six counts, the complaint again describes the conduct of Grossman and G&K referring all the way back to 1990. Much like the federal complaint, the initial pleading in this state case is a rambling account of Levine's grievances with Grossman's handling of both the license suspension proceeding and the medical malpractice defenses. Many of the allegations contained in the federal complaint are restated in the state complaint. The allegations of dual loyalty, coercion, professional negligence, and breach of fiduciary duties festoon the complaint. Distilled to its essence, Levine's primary claim revolves around the assertion that Grossman's professional performance was calibrated to further only the interests of Princeton, leaving Levine in the dust. That is, Grossman is accused of facilitating Levine's criminal conviction in 1996 so that Princeton could pounce upon the criminal acts exclusion in Levine's medical malpractice policy. This would allow, and did allow, Princeton to be relieved of the contractual duty to defend and indemnify Levine in the pending medical malpractice cases. Levine also argued that by coercing Levine's consent to the Final Order, Grossman set into motion events that resulted in insurmountable problems relating to Levine's medical license reinstatement years later.

On August 17, 2007, a case management conference was conducted pursuant to the dictates of Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154-55 (2003) to alert Levine to the elements of the affidavit of merit statute. Levine told the managing judge that "the affidavit of merit is impossible to get." He continued, "[n]ot only is it impossible to get, because I don't have the funds to pay these lawyers to do that; but I still believe that it violates my constitutional rights to have access to the Courts."

Shortly thereafter, Grossman and G&K moved for summary judgment on several grounds, including res judicata, statute of limitations, and lack of compliance with the affidavit of merit statute. The motion was denied on October 19, 2007, without prejudice, with the motion judge commenting that in her view, the record was incomplete because there were missing documents she wished to review. Although the judge expressed skepticism about Levine's defenses to the motion, she was unsettled by the absence of: 1) a transcript of the Ferreira case management conference, 2) the summary judgment motion papers in federal court, and 3) Judge Thompson's opinion. In concluding the motion hearing, the judge stated:

And I'm going to deny it without prejudice at this point. I need you to get me that information.

A few months later, the summary judgment motion was re-filed, attaching the Ferreira transcript, the federal motion papers, and a certification stating that, after a diligent inquiry, there was neither a written nor an oral memorialization of Judge Thompson's decision. The renewed summary judgment motion was assigned to a different judge who conducted oral argument and ultimately granted the motion.

When Levine became aware of the identity of the new motion judge, he moved for that judge's disqualification on the ground of the judge's supposed bias against Levine and Levine's wife. The second motion judge had previously dismissed a separate defamation action brought by Levine against a third-party. He also had sanctioned Levine's wife in the amount of $1,500 for filing a meritless reconsideration motion.

The second motion judge addressed the disqualification motion first, finding that Levine had not demonstrated bias or prejudice against Levine. The judge stated:

I see absolutely no basis under existing law for this Court to recuse itself. If the mere fact that a Judge honestly, fairly, impartially rules against a party is cause is egregious bias acts which should then be considered on a prior on a subsequent application on another matter in order to recuse the Judge, if that were the law, then I think that many in many Judges in the judicial system would be handcuffed in terms of disposing of matters that come before them, because many litigat[ors] are in the Court on a regular basis, especially the defense attorneys and the defense bar.

Upon completing his decision-making on this first aspect of the proceedings, the judge allowed the parties to argue the summary judgment motion.

Notwithstanding the understandable reticence of the first motion judge to authoritatively rule on the defendants' motion for summary judgment, the second judge had no reservations. He granted the relief, relying on four grounds:

Number one, I'm going to grant it on the fact that the Federal Court did consider all of these facts. . . .

While I'm talking about that, there's Rule 4:30A. If you have a claim against someone and you sue them in any Court, you're supposed to bring all of your claims. . . .

Number three, the statute of limitations. . . .

Number number three number four rather no. One, two, three would be a very important statute in the State of New Jersey. And I'm going to make a ruling on it even though I'm told that it has already been ruled on, I will rule on it again just in case it wasn't ruled on.

N.J.S.A. 2A:53A-27, affidavit required in certain actions against licensed persons, lawyers are licensed persons. You need an affidavit of merit. The Supreme Court said so.

A final order was entered on August 1, 2008, which dismissed all of Levine's claims. The order denying Levine's motion for disqualification was entered four days later on August 5, 2008. Levine filed his notice of appeal on September 10, 2008.

II.

A.

We find no merit in Levine's appeal from the second motion judge's order of August 5, 2008, refusing to disqualify himself. We are convinced that the judge did not abuse his discretion by denying Levine's wholly speculative motion for recusal. Although the judge had presided over the earlier matter involving Levine and had imposed sanctions upon Levine's wife, that is not a basis for recusal. The sketchy and incomplete record of exactly what transpired in the separate action cannot faithfully support the extraordinary remedy of disqualification under R. 1:12-2. Specifically, we have not been provided with objective details about the separate action, copies of the motions that engendered the adverse rulings, and the judge's expression of reasons for finding against the Levines in the earlier action.

Motions to recuse are governed by both court rules, R. 1:12-1 and -2, and a statute, N.J.S.A. 2A:15-49. A motion for recusal must be made to the judge sought to be disqualified. R. 1:12-2; N.J.S.A. 2A:15-50; Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App. Div.), certif. denied, 77 N.J. 468 (1978). "The disposition of the motion is entrusted to the sound judgment of that judge." Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990); see also State v. Flowers, 109 N.J. Super. 309, 311-12 (App. Div. 1970). If the ground for recusal is subjective, such as bias or other incapacity to sit fairly, the judge ordinarily has the readiest insight into his or her own mind. If the ground for recusal is a problem of appearances (R. 1:12-1(f)), then the judge is in as good a position as anyone to evaluate it.

Here, we find no abuse of discretion. There is no warrant for us to intervene. Panitch v. Panitch, 339 N.J. Super. 63 (App. Div. 2001). If Levine's subjective point of view were enough to trigger a disqualification of a judge, forum shopping could run amok. No litigant would be safe, and the values of fairness and predictability in our courts would be substantially undermined.

B.

As we have frequently observed, an appellate court reviews a grant of summary judgment de novo, applying the same standard that governs the trial court under R. 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The motion judge must determine whether the evidence, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Rule 4:46-2(c) requires a court to grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 528-29. If there is no genuine issue of fact, we then must decide whether the lower court's ruling on the law was correct. Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987). Although the motion judge's expression of reasons was terse, we find that he was substantially accurate in discerning the defects in Levine's causes of action and believe that the cumulative effect of his ruling was proper.

C.

We next consider Levine's grievance that the second motion judge was bound by the first judge's prior ruling under, presumably, the doctrine of the law of the case. Under that doctrine, prior decisions on identical legal issues in the same case should be followed unless the prior decision was clearly erroneous. See State v. Reldan, 100 N.J. 187, 203 (1985) (as a general matter, "decision[s] of law made in a particular case [are] to be respected by all other lower or equal courts during the pendency of that case"); see also Sisler v. Gannett Co., Inc., 222 N.J. Super. 153, 159-60 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988). The doctrine is found in the sound policy that once an issue is litigated and decided in a lawsuit, relitigation of that issue should be avoided if possible. Ibid.

However, "the law-of-the-case doctrine, unlike the doctrine of res judicata, operates as a discretionary rule of practice and not one of law." Brown v. Tp. of Old Bridge, 319 N.J. Super. 476, 494 (App. Div.) (citing Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 179 (App. Div. 1993), certif. denied, 162 N.J. 131 (1999). Moreover, "a denial of summary judgment is always interlocutory, and never precludes the entry of judgment for the moving party later in the case." Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998); see also Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988).

An order denying summary judgment is not subject to the law of the case doctrine because it decides nothing and merely reserves issues for future disposition. See Franklin Med. Assocs. v. Newark Pub. Schools, 362 N.J. Super. 494, 512 (App. Div. 2003); Blunt v. Klapproth, 309 N.J. Super. 493, 504 (App. Div. 1998). Here, there were no procedural or substantive impediments to revisiting defendants' second motion for summary judgment. It was neither unfair nor surprising that the motion was renewed.

D.

We are satisfied that Levine is collaterally estopped from proceeding with this lawsuit, which is premised on allegations and innuendos previously asserted in federal court and found to be baseless. The doctrine of collateral estoppel is "that branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action." Sacharow v. Sacharow, 177 N.J. 62, 76 (2003) (citations omitted); see also State, Dep't of Law and Pub. Safety, Div. of Gaming Enforcement v. Gonzalez, 273 N.J. Super. 239, 254 (App. Div. 1994) (collateral estoppel bars a party from relitigating an issue that a court has previously adjudicated), aff'd, 142 N.J. 618 (1995). Application of the doctrine promotes finality and repose in litigation, prevents needless litigation, and avoids the expense of duplication. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 522 (2006).

Plaintiff cannot relitigate the issues that were unsuccessfully raised in his federal litigation and are merely reframed in a different posture here. His claim that Grossman and G&K were joined for only a limited purpose is belied by his pleadings. The record supports the conclusion that the requisite five-prong test for issue preclusion has been met:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[See id. at 521 (citations omitted).]

E.

The entire controversy doctrine is an equitable principle that requires the parties to a suit to assert "all transactionally related claims" they have against each other and if they do not, they may not bring those claims in subsequent litigation. K-Land Corp. No. 28 v. Landis Sewerage Auth., 173 N.J. 59, 70 (2002) (quoting Pressler, Current N.J. Court Rules, comments 1 & 2 on R. 4:30A (2002)). The doctrine is intended "to encourage comprehensive and conclusive litigation determinations, to avoid fragmentation of litigation, and to promote party fairness and judicial economy and efficiency." Ibid. (quoting Pressler, Current N.J. Court Rules, comments 1 & 2 on R. 4:30A (2002)). Although referenced in the court rules, the contours of the doctrine have been left to case law. Under the entire controversy doctrine, claims must be joined so "that all aspects of the controversy between those who are parties to the litigation be included in a single action." Ibid. (quoting Pressler, Current N.J. Court Rules, comments 1 & 2 on R. 4:30A (2002)).

Further, the Court has noted that:

In determining the appropriate scope of the entire controversy's claim joinder requirement, it is significant that

"the leading cases establishing and applying the entire controversy doctrine as a bar to the subsequent assertion of omitted claims appear to have involved deliberate and calculated claim-splitting strategies designed to frustrate the orderly administration of justice, as opposed to an innocent omission by an uninformed litigant."
 
[Ibid. (quoting Prevratil v. Mohr, 145 N.J. 180, 203 (1996) (Stein, J., dissenting)).]

In this case, to the extent that Levine did not assert claims in the federal suit, he is barred from alleging them here. The failure to assert permissive claims in a federal suit results in their being barred in later litigation in New Jersey under the interpretation of the entire controversy doctrine. See Blazer Corp. v. N.J. Sports and Exposition Auth., 199 N.J. Super. 107, 112 (App. Div.) (holding that a plaintiff must bring all state law claims in his federal suit, and a subsequent suit on the state claims in state court will be barred by the entire controversy doctrine), certif. denied, 101 N.J. 261 (1985); but see Watkins v. Resorts Int'l. Hotel & Casino, Inc., 124 N.J. 398, 412 (1991) (stating that the court in Blazer "may not have sufficiently considered the federal law of claim preclusion in resorting to the entire controversy doctrine").

Levine's argument that his claims against Grossman and G&K only accrued after he filed the federal complaint is not supported in the record. Furthermore, Levine's claims do not implicate the continuing wrong doctrine. Although he claims that he was unable to discern a basis for assigning liability to Grossman and G&K until recently, this bald assertion is undermined by the detailed grievances that he outlined in 2002 when he stepped into the federal arena with G&K. It is of no moment that Grossman individually was not a named party in the federal suit because it was his conduct that formed the basis of Levine's theories of liability against the law firm. Although we recognize the literal difference between suing Grossman's law firm and suing Grossman individually, in the circumstances of this case, to distinguish between the two would exalt form over substance, which is ill-suited to achieving substantial justice.

F.

Levine's claims are time-barred. This action was commenced on April 19, 2007. The six-year look back period therefore commenced on April 19, 2001. The only material event that occurred after that date was Grossman's and G&K's court-sanctioned cessation of representation following the declaratory judgment that determined Princeton's lack of obligations to Levine. Levine's broad-brush approach of equating Princeton with Grossman and G&K does not save the day for statute of limitations purposes. All of the operative events that Levine complains about were plainly known to him more than six years ago. The failure to timely commence an action is fatal to Levine's suit.

The six-year statute of limitations set forth in N.J.S.A. 2A:14-1 applies to legal malpractice actions. McGrogan v. Till, 167 N.J. 414, 420 (2001). Pursuant to the so-called "discovery rule," however, "in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that [s]he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973).

There is nothing persuasive in this record suggesting the application of the discovery rule. Levine was aggrieved by Grossman's and G&K's conduct following Levine's attempt to obtain full reinstatement of his medical license. He knew that Princeton was pursuing its declaratory judgment actions from as early as 1993. Levine has not demonstrated a rational basis to toll or delay the operation of the statute of limitations for the critical period after April 19, 2001. Indeed, it was barely more than one year after that when Levine commenced his federal case. There was nothing left for Levine to "discover" that would implicate the discovery rule. Levine's action is barred by N.J.S.A. 2A:14-1.

G.

The affidavit of merit statute requires a plaintiff to show "that the complaint is meritorious by obtaining an affidavit from an appropriate, licensed expert attesting to the 'reasonable probability' of professional negligence." Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 149-50 (2003) (citing N.J.S.A. 2A:53A-27; Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001)). The affidavit "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." Id. at 150 (citing N.J.S.A. 2A:53A-27; Burns v. Belafsky, 166 N.J. 466, 470-71 (2001)). "[T]he plaintiff's failure to serve the affidavit within 120 days of the filing of the answer is considered tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice." Ibid. (citing N.J.S.A. 2A:53A-29; Palanque, supra, 168 N.J. at 404; Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998)).

In Ferreira, the Court stated that in cases where the affidavit of merit statute applies, the trial court should conduct an accelerated case management conference within ninety days of service of the defendant's answer and, if an affidavit of merit has not been served by that time, the court should remind the parties of the obligations under the statute. Ferreira, supra, 178 N.J. at 154-55.

In this matter, the trial court held a case management conference on August 17, 2007. Levine indicated that he could not afford to obtain an affidavit of merit and did not intend to procure one. On appeal, he further argues that some of the events of which he complains were committed prior to the effective date of the affidavit of merit statute, June 29, 1995. Clearly, events that predate the statute are not covered by its mandate. Christie v. Jeney, 167 N.J. 509, 511 (2001). However, such remote conduct would, as here, be then barred by the statute of limitations.

Levine also argues that he needed discovery materials in order to produce the affidavit of merit. This argument is unsupportable as a matter of fact and law. The purpose of the statute is to weed out meritless claims before commencing suit or very early in the litigation. The use of litigational discovery to fulfill the obligations of the statute would contravene the clear legislative intent to limit actions against licensed persons. See N.J.S.A. 2A:53A-28 (requiring in lieu of an affidavit of merit a statement demonstrating the inability to obtain from defendant the records necessary to prepare the affidavit). Thus, to the extent Levine complains of defendants' actions after June 29, 1995, he fails to state viable claims because of noncompliance with the affidavit of merit statute. As noted already, pre-June 29, 1995 conduct is remote and barred by the six-year statute of limitations.

H.

We have considered the balance of Levine's arguments in light of the record and applicable law. We are satisfied that the arguments are without merit. R. 2:11-3(e)(1)(E). We accordingly affirm the second motion judge's decision to terminate this litigation.

 
Affirmed.

By this date, G&K apparently had become Grossman, Kruttschnitt, Heavey & Jacob, P.C.

Levine argues that the federal action was limited to the issue of the Board's noncompliance with the Final Order. His brief states, "[d]efendants and Princeton were included only due to the fact that they negotiated the Consent Order and refused to pay the penalty negotiated as promised." This limitation is clearly belied by the inflammatory allegations against Grossman and G&K that are recounted in counts 5, 6, 7, and 11.

Among the series of allegations against Grossman's performance in the malpractice cases are the following: Grossman failed to obtain an expert witness in the realm of "False Memory Syndrome" to assist Levine's criminal defense attorney and Grossman failed to discuss Grossman's "feel for the case" with Levine's criminal defense attorney. According to Levine, these were part of an orchestrated effort to ensure Levine's conviction, "for Grossman was intent on protecting the interests of Princeton Insurance."

(continued)

(continued)

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A-0271-08T1

October 15, 2009