ANASTASIOS JEANNIDIS VS. DAVID DE CLEMENT (L-1575-16, GLOUCESTER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 17, 2020
• Docket: A-1381-18T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1381-18T3

ANASTASIOS JEANNIDIS,

Plaintiff-Appellant,

v.

DAVID DE CLEMENT,

Defendant-Respondent.

Argued telephonically June 24, 2020 – Decided July 17, 2020

Before Judges Accurso and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L- 1575-16.

Anastasios Jeannidis, appellant, argued the cause pro se.

John T. Ambrosio argued the cause for respondent (Ambrosio & Associates, LLC, attorneys; John T. Ambrosio, on the brief).

PER CURIAM Anastasios Jeannidis appeals from a September 14, 2018 order

dismissing his complaint against attorney David De Clement with prejudice for

failure to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-26

to -29, and an October 26, 2018 order denying his motion for reconsideration.

Because plaintiff failed to file his affidavit within the extended 120-day period

permitted by statute, we affirm.

Plaintiff filed his complaint for legal malpractice and breach of fiduciary

duty in late 2016, alleging defendant made distributions from his attorney trust

account prior to a third-party having posted a standby letter of credit as agreed.

Plaintiff apparently had difficulty serving the complaint, and service was only

accomplished after plaintiff obtained an order for substituted service in

December 2017. Following the denial of defendant's motion to dismiss, he

filed an answer on April 9, 2018, including a five-day demand for a statement

of damages pursuant to Rule 4:5-2 and a sixty-day demand for an affidavit of

merit.

Plaintiff responded with a statement of damages, but failed to file an

affidavit of merit within sixty days of defendant's answer. On June 12, 2018,

defendant's counsel wrote to plaintiff, who is self-represented, advising that

A-1381-18T3 2 his affidavit of merit was overdue, and if not received within seven days that

defendant would file a motion to dismiss the case with prejudice.

Defendant filed a motion to dismiss for plaintiff's failure to comply with

the statute on August 1, 2018. Judge Chell granted the motion on September

14, finding the affidavit plaintiff tendered on September 13 was untimely, even

had plaintiff requested and received a permitted sixty-day extension, which he

had not done.

Plaintiff moved for reconsideration, contending the court had failed to

consider the affidavit of merit he filed with the court on September 13, that he

had demonstrated excusable neglect for not serving the affidavit sooner, and

that the drastic sanction of dismissal was not warranted. Judge Chell denied

the motion. He explained he had considered the affidavit submitted but found

it was filed beyond the time permitted by statute and that none of the

established exceptions excusing compliance applied, mandating dismissal of

the complaint.

Plaintiff appeals, contending the trial court erred in dismissing his

complaint "for late filing of the affidavit of merit," and, even if the affidavit

was late, "the trial court committed reversible error in not accepting it."

Specifically, plaintiff contends defendant filed his answer after the case had

A-1381-18T3 3 been dismissed. He argues it should therefore "be considered a nullity and no

procedural time limits should 'run' therefrom."

Although plaintiff asserts his case was dismissed on March 29, 2018, he

points to nothing in the record to establish that fact, and we find nothing to

suggest it. Defendant claims he only filed his answer on April 9, 2018, after

his initial motion to dismiss was denied ten days earlier and the record reflects

that plaintiff responded to the request for a statement of damages in

defendant's answer on April 25, 2018. Accordingly, we reject his contention

that his sixty-day period for filing an affidavit of merit never began.

There is no question here but that plaintiff sued defendant for legal

malpractice, thus requiring the filing of an affidavit of merit. See N.J.S.A.

2A:53A-27. Plaintiff does not argue otherwise. Although there was no

Ferreira1 conference held, for reasons not explained on the record, it has been

the law for a decade that "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." Paragon Contractors, Inc.

v. Peachtree Condo. Ass'n, 202 N.J. 415, 426 (2010). Defendant advised

1 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).

A-1381-18T3 4 plaintiff of the statutory requirement for an affidavit of merit in the answer and

again wrote to him at the sixty-day mark to note the affidavit was overdue.

Because we agree with Judge Chell that plaintiff has not presented

extraordinary circumstances to excuse his failure to timely file an affi davit of

merit, see A.T. v. Cohen, 231 N.J. 337, 348 (2017), we need not consider

defendant's alternative grounds that the affidavit of merit plaintiff belatedly

presented, drafted by a New York attorney who had not read the complaint,

would not pass muster under the statute, and that defendant's client was

plaintiff's corporation and not plaintiff.

Affirmed.

A-1381-18T3 5