JDN REAL ESTATE HAMILTON GEORGIA LIMITED PARTNERSHIP v. COLD STONE CREAMERY LEASING COMPANY INC AN ARIZONA CORPORATION COLD STONE CREAMERY INC

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Superior Court of New Jersey, Appellate Division.

JDN REAL ESTATE–HAMILTON, L.P., A GEORGIA LIMITED PARTNERSHIP, Plaintiff, v. COLD STONE CREAMERY LEASING COMPANY, INC., AN ARIZONA CORPORATION, C/O COLD STONE CREAMERY, INC., Defendants,

VICTOR ROSA, Defendant/Third–Party v. HOWARD CHERNOFF, Third–Party Defendant- Respondent.

DOCKET NO. A–1555–12T3

-- December 16, 2013

Before Judges Fuentes, Simonelli and Fasciale. Amy E. Gasiorowski argued the cause for appellant (Frieri & Conroy LLC, attorneys;  Ms. Gasiorowski and John R. Frieri, on the briefs). George Karousatos argued the cause for respondent (Biancamano & DiStefano, P.C., attorneys;  Mr. Karousatos, of counsel;  Charles W. Atkinson, III, on the brief).

In this legal malpractice matter, defendant, third-party plaintiff Victor Rosa appeals from the dismissal of his third-party complaint against defendant Howard Chernoff with prejudice for failure to timely file an affidavit of merit (AOM) and timely serve an expert's report.   We affirm the dismissal based on the untimely expert's report for the reasons the court expressed in its February 28, 2013 written opinion.   We also affirm the dismissal based on the untimely AOM, but for reasons other than those the court expressed.  Aquilio v. Cont'l Ins. Co. of N.J., 310 N.J.Super. 558, 561 (App.Div.1998).

We provide a detailed procedural history in order to place this appeal in its proper perspective.   Rosa was a personal guarantor of a lease between a franchise known as Cold Stone Creamery and plaintiff JDN Real Estate–Hamilton L.P. (JDN).  Rosa decided to sell his interest in the franchise and retained Chernoff to represent him.   The transaction closed in May 2007, without a release of the guarantee.   After the new owner defaulted under the lease, JDN filed a complaint against Rosa as guarantor for non-payment of rent.

On May 13, 2011, Rosa filed a third-party complaint against Chernoff, alleging legal malpractice for failing to obtain a release of the guarantee.   Chernoff filed an answer on June 14, 2011.1  N.J.S.A. 2A:53A–27 required Rosa to file an AOM within sixty days of the filing of the answer, or by August 14, 2011.2

On October 6, 2011, the court granted summary judgment to JDN, and entered a final judgment against Rosa and Cold Stone Creamery, jointly and severally, in the amount of $84,131.52.   For reasons not revealed in the record, the trial court stayed execution of the judgment for six months, until April 6, 2012.

Rosa did not file an AOM. On November 11, 2011, Chernoff filed a motion to dismiss the third-party complaint for failure to file an AOM. The court denied the motion and granted Rosa an additional sixty days to file the AOM from April 6, 2012, the date the stay of execution expired, thus requiring Rosa to file the AOM by June 5, 2012.   On April 6, 2012, the stay of execution expired, and JDN began collecting the judgment against Rosa. Although Rosa and Chernoff discussed settling the third-party claims, there was no settlement demand or offer made.

Rosa obtained an AOM on June 8, 2012, but did not file it until July 27, 2012.   In the meantime, the discovery period ended on July 5, 2012.   On August 13, 2012, the court scheduled the trial for November 5, 2012.

On August 8, 2012, Chernoff filed a motion to dismiss the third-party complaint for failure to timely file the AOM and a motion for summary judgment based on Rosa's failure to serve an expert's report.   On August 21, 2012, Rosa served an expert's report without leave of court.   Chernoff objected to the late service.

In a certification and letter brief opposing Chernoff's motions, Rosa's counsel argued there was good cause for the AOM's untimely filing because she inadvertently believed there would be a settlement.   Counsel did not argue, as she now does on appeal, that equitable estoppel barred Chernoff's motion because his attorney engaged in unconscionable conduct by lulling her into a false sense of security that the matter would settle.   We find no support whatsoever in the record for, and decline to address, this meritless argument, which has been raised for the first time on appeal.  Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997);  Nieder v. Royal Indem.   Ins. Co., 62 N.J. 229, 234 (1973).

In an October 19, 2012 order, the court granted Chernoff's motion and dismissed the third-party complaint with prejudice.   In its written opinion, the court rejected Rosa's argument that counsel's inadvertence constituted good cause for the AOM's untimely filing.

On appeal, Rosa contends the court violated the Legislative intent behind N.J.S.A. 2A:53A–27 by dismissing the third-party complaint.   Rosa also contends that Chernoff was not entitled to file a motion to dismiss because Rosa had filed and served the AOM within the statutory 120–day period.   These contentions lack merit.

A plaintiff must file an AOM within sixty days following the filing of a defendant's answer.  N.J.S.A. 2A:53A–27.  “The court may grant no more than one additional period, not to exceed sixty days, to file the affidavit ․ upon a finding of good cause.”  Ibid.;  see also Palanque v. Lambert–Woolley, 168 N.J. 398, 404 (2001);  Burns v. Belafsky, 326 N.J.Super. 462, 470 (App.Div.1999), aff'd 166 N.J. 466 (2001).  “If a plaintiff fails to file the affidavit within 120 days, [the] complaint will be dismissed with prejudice unless extraordinary circumstances prevented the filing.”  Palanque, supra, 168 N.J. at 404 (citing Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998));  see also Tischler v. Watts, 177 N.J. 243, 246 (2003).   An attorney's “ ‘carelessness, lack of circumspection, or lack of diligence’ ” are not extraordinary circumstances which will excuse the untimely filing of an AOM. Palanque, supra, 168 N.J. at 405 (quoting Burns, supra, 326 N.J.Super. at 470).  “[A]ttorney inadvertence will not support the extraordinary circumstances standard.”  Ibid.

N.J.S.A. 2A:53A–27 required Rosa to file and serve an AOM by August 14, 2011.   The statute only authorized the court to grant “no more than one additional period not to exceed sixty days” upon a showing of good cause.   The court had no authority to stay or extend the statutory deadline by six months.   In addition, Rosa failed to show extraordinary circumstances for any further extension beyond the initial “good cause” sixty-day extension.   The AOM's untimely filing was due to nothing more than attorney carelessness, lack of diligence, and inadvertence.   Accordingly, we affirm the dismissal of the third-party complaint with prejudice for failure to timely file an AOM.

Affirmed.

FOOTNOTES

1.  FN1. The Mercer County Clerk stamped the answer “filed” on June 14, 2011.   Thus, the July 14, 2011 filing date cited in the court's written opinion is incorrect.

2.  FN2. Rosa does not dispute that an AOM and expert's report were required in this case.

PER CURIAM

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