KLRW Obtains Dismissal with Prejudice of Defendant/Third-Party Plaintiff Claim of Engineer Malpractice Because No Affidavit of Merit Filed

In a condominium property damage and breach of contract lawsuit, a defendant contractor brought a third-party professional malpractice claim against the condominium’s engineer. The defendant/third-party plaintiff did not file an affidavit of merit (“AOM”) and a motion to dismiss with prejudice was filed. The third-party plaintiff contractor argued it was required by the court to implead all potential parties and needed discovery to determine if there was sufficient information for an AOM. The trial court disagreed and found the AOM statute applied to this engineering malpractice claim and dismissed third-party engineering malpractice suit with prejudice. The defendant/third-party contractor plaintiff moved for reconsideration essentially with the same arguments but also claiming it was not required to file an AOM citing Burt v. West Jersey Health Systems, 399 N.J. Super. 296 (App. Div. 2001) which held that a cross-claimant need not file an AOM when a co-defendant is dismissed because the plaintiff failed to file an AOM. In this case, the trial court denied the motion for reconsideration holding that the AOM statute applied and Burt was distinguishable because the third-party plaintiff contractor was not a cross-claimant and the engineering firm was not a direct defendant. For more information, contact Mark S. Hanna, Esq. at mark.hanna@klrw.law or 973-957-2558.