NJ Requirement to Provide Each Defendant With An Affidavit of Merit
N.J.S.A. 2A:53A-27 requires the plaintiff to provide each defendant with an affidavit of merit "within 60 days following the date of filing of the answer to the complaint by the defendant. . . ."
Additionally, "the court may grant no more than one additional period, not to exceed 60 days, to file the affidavit, . . . upon a finding of good cause."
In Ricra, supra, relied upon by the Law Division judge in granting defendants' motion for reconsideration, we concluded that "plaintiff's submission of an unsworn and uncertified expert's report within sixty days of defendant's answer" did not satisfy the requirements of the affidavit of merit statute. 328 N.J. Super. at 426, 746 A.2d 68.
In Mayfield v. Community Medical Associates, 335 N.J. Super. 198, 210-11, 762 A.2d 237 (2000), the Court distinguished Ricra under circumstances where the plaintiff filed an affidavit of merit in a timely fashion but failed to serve it on the defendants and plaintiff timely served an unsworn expert report on defendants.
The Court found those circumstances to constitute substantial compliance with the statute. Id. at 210, 762 A.2d 237.
However, in Kritzberg v. Tarsny, 338 N.J. Super. 254, 260, 768 A.2d 810 (App.Div.2001), the Court held that plaintiff failed to comply with the statute where the affidavit of merit was not served within the 120 day statutory period, even though certified interrogatory answers which described the expert's opinion, but did not attach a report, were served within the 120-day period.
Kritzberg was decided after, and recognized, the Supreme Court's decision in Burns v. Belafsky, 166 N.J. 466, 766 A.2d 1095 (2001), where the Court held that a plaintiff complies with the affidavit of merit statute if the plaintiff files a motion to extend the time, establishing good cause for the late filing, and also files an affidavit of merit within the overall 120 day period provided in N.J.S.A. 2A:53A-27. Burns, supra, 166 N.J. at 475-77, 766 A.2d 1095.