Affidavit of Merit Statute Does Not Apply to Unlicensed Persons, and Some Other Lessons

Albrecht v. Correctional Medical Services, 422 N.J. Super. 265 (App. Div. 2011).  The Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, makes the submission of an affidavit that a suit has merit a prerequisite to a case against a “licensed person in his profession or occupation.”  In this decision by Judge Miniman, the Appellate Division reversed the dismissal of the complaint.  The panel held that defendant had not shown that it was licensed, and that the statute affords no protection to unlicensed persons.  Judge Miniman provided a detailed analysis of the intent and language of the statute in reaching that conclusion.  She also observed that construing the statute as benefiting unlicensed persons (apart from the fact that the statute expressly applies only to a “licensed person”) would create an absurd result, since non-licensure is to be discouraged.

Apart from that holding, the opinion illustrates several fundamental general principles.  First, Judge Miniman noted that defendant had tried to present information about itself in a brief and at oral argument.  Those statements were not evidential and violated Rule 1:6-6, which requires certifications on personal knowledge.  Many prior cases have said that purported facts offered in briefs or in other uncertified form are to be disregarded.

Second, though defendant filed a motion to dismiss, plaintiff’s response brought in materials beyond the pleadings.  Since those materials were not excluded by the motion judge, that converted the motion to one for summary judgment, pursuant to Rule 4:6-2(e).

Third, defendant relied on five unpublished federal district court cases in support of its argument.  Besides noting that the cases assumed rather than actually deciding what defendant was asserting, Judge Miniman reminded everyone that unpublished decisions “do not constitute precedent, are not binding, and may not be cited by us,” citing Rule 1:36-3.