Affidavits of Merit Must, Unsurprisingly, be Sworn

Taylor v. Community Medical Center, 2011 WL 181370 (App. Div. Jan. 21, 2011).  This was an appeal by a plaintiff in a medical malpractice matter.  Her complaint was dismissed for failure to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-27.  The Appellate Division affirmed the dismissal on both substantive and procedural grounds.

One of the procedural deficiencies was that the affidavit of merit proffered by the plaintiff was “neither notarized nor conforming to the requisites of R. 1:4-4(b).”  Rule 1:4-4(b) allows for a certification in lieu of an oath.  In short, the affidavit simply was not sworn, in any form.

The plaintiff argued that she had substantially complied with the Affidavit of Merit statute, and also asserted that the equities of her case should have excused her “oversight” in failing to submit a sworn affidavit or certification.  The court did not agree.  Even before the defendants moved for dismissal, they had objected to the fact that the affidavit was not sworn, thus alerting the plaintiff to the problem and giving her the chance to cure that deficiency.  But she did not do that.  Nor did she explain why she failed to submit a sworn document. 

Any affidavit or certification needs to be sworn in proper form.  Especially in the context of the Affidavit of Merit statute, under which the failure to serve a complying affidavit is “tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice,” as Taylor reiterated, citing Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 150 (2003), it is essential that sworn submissions be properly sworn.