Perez v. Zagami, LLC, 443 N.J. Super. 359 (App. Div. 2016). Plaintiff Perez and defendant Zagami have a lengthy history of litigation against each other, including one case that went to the Supreme Court, as discussed here. This latest case involved a claim of malicious use of process regarding an underlying defamation case. In response to Perez’s complaint, Zagami sought dismissal on the grounds that the defamatory statements were privileged as based on advice of counsel. Perez then amended his complaint to name Zagami’s lawyers in the prior action, the Nash Law Firm, LLC and two attorneys at that firm (together, “Nash”).
After the case had gone to the Appellate Division once, and was thereafter returned to the Law Division, Nash moved to dismiss the complaint on the grounds that Perez had failed to provide an affidavit of merit, which Nash contended was required by the Affidavit of Merit statute, N.J.S.A. 2A:53A-27. Nash argued that this was in fact a “disguised” professional negligence or malpractice case, and that Perez had to establish the applicable standard of care and deviations from that standard via expert testimony, thus mandating an affidavit of merit. The Law Division denied the motion. On appeal, the Appellate Division affirmed in an opinion by Judge Currier.
After analyzing the elements of malicious use of process, Judge Currier observed that the key to the claim lay in its requirement that malice be shown. The claim “is not the alleged negligence of the attorney in doing his work; rather, it goes to the attorney’s intentions and motive in doing the work.” A determination as to what Nash’s purpose was did not require an affidavit of merit, but rather would be “discovered through interrogatories and depositions.” Since the issues here did not depend on proof of a deviation from a standard of care, the claim “lies beyond the purview of the affidavit of merit statute.” Accordingly, the Law Division’s decision was affirmed.
The Appellate Division’s decision appears correct. The Affidavit of Merit statute applies where there is a negligence or professional malpractice case that entails a standard of care. That was not so here.