To support claims of professional malpractice or negligence, the Affidavit of Merit must be issued by an affiant licensed in the same profession as the defendant.

A school board entered into a contract with an architect for the design of a school. The general contractor on the project was terminated prior to the project’s completion and thereafter sued the school board and the architect, alleging that the termination was a breach of the agreement, that the architect induced the school board to breach the agreement, and that the architect negligently deviated from professional standards in the design, administration and oversight of the project. A week after the architect filed an answer, the plaintiff filed and served an Affidavit of Merit from a professional engineer. Fourteen days after the 120-day maximum time period for the Affidavit of Merit, the architect moved to dismiss, arguing that the Affidavit of Merit was by a licensed engineer, not a licensed architect. The Appellate Division vacated the trial court’s order denying the motion and held that an Affidavit of Merit, when required, must be issued by an affiant who is licensed in the same profession. An exception to this holding exists in the instance where a plaintiff’s claims are confined to theories of vicarious liability or agency and do not involve deviations from a defendant’s professional standards of care.

_{Case Law Alerts, 2^nd Quarter, April 2015}

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