An Affidavit of Merit is necessary to support claims of professional malpractice or negligence liability, and it must be authored by an affiant who is licensed within the same profession as the defendant.

The issue before the Appellate Division concerned whether an Affidavit of Merit authored by a licensed engineer was sufficient to sustain claims against a licensed New Jersey architect pursuant to New Jersey’s Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29. In support of its proposed Affidavit of Merit, the plaintiff identified that the engineer who authored the Affidavit of Merit, while not a licensed architect, did serve for seven years as an adjunct professor at the School of Architecture of the New York Institute of Technology, having taught undergraduate courses “related to structural design and construction management supervision.” The court invited the Attorney General to participate in the appeal as counsel to the State Board of Architects and the State Board of Professional Engineers; however, the invitation was declined. The court did grant, however, a joint motion of several professional groups, including AIA New Jersey, the New Jersey Society of Architects and the New Jersey Society of Professional Engineers, to appear through a single law firm as amicus curiae. The amici joined the appellants in seeking a reversal of the trial court’s decision that an engineer could author an Affidavit of Merit against an architect.

The Appellate Division specifically considered whether the engineer qualified as an “appropriate licensed person” to author the Affidavit as to an architect as defined by the Affidavit of Merit Statute at N.J.S.A. 2A:53A-27. Although the court acknowledged that areas of both practices overlapped, the court ultimately held that a licensed engineer was not a sufficiently similarly licensed individual to provide an Affidavit of Merit against a licensed architect in New Jersey. The court also identified several exceptions to its like-licensed affiant ruling, but it did not make a finding that any of the plaintiff’s claims warranted such an exception to the rule. Two of the counts in the plaintiff’s complaint were remanded for further consideration regarding one of the exceptions highlighted by the court. Due to the previously unsettled nature of the law on this issue, the remainder of the plaintiff’s claims were remanded, with the plaintiff being permitted additional time to obtain a new Affidavit of Merit in light of the court’s ruling.

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

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