Case VFP Doc Filed 12/22/16 Entered 12/22/16 10:07:58 Desc Brief Page 1 of 10 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY

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1 Case VFP Doc Filed 12/22/16 Entered 12/22/ Desc Brief Page 1 of 10 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY x Case No (VFP) IN THE MATTER OF Hon. Vincent F. Papalia NEWARK WATERSHED CONSERVATION AND DEVELOPMENT CORPORATION, Chapter 11 Debtor. x x NEWARK WATERSHED CONSERVATION Adv. Pro. No (VFP) AND DEVELOPMENT CORPORATION, Plaintiff, v. TRENK, DIPASQUALE, DELLA FERA & SODONO, P.C., ELNARDO J. WEBSTER, ESQ. and JODI M. LUCIANI, ESQ., Trenk Defendants. x x TRENK, DIPASQUALE, DELLA FERA & SODONO, P.C., ELNARDO J. WEBSTER, ESQ. and JODI M. LUCIANI, ESQ., Third-Party Plaintiffs, v. City of Newark, New Jersey, Third-Party Defendant. x

2 Case VFP Doc Filed 12/22/16 Entered 12/22/ Desc Brief Page 2 of 10 BRIEF IN SUPPORT OF TRENK, DIPASQUALE, DELLA FERA & SODONO, P.C.; ELNARDO J. WEBSTER, ESQ. AND JODI M. LUCIANI, ESQ. S MOTION TO DISMISS PLAINTIFF'S FIRST AND SECOND AMENDED COMPLAINTS PURSUANT TO FED. R. CIV. P. 12(b)(6) AND N.J.S.A. 2A53-27 GRAHAM CURTIN A Professional Association Four Headquarters Plaza P.O. Box 1991 Morristown, New Jersey Tel (973) ; Fax (973) Attorneys for Trenk, DiPasquale, Della Fera & Sodono, P.C.; Elnardo J. Webster, Esq. and Jodi M. Luciani, Esq. Christopher J. Carey, Esq. Of Counsel Brian B. McEvoy, Esq. On the Brief

3 Case VFP Doc Filed 12/22/16 Entered 12/22/ Desc Brief Page 3 of 10 TABLE OF CONTENTS Page TABLE OF AUTHORITIES...ii PRELIMINARY STATEMENT...1 STATEMENT OF FACTS...2 LEGAL ARGUMENT...2 CONCLUSION...6

4 Case VFP Doc Filed 12/22/16 Entered 12/22/ Desc Brief Page 4 of 10 TABLE OF AUTHORITIES Cases Page Baxt v. Liloia, 155 N.J. 190 (1998) 5 Couri v. Gardner, 173 N.J. 328 (2002) 3 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) 3 State v. Bander, 56 N.J. 196 (1970) 5 Borough of Berlin v. Remington & Vernick Engineers, 337 N.J. Super. 590 (App. Div. 2001) 4 Familia v. Univ. Hosp. of the Univ. of Med. & Dentistry of N.J., 350 N.J. Super. 563 (App. Div. 2002) 3 Hill Int'l, Inc. v. Atl. City Bd. of Educ., 438 N.J. Super. 562 (App. Div. 2014) 3, 4 Levinson v. D'Alfonso & Stein, 320 N.J. Super. 312 (App. Div. 1999) 3 Statutes N.J.S.A. 2A53A-26 2 N.J.S.A. 2A53A-27 2, 4 ii

5 Case VFP Doc Filed 12/22/16 Entered 12/22/ Desc Brief Page 5 of 10 PRELIMINARY STATEMENT Defendants, Trenk Defendants, Trenk, DiPasquale, Della Fera & Sodono, P.C., Elnardo J. Webster, Esq. and Jodi M. Luciani, Esq. (hereinafter the Trenk Defendants ), respectfully submit this Brief in support of the Motion to Dismiss Plaintiff's First and Second Amended Complaint with Prejudice for the Failure to Comply with the New Jersey Affidavit of Merit Statute. Plaintiff Newark Watershed Conservation and Development Corporation (the NWCDC ) brought the within claim against the Trenk Defendants as a result of the performance of their duties as counsel to the NWCDC between 2007 and During the relevant period the Trenk Defendants provided legal services to the NWCDC relating to government affairs, regulatory matters, and municipal proceedings. An affidavit authored by Stephen H. Roth, Esq. was filed on October 21, Mr. Roth is an attorney with experience in family law, chancery, probate and appellate litigation and thus lacks the training and experience necessary to establish a reasonable probability that the Trenk Defendants deviated from the appropriate standard of care. Thus, his affidavit fails to comply with and does not serve the purposes of the New Jersey Affidavit of Merit Statute. Non-compliance with the statute is fatal, and as such, NWCDC s claims against the Trenk Defendants must be dismissed with prejudice. STATEMENT OF FACTS On, or about March 5, 2007, the NWCDC retained the firm of Trenk, DiPasquale, Della Fera & Sodono, P.C. to serve as general counsel. See Certification of Brian B. McEvoy, Esq. (hereinafter McEvoy Cert. ), Exh. A, 95. The NWCDC filed the First Amended Complaint in this matter on June 24, 2016, alleging that the Trenk Defendants alleging, inter alia, claims of legal malpractice and negligence against the Trenk Defendants. See McEvoy Cert., Exhibit A. The Trenk Defendants filed its answer on August 22, See McEvoy Cert., Exhibit B. On

6 Case VFP Doc Filed 12/22/16 Entered 12/22/ Desc Brief Page 6 of 10 October 21, 2016, the NWCDC filed an Affidavit of Merit. See McEvoy Cert., Exhibit C. The affidavit of merit is signed by Stephen H. Roth, Esq. On December 7, 2016, the NWCDC filed its Second Amended Complaint. See McEvoy Cert., Exhibit D. LEGAL ARGUMENT POINT I PLAINTIFF'S FIRST AND SECOND AMENDED COMPLAINTS AGAINST THE TRENK DEFENDANTS MUST BE DISMISSED WITH PREJUDICE FOR FAILURE TO COMPLYWITH N.J.S.A. 2A53A-27 Pursuant to N.J.S.A. 2A53A-27, commonly referred to as the New Jersey Affidavit of Merit Statute, in any action for damages resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, a claimant shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause. the person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. N.J.S.A. 2A53A-27 (Emphasis added). A "licensed person" includes any person who is licensed as an attorney admitted to practice law in New Jersey. N.J.S.A. 2A53A-26(c). The requirements of a claimant in a professional negligence case under the statutory language are clear. Under this provision, any plaintiff alleging professional malpractice or negligence must generally serve an affidavit of merit upon the defendant within (60) sixty days 2

7 Case VFP Doc Filed 12/22/16 Entered 12/22/ Desc Brief Page 7 of 10 of the filing of the answer. Id. The Courts have emphasized that the full period to serve an affidavit of merit cannot exceed 120 days under any circumstances. Familia v. Univ. Hosp. of the Univ. of Med. & Dentistry of N.J., 350 N.J. Super. 563, 569 (App. Div. 2002). Moreover, as the Supreme Court has held, "[t]he failure to deliver a proper affidavit within the statutory time period requires dismissal of the complaint with prejudice." Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, (2003). A. Based Upon the Nature of the Claims Asserted by Plaintiff, The Newark Watershed, Against the Trenk Defendants, the Statutory Language of N.J.S.A. 2A53A-27 is Applicable and the Amended Complaints Must be Dismissed. When considering the applicability of the Affidavit of Merit Statute, "it is not the label placed on the action that is pivotal but the nature of the legal inquiry." Couri v. Gardner, 173 N.J. 328, 340 (2002). Rather than the language of the Complaint, the critical issue is whether "the claim's underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession." Id.; Levinson v. D'Alfonso & Stein, 320 N.J. Super. 312, 315 (App. Div. 1999) (dismissing a claim for "fraud" where it "essentially repeat[ed]" the malpractice claims on which the complaint was founded). Where such proof is required, the plaintiff must provide an Affidavit of Merit in support of his or her claim. Couri, supra, 173 N.J. at 341. The statute does not specify in a comprehensive or precise manner the qualifications of an appropriate licensed person who is eligible to submit an affidavit of merit, except for the more stringent specialization requirements imposed for affiants in medical malpractice cases in N.J.S.A. 2A53A 41. The statute does, however, indicate that the affiant must have particular expertise in the general area or specialty involved in the action. Hill Int'l, Inc. v. Atl. City Bd. of Educ., 438 N.J. Super. 562, 573, 106 A.3d 487, (App. Div. 2014) citing N.J.S.A. 3

8 Case VFP Doc Filed 12/22/16 Entered 12/22/ Desc Brief Page 8 of 10 2A53A 27. The affiant may establish such expertise either by a certification from a board, or by a showing of a devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. Id. Here, the Plaintiffs have submitted an Affidavit of Merit prepared by Stephen H. Roth, Esq. dated October 21, (Docket No. 153). Mr. Roth states specifically, I have worked primarily in civil litigation. Most of my civil litigation experience has been in family law and Chancery, Probate and appellate litigation. (Docket No. 153 at, Par. 2). The Roth affidavit goes on to list a few further qualifications, however, none of these qualifications qualify him to provide an Affidavit of Merit pursuant to N.J.S.A. 2A53A-27 in the instant matter. As identified above, the statute requires a devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. N.J.S.A. 2A53A-27. Here, the nature of the underlying action primarily relates to government affairs, regulatory matters, and municipal proceedings. Mr. Roth s affidavit fails to identify any experience in these areas, let alone the requisite five years of substantial experience within them. See Borough of Berlin v. Remington & Vernick Engineers, 337 N.J. Super. 590, 599, 767 A.2d 1030, 1035 (App. Div. 2001) (noting risk that purpose of New Jersey Affidavit of Merit Statute may be thwarted by permitting affidavits executed by those lacking appropriate qualifications). New Jersey s appellate courts have wrangled with this issue previously. In Hill Int'l, Inc. v. Atl. City Bd. of Educ., the court noted that construing the affidavit of merit statute to require such like-licensed affiants is consistent with norms of fairness as well as a recognition of the reasonable expectations of a licensed professional. 438 N.J. Super. 562, , 106 A.3d 487, (App. Div. 2014). In addition, the licensee must fairly anticipate that he or she could be sued for malpractice by the injured party, upon proof that he or she strayed from the acceptable 4

9 Case VFP Doc Filed 12/22/16 Entered 12/22/ Desc Brief Page 9 of standards or treatment practices within his or her profession or occupation. Id. To allow plaintiff s claims to proceed premised upon an affidavit of merit authored by a affiant who admittedly has identified no experience with the underlying practice area, let alone the statutory requisite of five years defeats the very purpose of New Jersey Affidavit of Merit Statute. For these reasons, it is respectfully submitted the Plaintiff s Complaint should be dismissed with prejudice as to the Trenk Defendants. POINT II PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED BECAUSE THE BASIS FOR THE AFFIDAVIT OF MERIT ON RULES OF PROFESSIONAL CONDUCT FAIL The Supreme Court in Baxt v. Liloia, held specifically that, [w]e reject plaintiffs' contention that a cause of action based on a violation of the RPCs is necessary to ensure that attorneys conform their conduct to the high standards set forth in the Rules. 155 N.J. 190, 204 (1998). Violations of the RPC s cannot be the sole basis for advancing a claim of civil liability. Id. at Further, as set forth in the New Jersey Constitution, the Supreme Court is the only jurisdiction capable of establishing violations of the Rules of Professional Conduct where it states [t]he Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts. The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted. NJ Constitution. Article 6, Sec. 2., para 3 (emphasis added); see also State v. Bander, 56 N.J. 196, 200 (1970) (Supreme Court has exclusive jurisdiction over such claims.). Here, the affiant relies solely on duties based on the Rules of Professional Conduct to assert that the alleged standard of care was not provided. (Doc 153, Par ). As discussed above, such assertions are misplaced with respect to asserting claims of civil liability. See Baxt v. Liloia, 155 N.J. 190, (1998). Therefore, the basis for the Plaintiff s Affidavit of 5

10 Case VFP Doc Filed 12/22/16 Entered 12/22/ Desc Brief Page 10 of 10 Merit fails, in addition to the affiant not having the required experience, as a result of the affiant s reliance on alleged violations of the RPC s. For these reasons, the Plaintiff s complaint must be dismissed with prejudice as to the Trenk Defendants. CONCLUSION For the foregoing reasons, it is respectfully submitted that the Court should enter an Order dismissing Plaintiff s Complaint with prejudice. GRAHAM CURTIN A Professional Association Attorneys for Trenk, DiPasquale, Della Fera & Sodono, P.C.; Elnardo J. Webster, Esq. and Jodi M. Luciani, Esq. Dated December 22, 2016 By /s/ Brian B. McEvoy Brian B. McEvoy 6