In a recent decision, the Appellate Division of the New Jersey Superior Court held that the plaintiff was not required to provide an affidavit of merit in order to sustain a malicious use of process action because it is an intentional tort requiring proof of malice and not a deviation from a standard of care. 
The Legal Background
The affidavit of merit statute, N.J.S.A. 2A:53A-27, provides in pertinent part:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff 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 intent of the requirement is to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, and therefore, weed out meritless lawsuits in the early stage of litigation. Failure to provide an affidavit results in a dismissal of the complaint.
The Facts of the Case
As noted by the court, plaintiff Luis Perez (Perez) and Zagami, LLC (Zagami) (d/b/a The Landmark Americana Tap and Grill, d/b/a Landmark Liquors, d/b/a The Spot) have a long history of litigation between them. After Perez voiced his objections to the renewal of Zagami’s liquor license during a public hearing on the matter, the company retained the Nash Law Firm (Nash) to file a Strategic Lawsuit Against Public Participation (SLAPP) suit, alleging defamation and the related torts of commercial disparagement, trade libel, interference with business relations and civil conspiracy.
Following the dismissal of the suit, Perez filed a SLAPP-back suit against Zagami for malicious use of process. Perez later sought to name the Nash attorneys as additional parties in the SLAPP-back suit. In response, Nash moved to dismiss the case, alleging that plaintiff had failed to provide an affidavit of merit pursuant to N.J.S.A. 2A:53A-27, thus requiring dismissal.
As noted by the Appellate Division, the issue of whether an affidavit of merit was required to support Perez’s malicious use of process claim against the attorneys who provided counsel to his adversary was one of first impression. In support of dismissal, Nash argued that that the drafting and filing of a defamation complaint in connection with their representation of Zagami is providing a professional service. Accordingly, Perez was required to establish through expert testimony the applicable standard of care and the deviations from it. Meanwhile, Perez maintained that his complaint against Nash did not assert negligence or malpractice, but rather alleged intentional actions and malice on the part of the attorneys, thereby rendering the statute inapplicable.
The Court’s Decision
The New Jersey appeals court concluded that an affidavit of merit was not required. In reaching its decision, the panel reasoned that the analysis of the motive of the attorney in the client’s assertion of an advice of counsel defense to a SLAPP-back suit does not depend on proof of a deviation from a standard of care.
The court also agreed with Perez that his claim revolved around the attorney’s intentions and motive in doing the work and not malpractice. As further explained in the opinion:
Perez must prove Nash was motivated by malice in filing the claim against him. The nature of the legal inquiry is not whether Nash performed their work in accordance with the applicable standard of care, but whether Nash provided advice and filed the claim with a malicious intent.
Instead of an affidavit of merit, the appeals court found that the attorney’s intent and purpose for the filing of the SLAPP suit could readily be discovered through interrogatories and depositions. “When those facts are uncovered, the parties will be able to discern the propriety of the SLAPP suit,” the court stated.
For more information about the court’s decision regarding malicious use of process claims or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.