Infant Plaintiff Escapes with Prejudice Dismissal of Malpractice Claim for Failing to Timely Serve an Affidavit of Merit – Cooper v. Russo, ESX-L-1507-14, Decided Sept. 19, 2014 (Law Div.)

In this medical malpractice action, the infant plaintiff’s parents filed a lawsuit on behalf of themselves and their minor son. As the plaintiffs’ counsel could not secure a timely Affidavit of Merit, he sought a voluntary dismissal of the child’s claim without prejudice and dismissal of the parents claim with prejudice. After a “Ferreira” conference, the Court granted plaintiffs’ dismissal requests. The defendants sought reconsideration of the Court’s Order, arguing that the ruling created an impermissible exception to the Affidavit of Merit statute, in that it allowed the infant plaintiff the opportunity to serve an Affidavit outside of the statutory period.

Citing Kubiak v. RWJUH, 332 NJ Super 230 (App. Div. 2000), defendants contended that a Court must dismiss a Complaint with prejudice if the statutory requirements for an Affidavit of Merit are not met, even when one of the plaintiffs is an infant. However, the Court noted that pursuant to NJSA 2A:14-21, the statute of limitations for minors is tolled until they reach the age of 18. Accordingly, the defendants request for reconsideration was denied, as it would be an unjust application of the AOM statute to dismiss an infant plaintiff’s lawsuit with prejudice before the statute of limitations had expired.

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