In this medical malpractice action, the court granted defendant Perry Loesberg, M.D. leave to appeal Law Division's order's denying his motions to dismiss plaintiff's amended complaint due to their failure to serve an affidavit of merit (AOM) within 120 days of the filing of defendant's answer in accordance with N.J.S.A. 2A:53A-27. The court affirms, concluding the orders were supported by the record because there were extraordinary circumstances warranting an extension of the AOM 120-day filing deadline.
Prior to defendant being named in the amended complaint, a court order granted plaintiff's motion to waive the filing of an AOM as to the then-named defendants. The lack of a Ferreira conference after defendant answered the amended complaint, coupled with the prior court order and defendant's discovery response failure to raise the lack of an AOM as a defense, constituted "an almost perfect storm" of events that warrant affording plaintiff additional time to submit an AOM. SeeA.T. v. Cohen, 231 N.J. 337, 350 (2017). A Ferreira conference should have been conducted to bring the parties together to address the applicability of the AOM waiver order on the claims against the newly-added defendant. Permitting plaintiff to file an AOM outside the 120-day statutory deadline and denying defendant's motions to dismiss prevents an injustice.