                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2072-14T2
                                               A-2495-14T2


MELODY FAITH MAZUR, as ATTORNEY-
IN-FACT for DORIS ELIZABETH             APPROVED FOR PUBLICATION
ARMSTRONG,
                                             June 11, 2015

     Plaintiff-Appellant,                 APPELLATE DIVISION

v.

CRANE'S MILL NURSING HOME, CRANE'S
MILL OAK HEALTH CENTER, THE OAKS AT
CRANE'S MILL, THE HEALTH CENTER AT
CRANE'S MILL, LUTHERAN SOCIAL
MINISTRIES OF NJ, and PRADIP SUKHAL
SHAH, M.D.,

     Defendants-Respondents.
_____________________________________

         Submitted June 2, 2015 – Decided June 11, 2015

         Before Judges Fisher, Nugent and Accurso.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Docket No. L-
         2703-14.

         Failla & Banks, LLC, attorneys for appellant
         (Vincent J. Failla, on the briefs).

         Vasios, Kelly & Strollo, P.A., attorneys for
         respondent Pradip Sukhal Shah, M.D. (Rowena
         M. Duran, of counsel; Linda Fulop-Slaughter,
         on the brief).

         Burns White LLC, attorneys for respondents
         Lutheran Social Ministries at Crane's Mill,
         Inc. (incorrectly pleaded as "Crane's Mill
            Nursing Home") and Lutheran Social Ministries
            of New Jersey, Inc. (Brian D. Pagano and
            Taisha K. Tolliver, on the brief).

PER CURIAM

    This is a medical malpractice action.                     Plaintiff has filed

these     appeals,       which    we    consolidate     for    purposes    of    this

opinion, from trial court orders dismissing the complaint on the

ground     that     the     affidavit     of    merit    plaintiff    served       on

defendants was deficient.               Because the trial court based its

disposition of defendant Pradip Sukhal Shah's motion on false

statements in his answer, his attorney's certification, and his

brief, as well as incompetent evidence, we reverse and remand

for further proceedings.               We also reverse the order dismissing

the complaint against defendants Lutheran Social Ministries at

Crane's    Mill,        Inc.,    and   Lutheran    Social     Ministries    of    New

Jersey, Inc., (collectively, LSM), which owned and operated the

facility     where        the    malpractice      allegedly     occurred.         The

arguments of the LSM defendants are essentially the same as Dr.

Shah's    and     are    based    on   either   incompetent     evidence    on    the

motion record or unsupported statements in their brief.                            We

remand this case to the trial court for further proceedings

consistent with this opinion.




                                           2                                A-2072-14T2
                                        I.

      The facts of record are essentially undisputed.                      Plaintiff

Melody    Mazur    is    the   attorney-in-fact      for   her    mother,      Doris

Elizabeth Armstrong.1          Doris Elizabeth Armstrong (the patient)

was   eighty-one    years      old   when    she   was   admitted     to    the   LSM

facility in November 2012 to undergo rehabilitation following

her hospitalization for a fractured pelvis.                According to an LSM

attorney's certification - which will be discussed later - the

LSM   facility     was    a    "full-service       assisted   living,        skilled

nursing   and     rehabilitation      facility     equipped      to   provide     the

rehabilitative needs that [the patient] required."                     During her

stay at the LSM facility, the patient suffered a severe stroke,

the event that precipitated this lawsuit.

      Plaintiff filed a five-count complaint against Dr. Shah,

LSM, and numerous fictitiously named defendants on April 17,

2014,2 and an affidavit of merit on May 7, 2014.                      Although the

complaint alleged causes of action for negligence, malpractice,

negligent hiring, negligent supervision, and negligent training,



1
  Ms. Armstrong is now deceased. Plaintiff will presumably amend
the complaint, substitute an appropriate representative, see
N.J.S.A. 2A:15-3, N.J.S.A. 2A:31-2, and properly identify the
defendants.
2
  The complaint is date stamped with the year 2015, but bears a
2014 docket number, and the other pleadings as well as the
transcripts make it clear that the complaint was filed in 2014.



                                        3                                   A-2072-14T2
the core allegation was that defendants' untimely diagnosis and

treatment    of   the    patient's    stroke       fell    outside      acceptable

professional standards of care and caused the patient to suffer

debilitating injuries.         For example, the negligent hiring count

incorporates the allegations as to Dr. Shah and then asserts the

LSM defendants were negligent for hiring him because they knew

or should have known he was not qualified to fill the position

for which he was hired.        The only factual allegations supporting

that   proposition      are   those   that   Dr.    Shah    deviated      from    an

accepted    medical      standard     when    caring       for    the    patient.

Significantly, plaintiff alleged that Dr. Shah and the other

medical    providers    who   cared   for    the   patient       were   agents    or

employees of LSM.

       Plaintiff's affidavit of merit (AOM), prepared by Dr. Ira

Mehlman, stated that the patient's care at the LSM facility on

November 23, 2012, "did not meet the standard of care."                    In the

doctor's opinion, the clinical nursing team's and Dr. Shah's

alleged deviations from professional standards of care caused or

contributed to the patient's final debilitating condition.                       Dr.

Mehlman was board certified in emergency and internal medicine.

       The month after plaintiff filed the complaint, Dr. Shah

filed an answer on May 15, 2014, which included this statement:

"Dr. Shah's field of specialty is [g]eriatrics [m]edicine and he




                                       4                                  A-2072-14T2
is [b]oard [c]ertified in [g]eriatrics.          The doctor's treatment

of the plaintiff involved the specialty of [g]eriatrics."                 The

statement that Dr. Shah was board certified was false; although

Dr. Shah had once been board certified in geriatric medicine, he

had not been so certified for several years or more before he

began to treat the patient at the LSM facility.

       On   July   2,   2014,   the   trial   court   sent   a   letter   to

plaintiff's counsel scheduling a Ferreira3 conference for October

16, 2014 and directing plaintiff's counsel to notify the other

parties.     The conference was thus to occur more than 120 days

after Dr. Shah filed his answer on May 15, 2004.             Meanwhile, LSM

had filed an answer on June 19, 2014.           The Ferreira conference

was scheduled to be conducted 119 days after the LSM answer was

filed; however, eight days before the conference, counsel for

LSM obtained a consensual adjournment to October 29, 2014, 132

days after LSM filed its answer.

       A month before the Ferreira conference occurred, Dr. Shah's

counsel sent a letter to plaintiff's counsel pointing out that

Dr. Ira Mehlman, in the AOM,

            certifies that he is boarded in [e]mergency
            [m]edicine and [i]nternal [m]edicine but has
            been practicing [e]mergency [m]edicine since
            1992.   Dr. Shah was treating [the patient]


3
    Ferreira v. Rancocas Orthopedic Assoc., 178 N.J. 144 (2003).




                                      5                            A-2072-14T2
            as a board certified geriatric specialist.
            Accordingly, it is our position that both
            pursuant to the case law and the statute,
            Dr. Mehlman is not qualified to render an
            affidavit   of   merit  as  to   Dr.  Shah.
            Accordingly, we will not be withdrawing our
            motion to dismiss.4

Counsel's assertion that Dr. Shah was "treating [the patient] as

a board certified geriatric specialist" was false.

    By   the   time   the   Ferreira   conference    was   conducted   on

October 29, 2014, Dr. Shah had filed a second motion to dismiss,

returnable November 7, 2014.       When informed by counsel of the

pending motion, the court responded: "Okay.         There's nothing for

me to do then because I'll decide that on the [return date of

Dr. Shah's motion]."        The court made no determination at the

Ferreira conference as to whether plaintiff's affidavit of merit

was deficient.

    On November 7, 2014, the court heard oral argument on Dr.

Shah's motion to dismiss.       Plaintiff's counsel did not appear.

Dr. Shah's motion was supported by a certification of counsel,

exhibit, and brief.     The certification and brief repeated the

false assertion that Dr. Shah was board certified in geriatric

medicine.    The "exhibit" was a printout of a New Jersey Health



4
  Dr. Shah's counsel had filed a motion to dismiss on the ground
that plaintiff had filed no affidavit of merit.     That motion,
denied without prejudice on October 10, 2014, is not at issue
here.



                                   6                            A-2072-14T2
Care Profile from an internet site stating that Dr. Shah's board

certification in internal medicine expired on December 31, 2006

and his board certification in geriatric medicine expired on

December 31, 2008.          The court and counsel apparently overlooked

those dates.

       The court noted that Dr. Shah's "motion is indicating that

[plaintiff's        AOM]    doesn't     comply         inasmuch    [as   plaintiff's]

expert . . . is not board certified in geriatrics, or geriatric

medicine."       Citing precedent requiring that the AOM author be

board certified in the same specialty as the defendant being

criticized, the court granted Dr. Shah's motion and dismissed

the    complaint     as    to   him   with       prejudice.       On   leave    granted,

plaintiff appealed under A-2072-14 from the confirming order.

       The    following     month,      December       2014,    the    LSM   defendants

filed a motion to dismiss the complaint.                          In support of the

motion, counsel for the LSM defendants submitted a certification

that    the   LSM    facility     was    a       "full-service     assisted      living,

skilled nursing and rehabilitation facility equipped to provide

the rehabilitative needs that [the patient] required."                            Citing

the allegation in plaintiff's complaint that defendants "failed

to adhere to accepted medical and/or nursing standards," and

referencing      the       court's    dismissal          with     prejudice     of      the

complaint      against      Dr.   Shah,          the   LSM     defendants      sought     a




                                             7                                  A-2072-14T2
dismissal         with        prejudice      "for     the    same        reason,"    namely,

plaintiff's AOM "is insufficient in that it was not served by a

properly qualified affiant."

      During oral argument, plaintiff's counsel clarified that

plaintiff        was     alleging      the   LSM     defendants      were       negligent    in

"react[ing] to an emergency situation, a person . . . a person

having      a    stroke        in    their     facility."          The     court     rejected

plaintiff's argument that Dr. Mehlman's AOM was adequate.                                   The

court    stated:         "I    [am]    rejecting      your     witness      because,     when

you're suing the nursing home for malpractice and their policies

and procedures, this witness has no experience to talk about

that."      The court entered a confirming order on December 19,

2014, from which plaintiff appealed under A-2495-14.

                                               II.

                                               A.

      We    begin        our    analysis       by    reviewing      in    the     context   of

medical malpractice cases some of the basic provisions of the

AOM   statute,          N.J.S.A.      2A:53A-26       to    -29,    and     the     interplay

between     the        statute's      procedural        requirements        and     those    of

motions generally.              We start with the statute.

      In    enacting          the    AOM   statute,     "the     Legislature        aimed    to

strike 'a fair balance between preserving a person's right to

sue   and       controlling         nuisance    suits      [against      certain    licensed




                                                8                                    A-2072-14T2
professionals] that drive up the cost of doing business in New

Jersey.'"     Hill Intern., Inc. v. Atlantic City Bd. of Educ., 438

N.J. Super. 562 (App. Div. 2014) (quoting Statement of Governor

Whitman on Signing S. 1493 (June 29, 1995)), motion for leave to

appeal    granted,    __   N.J.    __   (April    21,    2015).     The    statute

strikes     that    balance,      in    part,    by   "impos[ing]     a    special

requirement        upon    plaintiffs         bringing     lawsuits       claiming

malpractice or negligence by certain enumerated professionals."

Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg &

Ellers, LLP, 416 N.J. Super. 1, 14 (App. Div. 2010).

    The "professionals" enumerated in the statute include "a

physician in the practice of medicine or surgery[,]" N.J.S.A.

2A:53A-26(f), and "a health care facility as defined in section

2 of P.L.1971, c.136 (C.26:2H-2)[,]" N.J.S.A. 2A:53A-26(j).                       If

a plaintiff seeks personal injury, wrongful death, or property

damages in an action alleging

            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 court may grant no more than



                                          9                               A-2072-14T2
one additional period, not to exceed 60
days, to file the affidavit pursuant to this
section, upon a finding of good cause.

In the case of an action for medical
malpractice,    the   person   executing   the
affidavit shall meet the requirements of a
person who provides expert testimony or
executes an affidavit as set forth in
section 7 of P.L. 2004, c. 17 (C. 2A:53A-
41).   In   all   other   cases,  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.
The person shall have no financial interest
in the outcome of the case under review, but
this prohibition shall not exclude the
person from being an expert witness in the
case.5

[N.J.S.A. 2A:53A-27.]



5
  An affidavit shall not be required . . . if
the plaintiff provides a sworn statement in
lieu of the affidavit setting forth that:
the   defendant   has   failed   to   provide
plaintiff with medical records or other
records or information having a substantial
bearing on preparation of the affidavit; a
written request therefor along with, if
necessary, a signed authorization by the
plaintiff for release of the medical records
or other records or information requested,
has been made by certified mail or personal
service; and at least 45 days have elapsed
since the defendant received the request.

[N.J.S.A. 2A:53A-28.]




                        10                       A-2072-14T2
      Thus, in a medical malpractice action, parties must also

comply   with   the   New   Jersey    Medical   Care   Access      and

Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -

42.   Under that act, the person executing the AOM must be

          licensed as a physician or other health care
          professional in the United States and meet[]
          the following criteria:

          a. If the party against whom or on whose
          behalf the testimony is offered is a
          specialist or subspecialist recognized by
          the American Board of Medical Specialties or
          the American Osteopathic Association and the
          care or treatment at issue involves that
          specialty or subspecialty recognized by the
          American Board of Medical Specialties or the
          American Osteopathic Association, the person
          providing    the     testimony     shall    have
          specialized at the time of the occurrence
          that is the basis for the action in the same
          specialty or subspecialty, recognized by the
          American Board of Medical Specialties or the
          American Osteopathic Association, as the
          party against whom or on whose behalf the
          testimony is offered, and if the person
          against   whom    or   on   whose   behalf   the
          testimony   is     being  offered     is   board
          certified and the care or treatment at issue
          involves     that     board     specialty     or
          subspecialty recognized by the American
          Board of Medical Specialties or the American
          Osteopathic Association, the expert witness
          shall be:

          (1) a physician credentialed by a hospital
          to treat patients for the medical condition,
          or to perform the procedure, that is the
          basis for the claim or action; or

          (2) a specialist or subspecialist recognized
          by the American Board of Medical Specialties
          or the American Osteopathic Association who



                                11                           A-2072-14T2
is board certified in the same specialty or
subspecialty, recognized by the American
Board of Medical Specialties or the American
Osteopathic Association, and during the year
immediately   preceding  the   date  of  the
occurrence that is the basis for the claim
or action, shall have devoted a majority of
his professional time to either:

(a) the active clinical practice of the same
health   care   profession  in   which   the
defendant is licensed, and, if the defendant
is a specialist or subspecialist recognized
by the American Board of Medical Specialties
or the American Osteopathic Association, the
active clinical practice of that specialty
or subspecialty recognized by the American
Board of Medical Specialties or the American
Osteopathic Association; or

(b) the instruction of students in an
accredited medical school, other accredited
health professional school or accredited
residency or clinical research program in
the same health care profession in which the
defendant is licensed, and, if that party is
a specialist or subspecialist recognized by
the American Board of Medical Specialties or
the American Osteopathic Association, an
accredited     medical     school,    health
professional school or accredited residency
or clinical research program in the same
specialty or subspecialty recognized by the
American Board of Medical Specialties or the
American Osteopathic Association; or

(c) both.

b. If the party against whom or on whose
behalf the testimony is offered is a general
practitioner, the expert witness, during the
year immediately preceding the date of the
occurrence that is the basis for the claim
or action, shall have devoted a majority of
his professional time to:




                     12                        A-2072-14T2
            (1) active clinical practice as a general
            practitioner; or active clinical practice
            that encompasses the medical condition, or
            that includes performance of the procedure,
            that is the basis of the claim or action; or

            (2) the instruction of students in an
            accredited     medical     school,     health
            professional school, or accredited residency
            or clinical research program in the same
            health care profession in which the party
            against   whom  or   on   whose  behalf   the
            testimony is licensed; or

            (3) both.

            c. A court may waive the same specialty or
            subspecialty recognized by the American
            Board of Medical Specialties or the American
            Osteopathic     Association     and     board
            certification requirements of this section,
            upon motion by the party seeking a waiver,
            if, after the moving party has demonstrated
            to the satisfaction of the court that a good
            faith effort has been made to identify an
            expert    in    the   same    specialty    or
            subspecialty, the court determines that the
            expert    possesses   sufficient    training,
            experience and knowledge to provide the
            testimony as a result of active involvement
            in, or full-time teaching of, medicine in
            the applicable area of practice or a related
            field of medicine.

            [N.J.S.A. 2A:53A-41(a)-(c).]

      The Patients First Act makes clear that, with the exception

of N.J.S.A. 2A:53A-41(c), "[w]hen a physician is a specialist

and   the   basis   of   the   malpractice   action   'involves'    the

physician's specialty, the challenging expert must practice in




                                  13                          A-2072-14T2
the same specialty."           Nicholas v. Mynster, 213 N.J. 463, 481-82

(2013). If the defendant physician

           is board certified and the care or treatment
           at issue involves that board specialty
           . . ., the expert witness then must either
           be credentialed by a hospital to treat the
           condition at issue, N.J.S.A. 2A:53A-41(a)(1)
           or be board certified in the same specialty
           in the year preceding the occurrence that is
           the basis for the claim or action, N.J.S.A.
           2A:53A-41(a)(2).

           [Id. at 482 (citation and internal quotation
           marks omitted).]

    A    board-certified         expert    must    also     satisfy        one   of     two

additional      requirements.       The    physician       must     have    devoted       a

majority   of    his    professional       time    in   the   preceding          year    to

either clinical practice in the specialty or to teaching at an

accredited medical school in that specialty.                  Id. at 481.

    Our      Supreme     Court      has    implemented        certain       procedural

requirements "[t]o ensure that discovery related issues, such as

compliance with the [AOM] statute, do not become sideshows to

the primary purpose of the civil justice system — to shepherd

legitimate claims expeditiously to trial . . . ."                            Ferreira,

supra,   178    N.J.    at   154.     "A       physician    defending       against       a

malpractice     claim    who    admits     to    treating     the    plaintiff        must

include in his or her answer the field of medicine in which he

or she specialized at that time, if any, and whether his or her




                                          14                                     A-2072-14T2
treatment of the plaintiff involved that specialty."           R. 4:5-3;

see also Buck v. Henry, 207 N.J. 377, 396 (2011).

    Additionally,   the   Supreme    Court   has   directed   that   trial

courts conduct a

         case management conference . . . within
         ninety days of the service of an answer in
         all malpractice actions . . . .       At the
         conference, the court will address all
         discovery   issues,  including   whether  an
         affidavit of merit has been served on
         defendant. If an affidavit has been served,
         defendant will be required to advise the
         court whether he has any objections to the
         adequacy of the affidavit. If there is any
         deficiency in the affidavit, plaintiff will
         have to the end of the 120-day time period
         to conform the affidavit to the statutory
         requirements.    If no affidavit has been
         served, the court will remind the parties of
         their obligations under the statute and case
         law.

         [Ferreira, supra, 178 N.J. at 154-55.]

    It serves no purpose to conduct a Ferreira conference more

than 120 days after defendant has filed an answer.

         The Ferreira conference was created to
         remind    parties    of    their    statutory
         obligations and thus avoid dismissal of
         meritorious claims through inadvertence. It
         was never intended, nor could it have been,
         as an overlay on the statue that would
         effectively    extend    the    legislatively
         prescribed filing period. Thus, it is not a
         tolling device.

         [Paragon Contractors, Inc. v. Peachtree
         Condo. Ass'n, 202 N.J. 415, 419 (2010).]




                                    15                           A-2072-14T2
    In addition to procedural requirements concerning the AOM

statute, a medical malpractice defendant filing an AOM dismissal

motion must meet the procedural requirements concerning general

motion        practice,         which        are     contained        in      Rule       1:6.

This is because "[a]n application to the court for an order

shall    be    by    motion,      or    in   special       cases,    by    order    to   show

cause."       R. 1:6-2(a).

    If the facts upon which the motion is based do not appear

of record and are not judicially noticeable, "the court may hear

[the motion] on affidavits made on personal knowledge, setting

forth only facts which are admissible in evidence to which the

affiant       is    competent     to    testify      and    which    may    have     annexed

thereto certified copies of all papers or parts thereof referred

to therein."          R. 1:6-6.         Further, "[t]he court may direct the

affiant       to    submit   to    cross-examination,           or    hear    the    matter

wholly or partly on oral testimony or depositions."                          R. 1:6-6.

    It    bears       emphasizing        that      "[a]ffidavits      by    attorneys      of

facts not based on their personal knowledge but related to them

by and within the primary knowledge of their clients constitute

objectionable hearsay."                Pressler & Verniero, Current N.J. Court

Rules, comment on R. 1:6-6 (2015).                     "It is also clear that the

mere appending of relevant documents to the motion brief does

not constitute compliance with the rule.                      Such documents must be




                                              16                                    A-2072-14T2
incorporated       by    reference       in     an    appropriate          affidavit      or

certification, which properly authenticates material which is

otherwise admissible."          Ibid.

       This case serves as an example of what can happen when

lawyers and judges ignore Rule 1:6-6.                            We thus turn to the

issues the parties have raised on this appeal.

                                          B.

       Because the facts are undisputed, our review is of the

trial    court's      legal     conclusions          and    is     therefore      plenary.

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995).       We first review de novo the order dismissing the

complaint against Dr. Shah.

       The doctor now concedes that the trial court entered the

dismissal order based on false information; namely, that Dr.

Shah was board certified in geriatric medicine when he treated

the    patient.         The   doctor     does    not       explain       how     the   false

representations upon which the court made its ruling came about.

What is clear is that Dr. Shah established the factual premises

upon    which   the     trial    court    decided          his    motion       through    his

attorney's      certification,       which      included         facts     not    based    on

personal knowledge as required by Rule 1:6-6. Notwithstanding

that    fundamental      deficiency      in     Dr.    Shah's      motion,       the   court

relied upon the certification rather than dismiss the motion.




                                          17                                       A-2072-14T2
The   result       is    that        considerable        time   and    expense          have   been

wasted and an action has been dismissed based on incompetent

evidence that is false.                The court's decision must be reversed.

       Dr. Shah contends that even though the court's ruling was

based on false evidence, we should affirm the implementing order

because      Dr.        Shah     specialized           in     geriatric       medicine,         his

treatment of the patient involved geriatric medicine, and Dr.

Mehlman, who signed the AOM for plaintiff, did not specialize in

geriatric medicine.              The doctor's argument is without sufficient

merit to warrant extended discussion in a written opinion.                                        R.

2:11-3(e)(1)(E).             We add only the following brief comments.

       Dr.   Shah       maintains          that    his      answer   placed    plaintiff         on

notice of his area of specialty.                       That may be so, but absent the

misrepresentation concerning his board certification plaintiff

may   well     have      sought        –    and    received      –    competent         proof     or

verification that such was the case and responded timely and

appropriately.

       More significantly, Dr. Shah would now have us disregard R.

1:6-6 and base a decision on the same incompetent evidence that

he    presented         to     the    trial       court.        In    view    of    the        false

statements      that         were     made    to    the      trial    court,       we    have    no

confidence in either the statements in Dr. Shah's answer or the

representations of Dr. Shah's attorney.                          That is not to suggest




                                                  18                                      A-2072-14T2
that we believe the doctor's attorney made deliberately false

statements.          Rather, our comments are made to underscore what

should be obvious: Rule 1:6-6 and its implicit prohibition –

explicit       in   the     rule's     comments    -      against     attorneys       filing

certifications not based on firsthand knowledge serve a salient

purpose.       Attorneys should comply with the rule and trial courts

should enforce it.

       Having said that, we nonetheless must consider the policy

underpinning        the     AOM   statute.        Dr.     Shah     should    not    have   to

defend a meritless claim.

       "Absent extraordinary circumstances, a failure to comply

with    the       statute    .    .   .   requires      a   dismissal       .   .   .   with

prejudice."         Allen J. Cornblatt, P.A. v. Barrow, 153 N.J. 218,

247 (1998).          Here, plaintiff did not comply with the statute.

We conclude, however, that the circumstances of this case are

extraordinary.          Specifically, we conclude that in cases where an

answer states falsely that a medical malpractice defendant is

board    certified;         the    defense    attorney       does     not    correct       the

misstatement, but repeats it in a certification in support of a

motion    to      dismiss    the      complaint    and      then    repeats     the     false

statement throughout the motion brief; the court does not timely

conduct       a     Ferreira      conference;        and     the     court      ultimately

dismisses         the     complaint       based      on     the      misrepresentation;




                                             19                                     A-2072-14T2
extraordinary circumstances exist and the statutory time frame

should be adjusted accordingly.

       Here, Dr. Shah never amended his answer to correct the

misstatement.         Accordingly, we remand this matter and direct

that   he   file     an   amended    answer     within    fifteen     days    of   this

opinion.     If he fails to do so, he will be deemed to have waived

the AOM requirement.           Plaintiff shall have sixty days from the

date the amended answer is filed, extendable to 120 days on good

cause, to file an AOM.             The trial court shall timely conduct a

Ferreira conference no later than ninety days after the amended

answer is filed unless defendants first notify the court they do

not    dispute       that    the     AOM    complies       with     the      statutory

requirements.        This result serves the policy underlying the AOM

statute     and    preserves      the    procedural      safeguards    our     Supreme

Court has established to prevent the type of "sideshow" that

occurred here due to a pleading's misstatement and the disregard

of the rules concerning basic motion practice.

                                           C.

       We turn to the LSM defendants.                   We begin by noting that

their motion to dismiss suffers from the same deficiency as that

of Dr. Shah, namely, it is based in part on a certification from

counsel     rather    than   from       officers   or    employees    of     LSM   with

firsthand    knowledge       of    the   material     facts.      That     deficiency




                                           20                                 A-2072-14T2
continues in their appellate brief, where they assert that Dr.

Shah "is a practicing geriatric medicine physician, as well as

the Medical Director at Crane's Mill" without citing to the

appellate appendix or transcript as required by R. 2:6-2(a)(4).

      In   any   event,   on    appeal    the   LSM    defendants   argue       that

because Dr. Mehlman "is clearly an emergency medicine expert,"

and   because    Dr.   Shah,    the   director    of    the   facility,     "is    a

practicing geriatric physician," Dr. Mehlman is not equivalently

credentialed and therefore his AOM is inadequate.                   As we have

previously noted, there was no competent evidence before the

trial court to establish the underlying "facts" upon which Dr.

Shah and the LSM defendants based their motion.                  Moreover, the

trial   court    did   not     specifically     address   each   count      –    and

liability theory – of the complaint.

      We add the following concerning the LSM defendants.                  If, on

remand, these defendants move to dismiss the complaint - on a

competent record - the court should address each count of the

complaint before dismissing the case in its entirety.                 In doing

so, the court should bear in mind

            [i]t is not the label placed on the action
            that is pivotal but the nature of the legal
            injury.   Accordingly, when presented with a
            tort or contract claim asserted against a
            professional   specified  in   the   statute,
            rather than focusing on whether the claim is
            denominated as tort or contract, attorneys
            and courts should determine if the claim's



                                         21                               A-2072-14T2
              underlying factual allegations require proof
              of   a   deviation  from   the   professional
              standard of care applicable to that specific
              profession.   If such proof is required, an
              affidavit of merit is required for that
              claim, unless some exception applies.

              [Couri v.         Gardner,    173    N.J.     328,     340
              (2002).]

    Additionally, the court should consider that an AOM is not

necessary to support a claim against a firm whose employee or

agent acted negligently if the claim against the firm is solely

based   on    a    theory     of   vicarious    liability    or    agency.        Hill

Intern., Inc., supra, 438 N.J. Super. at 592-93.                          In such a

situation, however, the plaintiff would need to serve an AOM

from an expert with credentials equivalent to the employee or

agent who deviated from an applicable professional standard of

care.    Ibid.

    On       the   other      hand,   if   plaintiff   intends       to    pursue     a

negligence claim other than one based on the medical malpractice

of the LSM agents and employees, then plaintiff will have to

provide an AOM from an appropriate professional.                   If the precise

credentials        of   the    appropriate      professional       are    uncertain,

either because plaintiff's liability theory is vaguely pleaded

or because defendants have not specified the credentials of the

appropriate professional or both, then the court should resolve

the issues at the Ferreira conference.




                                           22                                A-2072-14T2
Reversed and remanded.   We do not retain jurisdiction.




                           23                        A-2072-14T2
