                         NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5686-14T4

FERNANDO A. PORTES,

        Plaintiff-Appellant,

v.

HERBERT TAN and HERBERT TAN LLC,

        Defendants,

and

WILLIAM MICHELSON,

        Defendant-Respondent.

_____________________________________

              Argued November 2, 2016 – Decided June 12, 2017

              Before    Judges    Fuentes,    Carroll    and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              4116-14.

              Fernando A. Portes,         appellant,     argued    the
              cause pro se.

              Paul L. Croce argued the cause for respondent
              (McElroy, Deutsch, Mulvaney & Carpenter, LLP,
              attorneys; Robert B. Hille, of counsel and on
              the brief; Mr. Croce, on the brief).
PER CURIAM

     Plaintiff Fernando Portes appeals from an order of the Law

Division dismissing his legal malpractice complaint for failure

to comply with the requirements of the Affidavit of Merit Act

(AOMA), N.J.S.A. 2A:53A-26 to -29.    We affirm.

     On September 10, 2014, plaintiff filed a pro se civil action

against    attorney   William   Michelson,   alleging   professional

malpractice.   Plaintiff originally hired Michelson to submit an

expert report in support of his legal malpractice action against

the attorneys who represented him in an employment discrimination

case against Johnson & Johnson.    The latter case was presented to

a jury, which returned a no-cause verdict in favor of Johnson &

Johnson.   The Law Division dismissed plaintiff's legal malpractice

action against his trial attorneys, following its rejection of

Michelson's expert report as a net opinion.

     Here, after joinder of issue, Michelson moved to dismiss

plaintiff's legal malpractice action, based on plaintiff's failure

to file a timely affidavit of merit, as required by N.J.S.A.

2A:53A-27.   Plaintiff opposed the motion and cross-moved to amend

his complaint to add a count for breach of contract.    The parties

appeared for oral argument before Judge Barry P. Sarkisian on May

8, 2015.     After considering the parties' presentations, Judge

Sarkisian dismissed plaintiff's complaint for failure to comply

                                  2                          A-5686-14T4
with the AOMA and denied plaintiff's cross-motion to amend his

complaint.   Judge Sarkisian made the following findings in support

of his decision:

         I do find that when you look at the essence
         of the complaint that you've made against Mr.
         Michelson,   ultimately   it   goes   to   his
         profession as an attorney in his ability to
         issue a qualified opinion as an attorney,
         which at that time was an opinion against the
         actions or lack of actions taken by [the
         attorneys who tried the Johnson & Johnson
         case]. So, . . . the essence of that claim[]
         is a claim for professional malpractice, which
         requires an affidavit of merit, which you have
         not filed in the time perimeters permitted by
         the [Supreme] Court.

                . . . .

         [T]his complaint is . . . pro se by . . . Mr.
         Portes[.] . . . It's approximately 34 pages,
         [and]   mostly    goes   to   allegations   of
         malpractice against [the attorneys who tried
         the Johnson & Johnson case][.]     . . . [On]
         almost the last page of the complaint against
         Mr. Michelson, . . . [plaintiff] says[:]
         "Defendant, Michelson, breached his contract
         with plaintiff to provide an expert report to
         allow the claims against [the attorneys who
         tried the Johnson & Johnson case][.] . . .
         [W]hile [Michelson] concluded that [these
         lawyers] had committed legal malpractice, [he]
         provided a useless 'net opinion' expert report
         to plaintiff, which plaintiff could not use
         in court, and hence prevent[ed] plaintiff from
         pursuing   legal    malpractice,   breach   of
         contract, and conspiracy claims against [these
         lawyers].   Either Michelson should not have
         issued this report, and hence, would have
         allowed plaintiff to find an expert [who
         would] have issued a report without a net
         opinion, or if he issued his report and

                                 3                          A-5686-14T4
          concluded that [these lawyers] had committed
          malpractice, as he did, he must have properly
          sustained such report and facts on the 12
          positions plaintiff provided he was the most
          qualified [sic], which plaintiff has provided
          to him."

                 . . . .

          [A]s you're framing your complaint, . . .
          that's malpractice.

     Plaintiff   thereafter   filed   a   motion   for   reconsideration

pursuant to Rule 4:49-2. Judge Sarkisian denied plaintiff's motion

for reconsideration, explaining his reasons in a letter-opinion

released to the parties on June 17, 2015.      In his letter-opinion,

Judge Sarkisian comprehensively reviewed plaintiff's litigation

history and the factual predicates underlying his current action

against Michelson.    Applying the standard governing a motion for

reconsideration as explained in Fusco v. Bd. of Educ. of City of

Newark, 349 N.J. Super. 455, 462 (App. Div.) (quoting D'Atria v.

D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), certif. denied,

174 N.J. 544 (2002), Judge Sarkisian did not find any grounds to

alter his May 8, 2015 final determination.

     In this appeal, plaintiff argues the motion judge erred in

dismissing his complaint against Michelson based on the AOMA.

Despite this, plaintiff devotes a great deal of his appellate

brief attacking the merits of Michelson's deficient expert report.

Plaintiff urges this court to reverse Judge Sarkisian's denial of

                                  4                              A-5686-14T4
his motion to amend his complaint and to permit this matter to

proceed as a breach of contract case.

      We review the grant of a motion for summary judgment using

the same standard used by the motion judge.               Globe Motor Co. v.

Igdalev, 225 N.J. 469, 479 (2016) (citation omitted).             We consider

the facts in the light most favorable to the nonmoving party, and

we   give   that   party    the   benefit   of    all   inferences     that   can

rationally be drawn from such facts.             Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 535–36, 540 (1995) (citations omitted).

This standard compels the grant of summary judgment                     "if the

pleadings, depositions, answers to interrogatories and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of

law."   R. 4:46-2(c).       Finally, because summary judgment concerns

only legal questions, our review is de novo.              See Flinn v. Amboy

Nat. Bank, 436 N.J. Super. 274, 287 (App. Div. 2014).

      Applying this standard, we are satisfied that Judge Sarkisian

properly dismissed plaintiff's complaint as a matter of law. There

is no question that plaintiff's cause of action against Michelson

is predicated on the tort of legal malpractice. Although plaintiff

entered into a contract with Michelson, the essence of that

contract    required       Michelson   to   provide      his   legal    opinion

                                       5                                 A-5686-14T4
concerning the performance of other lawyers.                      To prevail in his

cause of action, plaintiff must prove Michelson deviated from the

standard of professional competence expected from an attorney

under these circumstances.            This requires an affidavit of merit.

We discern no legal basis to disagree with the reasons expressed

by Judge Sarkisian.

      Lawyers    are   among       the   class    of    professionals       expressly

covered by the AOMA. N.J.S.A. 2A:53A-26c. The Legislature adopted

the   AOMA    "to    weed     out     frivolous        claims     against      licensed

professionals       early    in    the   litigation        process."        Meehan     v.

Antonellis, 226 N.J. 216, 228 (2016) (citing Ferreira v. Rancocas

Orthopedic Assocs., 178 N.J. 144, 146 (2003)).                    To establish legal

malpractice, a plaintiff must show: "(1) the existence of an

attorney-client      relationship        creating      a   duty    of   care    by   the

defendant attorney, (2) the breach of that duty by the defendant,

and   (3)    proximate      causation     of     the   damages      claimed     by   the

plaintiff."     McGrogan v. Till, 167 N.J. 414, 425 (2001) (citing

Conklin v. Hannock Weisman, 145 N.J. 395, 416 (1996)). Plaintiff's

failure to serve Michelson with a timely and proper affidavit of

merit renders the cause of action legally deficient because "[t]he

submission of an appropriate affidavit of merit is considered an

element of the claim."            Meehan, supra, 226 N.J. at 228.

      Affirmed.

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