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Borough Of Berlin v. Remington & Vernick Engineers

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 15, 2001

Plaintiff Borough of Berlin sued defendant Remington & Vernick Engineers (“R&V”) for negligence in planning, designing and implementing a municipal water well. R&V moved for summary judgment based on Berlin’s failure to comply with N.J.S.A. 2A:53A-27, the Affidavit of Merit Statute (the “Act”). R&V contended that the affidavit of Frank Getchell, a professional hydrogeologist, did not satisfy the statutory definition of “appropriate licensed person.” R&V claimed that because Berlin sued only the corporate engineering firm, an affidavit from a licensed engineer was required to satisfy the statute. The motion judge agreed and granted R&V’s motion, denied Berlin’s reconsideration motion, and dismissed plaintiff’s complaint. Berlin appeals from the dismissal of its complaint and R&V cross- appeals claiming Berlin’s litigation was frivolous and it is entitled to attorney’s fees and costs under R. 1:4-8. We conclude that Berlin substantially complied with the Act; and we reverse the dismissal of Berlin’s complaint and remand for further proceedings, rendering the cross-appeal moot.

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