03-27-09 Highland Lakes Country Club and Community Association
v. Frank W. Nicastro, Sr., and Lisa Ann Nicastro
A-4260-07T1
Third-party defendants, licensed land surveyors, appeal
from the denial of a motion to dismiss a third-party complaint
for failure to comply with the Affidavit of Merit Statute
(Statute), N.J.S.A. 2A:53A-26 to 29. The third-party plaintiffs
are defending against an action for trespass and a boundary
dispute by relying on the accuracy of a survey they obtained
from the third-party defendants. They have asserted no claim
against the surveyors that is not contingent upon their
liability to plaintiff, and plaintiff has not yet complied with
a discovery order to produce a survey calling the line shown on
defendants' survey into question. We conclude that application
of the Statute would be inconsistent with its overall purposes
under the present circumstances of this case.
