LUIS PEREZ VS. ZAGAMI, LLC, ETC., AND NASH LAW FIRM, LLC, ET AL.
A-3268-14T2
This case of first impression presents the question of whether an affidavit of merit is required to support a malicious use of process claim when an advice of counsel affirmative defense is asserted in a SLAPP-back suit. The court concludes it is not.
After a defamation case (SLAPP suit) brought by defendants was dismissed, plaintiff filed a complaint for malicious use of process (SLAPP-back suit). Defendants asserted an advice of counsel affirmative defense in their responsive pleading. Plaintiff moved to amend his complaint to add the law firm and individual attorneys as defendants. The law firm then moved to dismiss the action contending that plaintiff was required to file an affidavit of merit to support his claims.
The court upholds the trial judge's denial of the motion to dismiss. The court finds that a malicious use of process action is an intentional tort requiring proof of malice and not a deviation from a standard of care and therefore no affidavit of merit is needed to support the claim.
