SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2572-19

JAY BONANZA BRILEY,

Plaintiff-Appellant,

v.

EDWARD DIMON and

CARLUCCIO, LEONE,

DIMON, DOYLE

& SACKS, LLC,

Defendants-Respondents.

___________________________

Argued November 9, 2021 – Decided February 4, 2022

Before Judges Haas and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Docket No. L-1626-18.

Raphael Mark Rosenblatt argued the cause for 

appellant (Rosenblatt Law, PC, attorneys; Jay Bonanza 

Briley, on the briefs).

Gary Ahladianakis argued the cause for respondents

(Carluccio, Leone, Dimon, Doyle & Sacks, LLC, 

attorneys; Gary Ahladianakis, of counsel and on the 

brief).

NOT FOR PUBLICATION WITHOUT THE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.
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A-2572-19

PER CURIAM

Plaintiff Jay Bonanza Briley, pro se,1appeals from (a) a May 20, 2019 

order changing the track assignment from track 1, case type 511-action on 

negotiable instrument to track 3, case type 607-professional malpractice; (b) a 

November 12, 2019 order dismissing plaintiff's case with prejudice pursuant to 

N.J.S.A. 2A:53A-27 for failure to provide an Affidavit of Merit (AOM) within 

the 120-day deadline; and (c) a January 13, 2020 order denying plaintiff's motion 

for reconsideration. We affirm. 

We discern the following facts from the record. On August 2, 2018, 

plaintiff filed a complaint in Burlington County against defendants Edward 

Dimon and Carluccio, Leone, Dimon, Doyle & Sacks, LLC alleging breach of 

contract.2 The complaint stems from an underlying federal court action in which 

plaintiff retained defendants to negotiate with the United States Attorney in 

connection with plaintiff's already existing habeas corpus petition seeking 

plaintiff's immediate or earlier release from incarceration. In his Burlington 

1 Plaintiff proceeded pro se for the entirety of his trial court case.

2 Plaintiff first filed a similar complaint in the United States District Court for the 

District of New Jersey alleging breach of contract and ineffective assistance of 

counsel, but that case was dismissed with prejudice on November 27, 2018 following 

plaintiff's motion to withdraw. 
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County complaint, plaintiff alleged defendant Edward Dimon breached their 

contractual agreement by failing to file a notice of appearance in court or provide 

assistance, thereby causing plaintiff physical and mental injury. Plaintiff sought 

$6,505,000 in compensatory damages and $13,010,000 in punitive damages. 

Defendants contend "Dimon did successfully negotiate [o]n behalf of [p]laintiff 

an early release of six months of [p]laintiff’s sentence to permit entry into a halfway house."3

 On August 7, 2018, the case was assigned to track 1. 

Defendants filed their answer on March 13, 2019. On April 23, 2019, 

defendants requested a Ferreira4 hearing, which was scheduled for June 14, 

2019. On May 20, 2019, before the conference, the court ordered the track 

assignment be changed from track 1 to track 3, case type 607. 

At the June 14, 2019 Ferreira hearing, defendants requested the court 

"enter an order requiring a deadline for an [AOM] to be provided." The judge 

then asked plaintiff if he knew that he "must have an affidavit from another 

attorney who says or swears under oath that the defendants have violated" the 

standard of care. At that point, plaintiff argued his case was actually a breach 

of contract case, to which defendants argued even though plaintiff labeled his 

3 There is nothing in the record to substantiate or repudiate defendants' claim.

4 Ferreira v. Rancocas Orthopedics Assocs., 178 N.J. 144 (2003).
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case a "breach of contract" case, plaintiff was in essence asserting a malpractice 

claim. After hearing more arguments from both sides, the judge stated, "I think 

the best way to handle this or the way we’ll have to handle it is for you to file a 

motion and the Court will decide it since you and the plaintiff disagree on the 

cause of action, I think we should handle it that way." Neither party, however, 

filed a motion on that issue. 

On September 24, 2019, defendants filed a motion to dismiss based on

plaintiff's failure to file an AOM within 120 days pursuant to N.J.S.A. 2A:53A27. The 120-day mark expired on July 11, 2019. On October 1, 2019, plaintiff 

filed a motion to compel discovery from the United States Parks Police and from 

defendants. That same day, plaintiff also filed a motion to amend the complaint 

to include a claim of ineffective assistance of counsel. On October 16, 2019, 

plaintiff filed a motion for leave to file an AOM, which he had obtained on 

October 8, 2019, 209 days after defendants filed their answer and eighty-nine 

days after the 120-day deadline allowed by the AOM statute. 

On November 8, 2019, the court heard arguments on the motions. At that 

hearing, plaintiff argued he was never informed about the track change and was 

not properly notified about the need for an AOM at the June 14, 2019 hearing. 

Plaintiff also testified he was only informed about the need for an AOM after he 
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received defendants' motion to dismiss and contacted the court's clerk. Once he 

was "formally" appraised of his obligation to provide an AOM, plaintiff testified 

he immediately obtained one and attempted to submit it to the court. 

Defendants argued plaintiff failed to present an exceptional circumstance 

to justify filing an AOM after the 120-day period. Defendants asserted that 

ignorance of the requirement is not an exceptional circumstance. Defendants 

also argued the legislative statute regarding the time frame for filing an AOM is 

not a requirement that the court can relax. 

On November 12, 2019, the judge issued an order granting defendants' 

motion to dismiss and denying plaintiff's motions. In the judge's statement of 

reasons accompanying her November 12, 2019 order, the judge stated, "[t]he 

[c]ourt has limited discretion in this area. N.J.S.A. 2A:53A-27 allows for at 

maximum a 120-day deadline to file an [AOM]." The judge reasoned plaintiff 

was "alerted that an [AOM] was due" at the June 14, 2019 Ferreira hearing, and 

thus the case should be dismissed because plaintiff failed to timely file the 

required AOM. 

On December 2, 2019, plaintiff filed a motion for reconsideration, which 

was denied by order dated January 13, 2020. The judge reasoned the transcript 

of the June 14, 2019 Ferreira hearing was not new evidence and even if it was, 
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"a reading of the transcript shows that [p]laintiff was indeed put on notice that 

he was required to file an [AOM] but failed to do so within the time required." 

The judge also rejected plaintiff's argument that he could not see the order 

changing the track since "e-courts is freely accessible to any self-represented 

litigant via the [c]ourt's website." This appeal followed.

On appeal, plaintiff raises the following arguments for our consideration:

POINT I

[THE TRIAL COURT ERRED IN DISMISSING 

PLAINTIFF’S COMPLAINT WITH PREJUDICE FOR 

FAILURE TO COMPLY WITH THE FILING OF AN 

AFFIDAVIT OF MERIT IN ACCORDANCE WITH 

REQUIREMENTS OF N.J.S.A. 2A:53A-27, 

BECAUSE THE COURT FAILED, PURSUANT TO 

RULE 4:5B-4, TO ALERT THE PLAINTIFF THE 

NEED TO FILE AN AFFIDAVIT OF MERIT, AND 

WHEN THE AFFIDAVIT MUST BE FILED. THE 

COURT QUESTIONED THE PLAINTIFF IF HE WAS 

AWARE THAT HE MUST FILE AN AOM, BUT THE 

COURT FAILED TO CORRECT THE PLAINTIFF 

AND PLAINLY DIRECT THE PLAINTIFF HE MUST 

SUBMIT AN AOM. IMPORTANTLY UNDER R 

4:5B-4, THE COURT IS REQUIRED TO TELL THE 

PLAINTIFF WHEN THE AOM MUST BE FILED. IF 

THE TRIAL COURT HAD, IT WOULD HAVE 

EFFECTIVELY LESSENED THE PROCEDURAL 

BURDENS IN THIS CASE.]

POINT II

[THE TRIAL COURT FAILED TO PROVIDE A 

CASE MANAGEMENT ORDER, PURSUANT TO 
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RULE 4:5B-4(B). A CASE MANAGEMENT ORDER 

SHALL MEMORIALIZE THE CONFERENCE 

CONDUCTED UNDER PARAGRAPH (A) OF THIS 

RULE AND SHALL ADDRESS: (1) THE 

SUFFICIENCY OF THE AFFIDAVIT OF MERIT; (2) 

WHETHER THERE ARE ANY DISPUTES 

REGARDING THE AFFIDAVIT OF MERIT UNDER 

N.J.S.A. 2A:53A-41.]

This court reviews a trial court's decision to dismiss a complaint under the 

AOM statute de novo. Castello v. Wohler, 446 N.J. Super. 1, 14 (App. Div. 

2016). This court also reviews de novo a trial court's determination of whether 

an AOM is required and whether plaintiff has demonstrated extraordinary 

circumstances as a defense to the AOM statute. Triarsi v. BSC Grp. Servs., 

LLC, 422 N.J. Super. 104, 113 (App. Div. 2011). 

N.J.S.A. 2A:53A-27 provides in pertinent part: 

In any action for damages for personal injuries, 

wrongful death or property damage resulting from an 

alleged act of malpractice or negligence by a licensed 

person in his profession or occupation, the plaintiff 

shall, within [sixty] 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 one 

additional period, not to exceed [sixty] days, to file the 
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affidavit pursuant to this section, upon a finding of 

good cause.

To determine whether the AOM statute applies to a particular claim 

against a "licensed person," the court must consider three factors: 

(1) whether the action is for "damages for personal 

injuries, wrongful death or property damage" (nature of 

injury); (2) whether the action is for "malpractice or 

negligence" (cause of action); and (3) whether 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" 

(standard of care). 

[Triarsi, 422 N.J. Super. at 114 (alteration in original) 

(quoting Couri v. Gardner, 173 N.J. 328, 334 (2002)).] 

In evaluating the cause of action and the nature of the injury to determine 

whether a claim requires an AOM, "courts must look to the underlying factual 

allegations, and not how the claim is captioned in the complaint . . . . [I]t is the 

nature of the proof required that controls." Ibid. (alteration in original) (quoting 

Syndicate 1245 at Lloyd's v. Walnut Advisory Corp., 721 F. Supp. 2d 307, 315 

(D.N.J. 2010)). Further, "attorneys and courts should determine if the claim's 

underlying factual allegations require proof of a deviation from the professional 

standard of care applicable to that specific profession." Couri, 173 N.J. at 340.
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Here, each factor is satisfied, indicating that plaintiff's claim falls within 

the purview of the AOM statute. Regarding the first factor, plaintiff's complaint 

sought compensatory and punitive damages for mental, physical, and monetary 

harm he suffered as result of defendants' conduct. Therefore, plaintiff is clearly 

seeking damages for personal injury.

Concerning the second and third factors, plaintiff's complaint alleged 

defendants' conduct fell "below the norm of adequate negotiation." In his brief, 

plaintiff states defendants were hired to: "represent him in negotiations with the 

U.S. Attorney; . . . be his legal representation in Federal Court for . . . 

[p]laintiff’s Habeas Corpus case; and . . . most importantly serve a subpoena in 

order to receive exculpatory evidence on [p]laintiff’s criminal case." Plaintiff 

then states, "[d]efendant’s failure to file [a notice of appearance] caused . . .

[p]laintiff to remain incarcerated and not receive the exculpatory evidence that 

more than likely would have reversed his sentence." 

The retainer agreement between the parties provided defendants would

"represent [plaintiff] in negotiations with the U.S. Attorney and in Federal 

Court." The retainer agreement also stated "[t]he key is developing a position 

with the U.S. Attorney which is beneficial to both [plaintiff] and the U.S. 

Attorney. A good example would be agreement for 'time served' to avoid a 
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determination on the legal issues." Defendants contend Dimon did successfully 

negotiate an early release of six months. Plaintiff admits "[defendants]

contacted the U.S. Attorney and made several calls." Defendants therefore 

performed under the retainer agreement. 

Accordingly, plaintiff alleged defendants' performance fell below an 

undefined standard of care.5 Plaintiff clearly expected defendants to negotiate 

a shorter sentence, or even a reversal of his conviction and/or sentence, and he 

filed this lawsuit when he was disappointed with the result achieved. 

Defendants' decision not to file a notice of appearance or take further action is 

a question of whether they adequately performed their duties as plaintiff's 

counsel. Notwithstanding plaintiff pleading his cause of action as a breach of 

contract, based on the underlying allegations he is undoubtedly asserting a claim 

of malpractice and alleging that defendants failed to adhere to professional 

standards. See Couri, 173 N.J. at 338 ("[A] breach of contract claim for failing 

to perform up to professional standards [i]s within the ambit of the [AOM] 

statute, regardless of the phrasing.").

5

In plaintiff's federal complaint, which mirrors the Burlington County complaint, 

plaintiff consistently alleged "ineffective assistance of counsel" and cited multiple 

instances where defendants did not perform adequately. 
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We also reject plaintiff's argument that his non-compliance should be 

excused based on extraordinary circumstances. "[I]gnorance of the law or 

failure to seek legal advice will not excuse failure to meet the filing deadline of 

N.J.S.A. 2A:53A-27." Hyman Zamft & Manard, LLC v. Cornell, 309 N.J. 

Super. 586, 593 (App. Div. 1998). The 120-day deadline for which to file an 

AOM will not be extended for "carelessness, lack of circumspection, lack of 

diligence, or ignorance of the law." Balthazar v. Atl. City Med. Ctr., 358 N.J. 

Super. 13, 26 (App. Div. 2003). 

In addition, "[p]rocedural rules are not abrogated or abridged by plaintiff's 

pro se status." Rosenblum v. Borough of Closter, 285 N.J. Super. 230, 241 (App. 

Div. 1995). If litigants choose to represent themselves, "they must understand 

that they are required to follow accepted rules of procedure promulgated by the 

Supreme Court to guarantee an orderly process. Such litigants are also presumed 

to know, and are required to follow, the statutory law of this State." Tuckey v. 

Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989).

In this case, plaintiff did not file an AOM until well beyond the 120-day 

requirement. The 120-day deadline was July 11, 2019, and plaintiff did not 

obtain an AOM until October 8, 2019, eighty-nine days after the 120-day 
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deadline. Thus, plaintiff has not presented extraordinary circumstances to 

warrant excusing his failure to file a AOM within 120 days.

Finally, we reject plaintiff's argument that the court violated Rule 4:5B-4. 

Rule 4:5B-4 states in pertinent part:

(a) Case Management Conference. Within ninety (90) 

days of the filing of the first answer in all professional 

malpractice cases, the court shall conduct a case 

management conference to address discovery related 

issues, including the sufficiency of an affidavit of merit 

provided pursuant to N.J.S.A. 2A:53A-27 . . . .

(b) Case Management Order. A case management 

order shall memorialize the conference conducted 

under paragraph (a) of this Rule and shall address: (1) 

the sufficiency of the affidavit of merit; (2) whether 

there are any disputes regarding the affidavit of merit 

. . . .

It is undisputed that the parties had a case management conference on June 

14, 2019. At the conference, plaintiff was clearly made aware that a legal 

malpractice claim requires an AOM. That the court never provided a case 

management order does not obviate the requirements of the AOM statute. See

Yagnik v. Premium Outlet Partners, LP, 467 N.J. Super. 91, 109 (App. Div. 

2021) (finding that the lack of a case management order or Ferreira conference 

"provides no legal justification for an untimely AOM.").
13 A-2572-19

To the extent not addressed, we conclude plaintiff's remaining arguments 

lack sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.