Raising an issue for the first time in a reply brief is improper. Because the issue has not been considered by the motion judge nor properly addressed by the parties in this appeal, we decline to decide the case on this basis and take no position on the issue's merits. The motion judge dismissed Berlin's complaint because he concluded that Berlin sued an engineering firm and therefore only an engineer could be the appropriate licensed person to execute an affidavit of merit under the Act. There is much support in the record for Berlin's position. Finally, as noted above, Berlin submitted four affidavits from New Jersey licensed professional engineers, each attesting that he could not sign an affidavit of merit, not because the case lacked merit, but because the issues involved the site location of a municipal well, which required the specialized skills of a professional hydrogeologist.
Berlin is correct in that regard.
The firm would be responsible for any negligent acts of its employee hydrogeologist. The firm may also be responsible for the hydrogeologist's work on an agency theory. Thus, the fact that Berlin failed to sue the hydrogeologist is not fatal to its main contention. The substantial compliance doctrine has been recognized as pertinent to affidavit of merit cases. Most recently, we have found a timely filed but late served affidavit and a signed but unsworn and uncertified expert report to substantially comply with the Act.