Opinion
DOCKET NO. A-3562-13T3
06-18-2015
DAVID PERSKY, Plaintiff-Appellant, v. NEW JERSEY TRANSIT CORPORATION, Defendant-Respondent.
Franzblau Dratch, P.C., attorneys for appellant (Brian Michael Dratch, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Erica T. Parkes, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-001188-14. Franzblau Dratch, P.C., attorneys for appellant (Brian Michael Dratch, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Erica T. Parkes, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff David Persky appeals from the Law Division's order denying his motion to file a late Notice of Tort Claim, N.J.S.A. 58:8-9, as provided in New Jersey's Tort Claim Act (TCA), N.J.S.A. 58:8-1 to -11, regarding injuries he allegedly sustained as the result of defendant, New Jersey Transit's (NJT) negligence. The Law Division denied his application after determining the "identity of defendant was not obscured [and e]xtraordinary circumstances [were] not . . . demonstrated." On appeal, plaintiff argues, without reference to any legal authorities, that his service of the notice on the State of New Jersey within ninety days of his accident, satisfied his obligation to serve NJT. NJT responds by arguing service on the State cannot serve as a substitute for service on NJT, and plaintiff failed to establish extraordinary circumstances warranting relief from the TCA's time requirements.
We have considered these arguments in light of our review of the record and applicable law. We affirm.
Plaintiff alleges he fell and was injured on September 12, 2013, as he departed from a NJT bus. He subsequently underwent surgery for the repair of his Achilles tendon, which he alleges to have injured in his fall from the bus.
On October 12, 2013, the State acknowledged receipt of a notice of tort claim, as required by the TCA, N.J.S.A. 59:8-3, which plaintiff served on it, believing the State was the owner of the bus. In the same notice, he also named as the State's employee responsible for his injuries, a "New Jersey Transit bus operator." On December 18, 2013, the State responded to the notice by informing plaintiff he served the wrong entity because NJT was the bus's owner.
On February 21, 2014, plaintiff filed his complaint against NJT and a notice of motion seeking to file a late notice of tort claim. N.J.S.A. 59:8-9. In his supporting certification, plaintiff recited the history of his service of the notice on the State and its response. He explained that he served the State because it was "the party whom [he] believed to be the entity responsible for NJ Transit vehicles." The court considered the motion, without oral argument, and entered its order on March 28, 2014, denying plaintiff's motion. This appeal followed.
"Among the most important limitations that the [TCA] imposes on would-be claimants are the ones that are found in the statutory provisions that govern a claimant's obligation to file a notice of tort claim as a prerequisite to initiating litigation" against a public entity. D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013). No action for damages based on a negligent act of a public entity or public employee may proceed without submission of a notice of claim as prescribed by statute. N.J.S.A. 59:8-3 to -11.
In Beyer v. Sea Bright Borough, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip. op. at 6), we recently had occasion to summarize our standard of review for trial court decisions granting or denying permission to file a late notice of claim and specifically, the requirements for the filing of a late notice. We stated:
The [TCA] provides that a party has ninety days from the accrual of his claim to file notice of a claim against a public entity. N.J.S.A. 59:8-8(a). This notice requirement was created
(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet.
[Moon v. Warren Haven Nursing Home, 182 N.J. 507, 514 (2005) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)).]
N.J.S.A. 59:8-9 allows late filing for the notice of claim under certain circumstances.
A claimant who fails to file notice of his claim within 90 days as provided in [N. J.S.A.] 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time
within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.
[Ibid. (emphasis added).]
The decision to grant a plaintiff permission to file a late notice of claim "'is a matter left to the sound discretion of the trial court.'" R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340 (App. Div. 2006) (quoting Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 403 (App. Div. 1996), overruled on other grounds by Beauchamp, supra, 164 N.J. at 120). Nevertheless, this "discretion is limited" because the late claimant must show "'sufficient reasons constituting extraordinary circumstances' for the delay and [that] there is no 'substantial prejudice' to the public entity or employee." Ibid. (quoting Ohlweiler, supra, 290 N.J. Super. at 403). Findings about "the lack of 'substantial prejudice' and the presence of 'extraordinary
circumstances' . . . must be expressly made in order to comply with the legislative mandate and to justify the entry of an order permitting the filing of a late notice of claim under N.J.S.A. 59:8-9." Allen v. Krause, 306 N.J. Super. 448, 455-56 (App. Div. 1997).See also McDade v. Siazon, 208 N.J. 463, 475-77 (2011).
[Id. at 6-7 (footnote omitted).]
When a motion to allow a late notice is filed within one year, we must determine "whether extraordinary circumstances exist justifying a late notice." Beauchamp, supra, 164 N.J. at 118-19. We must scrutinize the specific facts to determine if sufficient reasons exist constituting extraordinary circumstances to excuse the late attempt to file a notice of claim. Lowe v. Zarghami, 158 N.J. 606, 626 (1999). "Not any one factor constitutes 'sufficient reasons,' but courts consider a combination of factors." Id. at 629 (quoting Lamb v. Global Landfills Reclaiming, 111 N.J. 134, 149 (1988)). Extraordinary circumstances must be determined on a case-by-case basis. Allen, supra, 306 N.J. Super. at 455. "The inquiry focuses on the reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor." McDade, supra, 208 N.J. at 477.
The correct tortfeasor must be determined because the TCA requires that notice be served upon the correct responsible public entity. N.J.S.A. 59:8-8. The statutory definition of the State as a public entity, excludes any state authority that can sue or be sued in its own right. N.J.S.A. 59:1-3 defines "State" to "mean the State and any office, department, division, bureau, board, commission or agency of the State, but shall not include any such entity which is statutorily authorized to sue and be sued." (emphasis added). The statute governing NJT's establishment, N.J.S.A. 27:25-4, specifically authorizes NJT to "sue or be sued." N.J.S.A. 27:25-5(a).
A plaintiff's unfamiliarity with the TCA's requirements does not excuse a failure to file the notice with the correct public entity. "[I]gnorance of the [TCA's requirements] without more, does not constitute sufficient reason for [the] delay." S.P. v. Collier High Sch., 319 N.J. Super. 452, 465 (App. Div. 1999) (third alteration in original) (citation and internal quotation marks omitted). In order for a plaintiff to serve a late notice of claim because he or she was unware of the correct entity to timely serve, a plaintiff must establish extraordinary circumstances by demonstrating that the correct entity's identity was somehow obscured or plaintiff was misled. As we have previously observed:
There is an obvious distinction between knowing that one has a cause of action against a public entity and not pursuing it properly and timely for personal reasons and, on the other hand, not timely knowing or being chargeable with timely knowledge
that a public entity may be liable for an injury . . . . [T]he extraordinary-circumstances requirement is met where a plaintiff, within the ninety-day period, neither knows nor is chargeable with knowing of the existence of a cause of action against a public entity.
[Blank v. City of Elizabeth, 318 N.J. Super. 106, 113 (App. Div.), aff'd in part and modified in part, 162 N.J. 150 (1999).]
The failure to conduct a reasonable investigation to determine the proper public entity allegedly responsible for a plaintiff's injury is not an extraordinary circumstance, see Blank, supra, 162 N.J. at 152-53, and the absence of an explanation or proof of due diligence in the record establishing plaintiff's efforts to determine the proper entity's identity "precludes plaintiff from satisfying N.J.S.A. 59:8-9's other requirement that a claimant file a late notice of tort claim within "a reasonable time." Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 461 (App. Div. 2008). "The existence of a reasonably prompt and thorough investigation is thus the crucial inquiry." McDade, supra, 208 N.J. at 477-78. Where it is not undertaken, a "notice served upon the incorrect public entity . . . [will] not absolve plaintiffs of the obligation to promptly identify . . . and serve a timely notice of claim. Id. at 479. Justification will be found to exist when a litigant is diligent and cannot ascertain the true identity of the responsible public entity because of the State's dilatory tactics or delay in responding to plaintiff's investigation. See Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 135 (1994).
Under the "unique facts" of Feinberg, which do not exist in plaintiff's case here, the Court found the plaintiff in Feinberg could not have determined from recorded documents the proper public entity to serve notice upon and significantly found the State prevented the plaintiff from ascertaining the proper entity. Ibid. The Court stated:
[The plaintiff's] counsel prudently served interrogatories to ascertain the identity of other potential defendants. The original defendants failed to inform her counsel of the [proper entity's] role until well after the expiration of the one-year grace period of N.J.S.A. 59:8-9. Worse, through delay in answering the complaint and interrogatories, defendants failed to disclose the identity of the [proper public entity] for two years beyond the accrual of the claim. See N.J.S.A. 59:8-9 . . . . Nothing in the [TCA] evinces the legislative intent that governmental entities, whether intentionally or unintentionally, should be able to impale a diligent claimant on the Act's technical requirements for notification. Murray v. Brown, 259 N.J. Super. 360, 365 (Law Div. 1990) ("A governmental entity should [not] feel free to ignore the claimant in the hope that within a short time it might be able to use a technical cavil to avoid fair litigation.").
In the singular context of this case, notification to [the State's department's] commissioner was tantamount to notification to the [proper public entity]. Although an
autonomous entity, the [proper public entity] is "in but not of" the [State's department]. . . . Furthermore, the [same] commissioner serves as the chief executive officer and chairman of the [proper public entity]. When viewed against the background of defendants' dilatory tactics, the unique facts of this case support the conclusion that notification to the commissioner constituted notification to the [correct public entity].
[Ibid. (citations omitted).]
Contrary to plaintiff's argument, service upon the State cannot satisfy the requirement for service on NJT as a matter of law, especially where, as here, plaintiff knew of NJT's involvement with the accident by being responsible for the bus's operation. Plaintiff here failed to provide any explanation for not serving the correct entity or, for that matter, waiting two months before he sought permission to file a late notice after he was notified that NJT was the responsible party. Also, there was no evidence that the State interfered with any attempt by plaintiff to ascertain NJT's involvement. Under these circumstances, we conclude the motion judge decided plaintiff's motion in accordance with the TCA's requirements.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION