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Dambro v. Union County Park Commission

Decided: October 11, 1974.

VINCENT DAMBRO, JR., PLAINTIFF,
v.
UNION COUNTY PARK COMMISSION, A BODY POLITIC OF THE STATE OF NEW JERSEY, AND BOROUGH OF WATCHUNG, A MUNICIPAL CORPORATION, DEFENDANTS, AND UNION COUNTY PARK COMMISSION, A BODY POLITIC OF THE STATE OF NEW JERSEY, THIRD-PARTY PLAINTIFF, V. BOROUGH OF WATCHUNG, A MUNICIPAL CORPORATION, THIRD-PARTY DEFENDANT



Kentz, J.s.c.

Kentz

The Borough of Watchung (hereinafter Watchung) has filed a motion to dismiss the complaint of plaintiff Vincent Dambro and the third-party complaint of defendant, Union County Park Commission (hereinafter Park Commission) based on noncompliance of the notice of claim provisions of New Jersey Tort Claims Act, N.J.S.A. 59:8 et seq., with particular reliance placed on N.J.S.A. 59:8-4. Plaintiff has made a motion for leave to file a notice of late claim against Watchung pursuant to the provisions of N.J.S.A. 59:8-9.

The case arose out of a severe injury caused to plaintiff on May 28, 1973. He dove into the stream while swimming in the falls area of New Providence Road, Watchung, and hit his head on certain rocks and debris resulting in a broken neck.

On May 30, 1973 counsel for plaintiff sent a letter to the Watchung Police Department advising of his representation of plaintiff in connection with injuries sustained as a result of an accident which occurred two days before at the swimming area. A copy of the police report was sent to plaintiff's counsel. This police accident report contained the name and address of plaintiff, the date and time of the accident, the location of the accident, the fact that plaintiff had dove into the water and could not move the lower part of his body.

The report included a confirmation from Overlook Hospital in Summit that the victim had a broken neck.

On June 11, 1973, two weeks after the date of the accident, counsel for plaintiff sent a letter to the borough tax assessor advising him of the attorney's representation of plaintiff. This letter named plaintiff, gave his address and stated that he plaintiff was injured when "he fell at the 'falls area of New Providence Road' near the waterfall." Plaintiff's counsel requested the tax assessor to advise him as to the owner of the premises in question and whether it be privately owned or owned by the municipality, county or State. This letter was returned with a notation reading "Union County Park Commission, P.O. Box 275, Elizabeth, N.J. 07207."

Plaintiff's counsel notified the Park Commission on or about August 14, 1973, and this original notification was supplemented on September 18, 1973. On the belief that the Park Commission was the sole owner of the premises in question, plaintiff instituted suit against the Park Commission on April 30, 1974. On or about June 18, 1974 plaintiff received a third-party complaint filed by the Park Commission against defendant Watchung, alleging the premises in question were owned in whole or in part by Watchung.

Plaintiff filed a notice of motion for an order permitting the joinder of the third-party defendant, Watchung, as a direct defendant. This motion was granted and an amended complaint was served upon both defendants on July 26, 1974.

Watchung has brought a motion before this court to dismiss the plaintiff's amended complaint. Watchung urges that the notice requirements as set forth in N.J.S.A. 59:8-4 have not been satisfied by plaintiff's letters to the Watchung Police Department and the tax assessor.

N.J.S.A. 59:8-4 states:

A claim shall be presented by the claimant or by a person acting on his behalf and shall include:

(a) The name and post office address of the claimant;

(b) The post office address to which the person presented the claim desires notices to be sent;

(c) The date, place and other circumstances of the occurrence or transaction which gave ...


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