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Lameiro v. West New York Board of Education

Decided: October 17, 1975.

JOSE LAMEIRO, AN INFANT BY HIS GUARDIAN AD LITEM, JOSE LAMEIRO AND JOSE LAMEIRO, INDIVIDUALLY, PLAINTIFFS,
v.
WEST NEW YORK BOARD OF EDUCATION, ANTHONY LODERBOLE AND MARK ROGICH, DEFENDANTS



Bilder, J.s.c.

Bilder

[136 NJSuper Page 586] This is a motion by a school board to dismiss a claim by a student for failure to comply with the notice provisions of the New Jersey Tort Claims Act and to dismiss a cross-claim by an alleged employee for indemnity on the ground that the indemnity provision of the Education Law relied on by the cross-claimant has been repealed by the New Jersey Tort Claims Act.

On April 10, 1974 the infant plaintiff received an injury when he was pushed down a stair by another student. At that time the infant plaintiff was one of a group of fourth grade students attempting to enter the school prior to the expiration of the lunch period, and apparently his entrance was barred by an older student assigned to the school entrance as a monitor. It would seem the injury occurred in connection with a confrontation between students attempting to enter the building and the monitor seeking to bar their way.

Suit was started December 18, 1974 without the giving of any of the notices required by chapter 8 of our Tort Claims Act.

Compliance with the Notice Provision of the Act

Plaintiff admits a failure to comply with the requirements of N.J.S.A. 59:8-8 (filing of a claim) or N.J.S.A. 59:8-9 (filing of a late claim). He contends, however, that sufficient notice was given to the appropriate authorities as would amount to substantial compliance with the statutory requirements and thus excuse his technical default.

Initially it should be noted that the filing of the complaint is not substantial compliance. Reale v. Wayne Tp. , 132 N.J. Super. 100, 112 (Law Div. 1975).

Plaintiff contends that substantial compliance was given by virtue of a letter written to the school principal by plaintiff's attorney on April 26, 1974, some 16 days after the accident in which the principal was advised as follows:

I represent the above named in connection with a claim for personal injuries sustained as a result of being pushed down a stairs.

I would appreciate you would mailed [sic] me the name and address of the student who pushed Jose Lameiro and also any details of the accident that are available.

Thank you for your kind cooperation.

There is nothing about this letter that would give any notice of any intention to assert a claim against the public entity nor is there anything ...


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