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Zwirn v. County of Hudson

Decided: November 5, 1975.

BEATRICE ZWIRN, ACTING INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF TOBIAS ZWIRN, DECEASED, PLAINTIFF
v.
THE COUNTY OF HUDSON, DEFENDANT



Bilder, J.s.c.

Bilder

This is a motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9, a section of the New Jersey Tort Claims Act.

On November 29, 1974 plaintiff's decedent was killed in a two-car head-on collision which occurred on a portion of Route 7 in Kearny known as Cemetery Hill Road. Because of the fact that a death resulted, the accident was thoroughly investigated by the Hudson County Police Department and the Office of the Prosecutor of Hudson County.

On January 9, 1975, in anticipation of a death action against the County of Hudson for improper design and maintenance of the road, plaintiff filed an appropriate notice of claim with that county. It was plaintiff's attorney's belief that the road upon which the accident took place was a county road. This belief was based upon conversations which he had with the county police department as well as the fact that the county police had investigated the accident. On July 16, 1975, some six months later, plaintiff's attorney was notified by the county's insurer that the road belonged, not to the county, but to the State. A subsequent conversation with the Hudson County Engineer's Office seemingly confirmed plaintiff's attorney's initial understanding that this was a county road.

Route 7 is a state highway. It would appear that plaintiff has made a mistake as to fact and has given notice

to the wrong public entity. She now seeks leave to file a late notice of claim upon the State of New Jersey Department of Transportation.

In the New Jersey Tort Claims Act the Legislature incorporated a policy of prompt notification by providing that a notice of claim must be given public entities within 90 days. N.J.S.A. 59:8-8. However, a relief mechanism was built into the act in recognition of the injustice that might arise from an unyielding application of this notice provision. This relief was provided in the form of a discretionary right on the part of the Superior Court to permit the filing of a late notice of claim at any time within one year after the accrual of a claim upon affidavits showing sufficient reasons for failure to file notice of claim within the 90-day period; provided that the public entity has not been substantially prejudiced thereby. N.J.S.A. 58:8-9. In exercising that discretion the court must go through a two-step process: (1) it must determine whether there is sufficient reason for plaintiff's failure to file within the 90-day period and (2) it must determine whether the granting of the relief requested will substantially prejudice the public entity.

In the instant case prompt notice in accordance with the requirements of N.J.S.A. 59:8-8 was given to the wrong public entity. The issue before this court is whether excusable neglect or mistake is "sufficient reason" under N.J.S.A. 59:8-9.

While there have been a number of decisions in New Jersey with respect to the exercise of this discretion by the court,*fn1 the question of whether excusable neglect or mistake is sufficient reason for leave to file a late notice of claim

is novel in this jurisdiction.*fn2 It is not, however, a novel question in other jurisdictions having similar notice provisions with respect to a tort claims act. Excusable neglect has generally been considered to be a "reasonable excuse" for late filing and relief has been granted to the claimant in the absence of prejudice to the state. Annotation, "Attorney's Mistake or Neglect as Excuse for Failing to File Timely Notice of Tort Claim against State or Local Governmental Unit," 55 A.L.R. 3d 930 (1974).

New York, in its Tort Claims Act, has a provision analogous to ours giving the court discretion to grant relief from a failure to file within time upon a showing, among other things, of "reasonable excuse." N.Y. Court of Claims Act, ยง 10 (McKinney 1971). Excusable ...


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