This matter is before the court on two separate motions relating to a claim under the New Jersey Tort Claims Act. Plaintiff has made a motion for leave to file a late claim pursuant to N.J.S.A. 59:8-9 and defendant Jersey City has made a motion to dismiss the complaint for failure to comply with the notice provisions of the act. N.J.S.A. 59:8-8.
On December 25, 1973 plaintiff suffered injuries as the result of a fall which occurred while she was walking on Sip Avenue, Jersey City. She alleges the fall was caused by an improperly recessed or deteriorated manhole cover.
No notice was given to the city and, indeed, even the affidavit accompanying the motion for leave to file a late claim is silent as to nature of the claim except for the general allegation set forth above and the additional statement that the matter was first referred to New Jersey counsel by Pennsylvania counsel on December 22, 1975.
A motion for leave to file a late claim pursuant to N.J.S.A. 59:8-9 was filed January 6, 1976. Suit had already been instituted by the filing of a complaint with the Clerk of the Superior Court on December 24, 1975.
Since the filing of plaintiff's motion for leave to file a late claim, defendant Jersey City has brought a motion to dismiss the complaint for failure to comply with chapter 8 of the Tort Claims Act.
Filing of the Late Notice of Claim
In order to provide for the compensation of injuries negligently caused by public entities, the Legislature enacted the New Jersey Tort Claims Act. N.J.S.A. 59:1-1. In so doing, it declared it to be our public policy "that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein." N.J.S.A. 59:1-2.
The basic approach taken by the Legislature was to reestablish sovereign immunity*fn1 and at the same time grant waiver of that immunity under circumstances and in accordance with conditions set forth in the Act.*fn2 In establishing these conditions the Legislature incorporated a policy of prompt notification by providing that notice of a claim must be given a public entity by a claimant within 90 days of the accrual of the cause of action. 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 the cause of
action 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. 59:8-9.
In the instant case the cause of action accrued on December 25, 1973 when the accident occurred. Lutz v. Semcer , 126 N.J. Super. 288, 297-298 (Law Div. 1974). No claim was filed within 90 days, as required by N.J.S.A. 59:8-8, nor was leave to file a late notice obtained from the Superior Court within one year as permitted by N.J.S.A. 59:8-9. More than a year having elapsed since the accident, plaintiff can no longer file her ...