John Roy, as executor of the estate of his wife Golden Marie Roy and in his individual right as her husband, appeals from an order of the Law Division denying his application for leave to file a late claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. The claim would have sought damages from the Township of Mt. Laurel as a result of the death of Mrs. Roy, which occurred after she received emergency treatment from members of the Mt. Laurel Police Department and the local Fellowship Rescue Squad.
Mrs. Roy died on June 14, 1974. In July of that year Mr. Roy retained a law firm in connection with his wife's death. Eventually, a decision was made to bring suit under the Tort Claims Act, which provides that a municipality is liable for torts caused by its employees acting within the scope of their employment. N.J.S.A. 59:2-2. However, no action can be brought under the act unless a notice of claim is presented to the municipality involved within 90
days after accrual of the cause of action. N.J.S.A. 59:8-8. Despite this requirement, it was not until February 1975, eight months after the accident and seven months after counsel was retained, that plaintiff moved for permission to file a late notice of his claim pursuant to N.J.S.A. 59:8-9.*fn1 That section reads as follows:
59:8-9. Notice of late claim.
A claimant who fails to file notice of his claim within 90 days as provided in section 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 1 year after the accrual of his claim provided that the public entity has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion based upon affidavits showing sufficient reasons for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act; provided that in no event may any suit against a public entity arising under this act be filed later than 2 years from the time of the accrual of the claim. [Emphasis supplied.]
With the application to file a late claim, plaintiff's attorney submitted an affidavit stating that for some months after he was contacted by plaintiff he found it extremely difficult to determine in detail the circumstances surrounding Mrs. Roy's death, specifically, which individual or individuals administered the treatment which allegedly caused the death. The affidavit stated further that the matter had been referred to the Burlington County grand jury in September 1974 and that it "was not until this time and in the months following" that it was determined that it was representatives of the Mt. Laurel Police Department and the Fellowship Rescue Squad who had administered the emergency tretament to Mrs. Roy. The affidavit also stated that prior to, during and following the Grand Jury action, an investigation of the death had been conducted by Mr. Roy's attorneys and investigators in their employ. Finally, the
affidavit averred that it was only after receipt of the information concerning who had administered the treatment to Mrs. Roy that the attorney consulted the provisions of the New Jersey Tort Claims Act.
Counsel for Mt. Laurel Township contended that plaintiff had shown no substantial reason for failing to file a timely notice of claim and that plaintiff knew or should have known at the time of the accident that he had a potential claim against the township. Attached to this response was an article from a local newspaper dated July 24, 1974, which discussed Mrs. Roy's death at length and detailed the involvement of the Mt. Laurel police and the rescue squad.
At the argument of plaintiff's application plaintiff's attorney referred the court to the affidavit filed by his firm and asserted that plaintiff's position was that late filing should be permitted unless the municipality could demonstrate prejudice. The trial judge disagreed, holding that plaintiff had not shown "sufficient reasons" for his failure to file within 90 days as required by N.J.S.A. 59:8-9.
Plaintiff moved for reargument and filed an additional affidavit from John Cornely, a private investigator, who stated that in July 1974 he spoke to Major Howard Graff, Mt. Laurel's director of public safety. Cornely related that he had told Graff that he was employed by the law firm which represented Mr. Roy and that he wished to discuss Mrs. Roy's death. Major Graff replied that the matter was under investigation by the prosecutor and that he would neither discuss it nor provide any records. Plaintiff's brief on the motion for reargument stated: "The failure to ...