On appeal from the Superior Court, Law Division, Essex County.
Conford, Pressler and King. The opinion of the court was delivered by Pressler, J.A.D.
[168 NJSuper Page 253] This appeal raises a narrow but novel problem of construction of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. , and, more specifically, of the late
notice provision of N.J.S.A. 59:8-9 in the context of third-party practice. The question before us is whether a plaintiff can be deemed to be in substantial compliance with the one-year limitation of that section of the statute by reason of the action of a nonpublic defendant in filing a notice of claim against and impleading a public third-party defendant within a year following accrual of the plaintiff's cause of action.
The relevant factual complex here is largely undisputed. On May 21, 1975 plaintiff Edith Speer fell on an irregular patch of sidewalk abutted by the property of defendants Armstrong, sustaining serious injuries including a hip fracture. It is her claim that the irregularity which caused her to fall was created by the growth of the root system of a large tree owned by the Borough of Caldwell and located between the sidewalk and the curb. She and her husband, who sues per quod , filed a negligence complaint against the Armstrongs on March 1, 1976. The Armstrongs' attorney inquired of plaintiffs' attorney as to why the borough had not been joined and was advised that the reason therefor was that his investigation had failed to reveal the existence of a Borough Shade Tree Commission. Defendants' attorney was nevertheless confident of municipal liability if there were indeed any liability at all for plaintiff's fall. Accordingly, on May 7, 1976 he filed a notice of claim with the borough in accordance with N.J.S.A. 59:8-4, asserting defendants' right to contribution from the borough in respect of plaintiffs' claim. He also on that date filed a notice of motion for leave to file a late claim pursuant to N.J.S.A. 59:8-9. Such leave was granted on May 20, 1976, and on May 21, 1976, the last day of the first year following the accrual of plaintiffs' cause of action, defendants filed their third-party complaint against the borough and the Borough Shade Tree Commission.
Discovery which was timely initiated vis-a-vis the third-party defendant was unduly delayed in completion because of the intervening incarceration of the borough clerk on unrelated
criminal charges and the consequent inability of the new clerk to attend depositions herein scheduled because of the press of his official duties. The borough clerk's deposition was not taken until February 16, 1978, nearly a year and a half after it had been initially noticed. At that time it appeared, despite previous municipal denials, that the borough had in fact enacted a Shade Tree Commission ordinance in 1936 which was still apparently viable. Based on this information plaintiffs then moved for leave to amend their complaint to assert a direct claim against the borough and its Shade Tree Commission. At the same time defendants Armstrong moved for summary judgment dismissing the complaint as against them because of their asserted nonliability for the personal injury consequences of ordinary wear and tear of a public sidewalk abutting their land. The two motions were heard together. Plaintiffs' was denied and defendants' granted and plaintiffs appeal from both determinations.
We consider first the denial of plaintiffs' motion. It was the court's conclusion that it was without discretion to grant plaintiffs the right to proceed directly against the municipal agencies because of plaintiffs' failure to have filed timely notice. We are of the view, however, that this conclusion was in error in view of the operative circumstances here.
N.J.S.A. 59:8-8 conditions a claimant's right to institute an action against a public entity upon his having filed with it a notice of claim within 90 days following the accrual of his cause of action. N.J.S.A. 59:8-9 authorizes the court in its discretion to extend that time to a period not exceeding one year following accrual upon a showing by the claimant both of "sufficient reasons" for his failure to have filed timely and of the likelihood that permitting the late notice will not substantially prejudice the public entity. Once the year has passed, however, the court is without authority to relieve a plaintiff from his failure to have filed a notice of claim, and a consequent action at law must fail.
We are satisfied that the compulsion of the one-year limitation on the filing of the notice of claim by a prospective plaintiff is not affected by any of the implications of third-party practice or, more particularly, by the question, still unanswered by an appellate court, of whether a nonpublic defendant wishing to implead a public third-party defendant in order to claim right of contribution or indemnity is bound by the notice provisions of N.J.S.A. 59:8-8 and 59:8-9. Compare Markey v. Skog , 129 N.J. Super. 192 (Law Div. 1974), holding that he is not, with Cancel v. Watson , 131 N.J. Super. 320 (Law Div. 1974), and Kingan v. Hurston , 139 N.J. Super. 383 (Law Div. 1976), holding to the contrary. In our view, even if a third-party public defendant can be impleaded after expiration of the time limitations of these provisions, such an impleader would not ...