On appeal from the Superior Court, Law Division, Middlesex County.
Ard, Morton I. Greenberg and Trautwein. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
[191 NJSuper Page 397] Defendants Township of Sayreville (hereinafter called "Sayreville") and State of New Jersey, Department of Transportation (hereinafter called "State") have separately appealed from an order of the trial court dated May 27, 1982 allowing plaintiff to file late claims under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., on behalf of "the infant members of the Estate of Louis D. Barbaria without prejudice" to Sayreville or the State. By our order of August 11, 1982 the appeals were consolidated. [191 NJSuper Page 398] The factual and procedural background of this case germane to this appeal is as follows.*fn1 Decedent, Louis D. Barbaria, while operating a motorcycle on Route 35, a state highway, in Sayreville on October 1, 1980 was involved in a collision with another vehicle resulting in his death the same day. He was survived by his wife, four infant children and one adult child. In February 1982 plaintiff filed claims dated February 10, 1982 for damages as a result of the accident against Sayreville and the State. The New Jersey Tort Claims Act requires such filing as a condition of recovery from a public entity. N.J.S.A. 59:8-8. The forms submitted indicated defendants' liability was predicated on their failure to maintain a "roadway" light in operative condition, in failing to post restrictions on the use of the highway for trucks over four tons, in permitting illegal construction of a driveway and in allowing illegal storage of trucks on private property. On February 16, 1982, plaintiff in her capacity as administratrix ad prosequendum under the wrongful death act, N.J.S.A. 2A:31-1 et seq., and as administratrix of the decedent's estate under the survivorship act, N.J.S.A. 2A:15-3, filed a third amended complaint against Sayreville and the State for damages as a result of the accident.*fn2 There were other parties named as defendants in this complaint but they are not participating on this appeal. After filing this complaint, plaintiff served and filed a motion for leave to file late claims under the New Jersey Tort Claims Act. See N.J.S.A. 59:8-8; N.J.S.A. 59:8-9. Plaintiff attached to her motion affidavits attributing the late notice to neglect of a prior attorney who had represented her. On March 12, 1982, the trial judge signed an order allowing the late claims.
Subsequently the Attorney General moved on behalf of the State for relief from the order of March 12, 1982. He further sought an order dismissing the action. An affidavit of a deputy attorney general indicated that she had not received plaintiff's papers seeking leave to file the late notice until March 9, 1982. When the matter came on before the trial court on the Attorney General's motion, the judge without objection treated the case as if plaintiff was the moving party seeking leave to file late claims. At the hearing plaintiff's attorney explained the substantive basis of her claims against Sayreville and the State.*fn3 Further he pointed out that the delay in giving notice was attributable to the prior counsel's neglect. The deputy attorney general and the attorney for Sayreville argued that under the New Jersey Tort Claims Act the outside limit for the claim to be filed was one year from the date of the accident and decedent's death. Inasmuch as the accident was on October 1, 1980 and decedent died that day they asserted the claim was late. While it was agreed that there may be an extension for filing of an infant's claim, defendants argued that here the infants' claims were derivative from their father's claim. Ultimately the trial judge ruled:
[T]he motion relative to filing the late notice of claim is denied because of a lack of jurisdiction of this court, it being beyond the one-year period, relative to the adults in the case.
Until I know more about the case, I am not satisfied that the infants' claims are purely derivative. I think they do have some direct interest, and insofar as they are concerned, the motion to file late notice of claim is granted.
On May 27, 1982 the judge signed an order granting plaintiff permission to file late claims with respect to the infant "members of the Estate of Louis Barbaria without prejudice." However the action against both Sayreville and the State was dismissed without prejudice, apparently since six months had not elapsed after the filing of the claims. See N.J.S.A. 59:8-8. Presumably the judge believed the case would be reinstituted against Sayreville and the State after six months. Plaintiff was
barred from pursuing any claim against Sayreville or the State "with respect to the adult members of the Estate of Louis D. Barbaria." The order did not distinguish between the wrongful death and survivorship actions. The trial judge's decision with respect to the infants was made without prejudice to Sayreville and the State because the judge was not satisfied that their claims were purely derivative to the claim decedent could have asserted had he survived. It is evident from the transcript that the judge thought information gained during discovery could help the court determine if the claims of the infants could be deemed timely. As already indicated, Sayreville and the State separately appealed from the order.
We are satisfied that the trial judge erred with respect to the subject matter of counts of the complaint against Sayreville and the State brought by plaintiff as administratrix of the decedent's estate. Under N.J.S.A. 59:8-8 a claim relating to a cause of action for death or for injury against a public entity must be presented not later than 90 days after accrual of the cause of action. Both Sayreville and the State are public entities. N.J.S.A. 59:1-3. Under N.J.S.A. 59:8-9 the time for filing the claim may be extended by order of a Superior Court judge to one year after the accrual of the claim. Except on behalf of infants*fn4 or incompetent persons, see N.J.S.A. 59:8-8, the one-year period is not subject to further extension. See Hill v. Middletown Bd. of Ed., 183 N.J. Super. 36, 39-40 (App.Div.), certif. den. 91 N.J. 233 (1982); Yancoskie v. Delaware River Port Authority, 155 N.J. Super. 1, 5 (App.Div.1977), aff'd on other grounds 78 N.J. 321 (1978). Here there is no question but that plaintiff's motion to file late claims was made beyond one year after the accrual of any cause of action for injuries to decedent for losses which he suffered during his life.
We recognize that decedent was survived by four infant children and under N.J.S.A. 59:8-8 the ordinary time limitations
for a claim do not preclude an infant from bringing an action against a public entity after coming to his full age. Further we acknowledge that the trial judge permitted the ...