On appeal from the Superior Court, Law Division, Passaic County.
Pressler, Dreier and Gruccio, JJ. The opinion of the court was delivered by Pressler, P.J.A.D.
The narrow issue raised by this appeal is whether a complaint is entitled to be deemed filed for purposes of the statute of limitations if it is presumptively received by the Office of the Clerk of the Superior Court prior to the running of the statute but is apparently lost after its arrival and before its docketing. In the circumstances of this case, we answer that question affirmatively.
The facts are simple and largely undisputed. On January 4, 1982 plaintiff Ethel Waite was injured in a collision between her automobile and a Paterson police car. On May 24, 1982 an order was entered by the Law Division pursuant to N.J.S.A. 59:8-9 granting her leave to file a late notice of claim upon the City of Paterson and its police department. The notice was served about a week thereafter. For reasons which do not appear in the record, the complaint, in which plaintiff's husband joined to assert a per quod claim, was not prepared for filing until December 1983. According to the affidavit of Mary Banasiak, plaintiffs' attorney's secretary, on December 20, 1983, she mailed the complaint to the Clerk of the Superior Court by certified mail. Annexed to her affidavit is the post-office certificate of mailing, bearing the stamped date of December 20, 1983, indicating the attorney's return address, showing the correct address of the Superior Court Clerk, and including the notation "Waite v. City of Paterson." As of that date, 15 days remained prior to the running of the two-year statute of
limitations prescribed both by N.J.S.A. 2A:14-2 and N.J.S.A. 59:8-9.
On January 18, 1984 Banasiak, while preparing the summonses, first realized that she did not have the customary docket card from the Clerk's Office which, in effect, acknowledges the filing of the complaint and advises of the assigned docket number. She therefore called the Clerk's Office to ascertain the docket number, was told that the computer was "down" and was asked to call the following day. Her telephone inquiry the next day resulted in the advice that there was no record of the filing of the complaint. Her subsequent request to the post office for a trace of the mailing resulted, insofar as the record shows, in no further information. It does, however, appear that the mailing was not returned to the sender and never did show up in the Clerk's Office.
Plaintiff's attorney responded to this problem by simultaneously pursuing two separate avenues of recourse. On January 26, 1984 he filed an ex parte motion, returnable February 10, seeking leave to file the original complaint nunc pro tunc as of December 20, 1983. He also on that date mailed to the Clerk an amended complaint, reiterating the allegations of the original complaint, together with the required $75 filing fee. The irrelevant response he received from the Clerk's Office was a form letter, returning the filing fee with the typed-in explanation that "No fees charged for issuing 1st Writ of Execution." He did not fare much better with his nunc pro tunc motion which was denied on the return date "without prejudice." The complaint was, however, accepted for filing on that date by the motion judge. In any event, defendants were served with process in March 1984 and ultimately filed and served their answer, raising, among other affirmative defenses, the bar of the statute of limitations. In August 1984 they moved for summary judgment dismissing the complaint on that ground, and that application was granted in October 1984. Plaintiffs appeal both from that order and from the denial of their motion for reconsideration thereof.
At the outset, it is important to note that defendants do not undertake to dispute the assertions of Banasiak's affidavit. As we understand their position, they accept those assertions as true for the purposes of the limitations issue and argue simply that the reason for the apparent non-filing of the complaint prior to the running of the statute is irrelevant. The trial judge also did not doubt the veracity of Banasiak's statement but agreed with defendants that proper application of the statute of limitations was not thereby affected. For these reasons and in view of the documentary support of the certified mail receipt, we also accept Banasiak's statement as true and accurate. We disagree, however, with the trial court's opinion of irrelevance to the limitations issue.
N.J.S.A. 2A:14-2 requires a personal injury action to be "commenced" within two years after its accrual. An action is commenced by the filing of a complaint. R. 4:2-2. N.J.S.A. 59:8-9 prohibits the "filing" of a tort claim action later than two years from the date of its accrual. The sole question before us then is whether, under all the circumstances here, this complaint was "filed" on or before January 4, 1984.
The rules of court define "filing" circuitously. R. 1:5-6(b) specifies the place at which and the official with whom filing is to be accomplished. R. 1:5-6(c) requires the clerk to "file all papers presented to him for filing" unless unaccompanied by the filing fee. These provisions imply that filing consists of two actions: first, the presentation of the document to the clerk and, second, the clerk's appropriate disposition of it. Despite, however, the implication that a completed filing requires the proper disposition by the clerk as well as the presentation by the filer, our courts have consistently recognized that where the paper is timely presented by the filer, its filing cannot be defeated by any subsequent act of inadvertence, neglect or impropriety by the ...