On appeal from Superior Court, Law Division, Middlesex County.
Petrella, Gaynor and Scalera. The opinion of the court was delivered by Petrella, P.J.A.D.
[214 NJSuper Page 169] The complaint filed by plaintiff against the City of Perth Amboy was dismissed on defendant's motion for summary judgment on the ground that plaintiff had not complied with the notice provisions of the Tort Claims Act (the Act), N.J.S.A. 59:1-1, et seq. On this appeal plaintiff contends that she complied with the Act, or if she did not there are "sufficient
reasons" and a lack of substantial prejudice to Perth Amboy so that her claim should be authorized under N.J.S.A. 59:8-9. Alternatively, plaintiff argues that defendant misled her to her prejudice and should be estopped to assert a defense of lateness of formal notice.
The injury which gave rise to the claim involved in these proceedings occurred on October 14, 1983 when plaintiff fell on premises allegedly owned by Perth Amboy. Plaintiff retained an attorney, Mathias E. Rodriguez, in connection with her injury. The record contains a letter, dated January 9, 1984, from Antonio L. Cruz of Rodriguez's office to Perth Amboy purporting to give notice of plaintiff's claim in accordance with N.J.S.A. 59:8-4 and 59:8-8. January 9, 1984 was 87 days after the accident. A green post office certified mail return receipt card which had accompanied the letter contains a "Kilmer Facility" postmark date of February 22, 1984 on the signature side of the card. A blurred "Perth Amboy" postmark on the return address side appears to bear the date February 25, 1984. The copy of the letter presented by defendant Perth Amboy bears a date stamp indicating that the municipality received it on February 24, 1984. That date is 46 days after the date of the letter and 43 days past the 90-day limit period in N.J.S.A. 59:8-8a.
On or about July 18, 1984 plaintiff retained her present attorney. When plaintiff's new attorney received the file from the prior attorney, he wrote a letter dated August 20, 1984 to Perth Amboy advising that he had been substituted as attorney and enclosing a copy of Cruz's letter dated January 9, 1984.
Perth Amboy never responded to either the letter from Cruz or to the August 20, 1984 letter. After plaintiff instituted suit on March 4, 1985, defendant moved for and obtained summary judgment on the ground that the notice of claim was untimely. An order for summary judgment was entered in defendant's favor on July 19, 1985. Plaintiff's attorney thereafter obtained an August 9, 1985 affidavit from Cruz stating that he had
prepared and signed the January 9, 1984 certified mail letter, which he asserted gave proper and timely notice under the Act to Perth Amboy. In addition, a secretary employed by Rodriguez's office stated in her August 9, 1985 affidavit:
2. On January 9, 1984, I was instructed by Antonio L. Cruz, Esquire to type and mail out a certified letter to the City of Perth Amboy, in accordance with the New Jersey Tort Claims Act, with regard to the matter of Carmen Guzman vs. City of Perth Amboy. Said copy of letter is attached hereto.
3. On January 9, 1984, I dropped off the certified letter to the City of Perth Amboy in a mail box in the City of Perth Amboy.
These affidavits were submitted by plaintiff for the first time in connection with a motion for "reconsideration"*fn1 dated August 12, 1985. The motion was denied by order entered September 25, 1985. Plaintiff has appealed.
Failure to comply with the 90-day requirement of N.J.S.A. 59:8-8a, unless application is made within one year under N.J.S.A. 59:8-9, bars suit against the public entity. See generally, Priore v. State, 190 N.J. Super. 127 (App.Div.1983); Bell v. County of Camden, 147 N.J. Super. 139 (App.Div.1977); Department of Transportation v. P.S.C. Resources, Inc., 159 N.J. Super. 154 (Law Div.1978); Reale v. Township of Wayne, 132 N.J. Super. 100 (Law Div.1975). Plaintiff did not file a motion for permission to submit a late notice of claim within one year of the accrual of her claim as ...