On appeal from Superior Court, Law Division, Middlesex County.
Antell, Brody and Long. The opinion of the court was delivered by Antell, P.J.A.D.
[219 NJSuper Page 447] Defendant-appellants, consisting of certain governmental entities including the State of New Jersey, appeal from an order dated November 7, 1986 allowing plaintiffs to file a late notice of tort claim under N.J.S.A. 59:8-9. Plaintiffs are 386 individuals who seek damages for personal injury allegedly caused by toxic contamination resulting from the operation of a landfill in
Middlesex County. Their motion for relief was filed in the Law Division October 14, 1986.
The landfill in question has apparently been operated since March 1968, and around January 1981 it was publicly reported that it was being used for the disposal of hazardous wastes. During succeeding years noxious fumes were discharged from the landfill. In March 1986 residents in the area requested the law firm of Lynch, Martin and Philibosian to investigate and determine whether there was a relationship between conditions at the landfill and certain physical ailments and disorders the residents were experiencing. On May 12 and 13, 1986, soil and water samples were collected for analysis at the direction of the attorneys and it was thereafter determined, according to the attorneys' supporting affidavits, that "various toxic wastes, pollutants, and other dangerous substances were present in the area."
N.J.S.A. 59:8-8 requires that a claim notice be presented to the public entity as a condition to suit "not later than the ninetieth day after accrual of the cause of action."
The purpose of the claims notification requirement in this Chapter is two-fold: (a) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (b) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense. [ N.J.S.A. 59:8-3, Comment].
Except as provided in N.J.S.A. 59:8-9, where notice has not been given within the 90 days the claim is "forever barred." N.J.S.A. 59:8-9 provides:
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.
The foregoing statute specifically provides that an application for permission to file a late notice of claim shall be based upon affidavits showing "sufficient reasons" for failure to file within 90 days. Plaintiffs' motion was supported only by two identical affidavits of their attorneys. In addition to the information concerning the ...