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Abel v. City of Atlantic City

Decided: November 3, 1988.

CEIL ABEL, PLAINTIFF-APPELLANT,
v.
CITY OF ATLANTIC CITY, ATLANTIC COUNTY, NEW JERSEY, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Dreier and Brochin. The opinion of the court was delivered by Brochin, J.s.c. (temporarily assigned).

Brochin

The issue in this case is whether the tort claims notice filed on behalf of Ceil Abel as a condition for a suit against the City of Atlantic City was adequate in content and timely filed and, if not, whether the motion judge properly denied the claimant permission to file a notice of late claim.

Mrs. Abel alleges that she was injured on November 3, 1986, when she stumbled and fell while she was crossing Atlantic Avenue at its intersection with New York Avenue in Atlantic City. She claims that the cause of her fall was a pothole in the street which resulted from negligent maintenance by the City.

In order to be entitled to maintain a suit for damages against a public entity, a term which includes a municipality, a tort claimant must give timely notice of his claim as prescribed by statute. N.J.S.A. 59:8-3, 4 and 5. A notice is not timely if it is presented later than ninety days after the accrual of the claimant's cause of action (N.J.S.A. 59:8-8) unless:

"[I]n the discretion of a judge of the superior court, [the claimant is] 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 . . ." N.J.S.A. 59:8-9.

In the present case, since Mrs. Abel claims to have suffered her fall on November 3, 1986, the time for presenting her notice of claim expired February 1, 1987. Her attorney presented a notice of claim on her behalf on January 30, 1987, within the prescribed ninety day period. However, the medical records forwarded to plaintiff's attorney from which he obtained the information for the notice of claim included references both to the injury which Mrs. Abel sustained on November 3, 1986, and to a similar injury which she sustained on September 2, 1986. Mrs. Abel's attorney apparently misread the file and in the notice of claim which he filed on her behalf, he mistakenly stated that the accident for which she intended to bring suit had happened on September 2, 1986.

Because plaintiff's attorney thought that his client's accident had occurred on September 2, 1966, he concluded that January 30, 1987, the date on which he filed the notice, was more than ninety days after the accrual of her cause of action. On or about January 31, 1987, he therefore filed a notice of motion pursuant to N.J.S.A. 59:8-9 requesting permission to file a notice of late claim. In support of that motion, counsel filed his own affidavit which stated that neither plaintiff, an eighty-six year old woman, nor the Pennsylvania attorney whom she consulted was aware of the notice requirements of the New Jersey Tort Claims Act, that the matter had been referred to him after the expiration of the ninety-day filing period and that he filed the notice of claim on Mrs. Abel's behalf promptly after receiving the file.

That application to file a notice of late claim was denied on February 27, 1987, for the stated reason that "mere ignorance of the law is not a sufficient reason to excuse noncompliance with the notice requirement." Plaintiff moved for reconsideration of that decision. The motion for reconsideration was granted, but by an order of May 27, 1987, permission to file the notice of late claim was again denied.

Approximately November 2, 1987, plaintiff filed a notice of motion "for declaration that tort claims notice was made within time." In support of that motion, he filed Mrs. Abel's certification and his own affidavit. Plaintiff's attorney testifies, among other things, that he was not able to discuss the case with Mrs. Abel until June 3, 1987, when she ...


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