On appeal from Superior Court, Law Division, Passaic County.
Petrella, Gruccio and Landau. The opinion of the court was delivered by Petrella, P.J.A.D.
Plaintiff Johanna Hamm appeals on leave granted from a denial of her application to reinstate a dismissed motion which had sought leave to file a notice of late claim under the Tort Claims Act, N.J.S.A. 59:8-9. An application for reinstatement or reconsideration of the dismissal of the earlier motion was not granted by the trial court judge.
The underlying cause of action arose on May 20, 1987 when plaintiff fell while walking between the sidewalk and the street at 243 Parker Avenue, Clifton. The cause of her fall was alleged to be holes created by missing bricks laid between the curb and the sidewalk by the City of Clifton.
Clifton rejected an October 22, 1987 notice of claim as beyond the 90 days allowed by N.J.S.A. 59:8-8. Plaintiff's motion to allow filing of a late tort claim within one year under N.J.S.A. 59:8-9 was filed on or about February 19, 1988. The motion was accompanied by affidavits from the plaintiff and her attorney essentially stating that the reasons for the delay had to do with the age and physical condition of the plaintiff, who was almost 75 years of age. The affidavits indicated that because of her injuries and physical conditions plaintiff was prevented from seeking legal advice prior to October 22, 1987. Clifton filed a brief in opposition to the motion. Both parties requested oral argument. We need not go into detail with respect to the underlying facts, because this appeal basically involves a procedural issue.
Although both sides requested oral argument on the Law Division motion, apparently no one appeared on the date scheduled, or at least plaintiff's attorney did not do so. The attorneys later were informed that the motion was dismissed. However, no order memorializing the dismissal was ever entered or signed by the trial judge. Both sides acknowledge this fact and referred to it in the argument on the subsequent motion. The records of the Clerk of the Superior Court and the Passaic
County Court likewise confirm the absence of any order of dismissal of the plaintiff's motion.
When inquiry by plaintiff's attorney's office to the chambers of the trial judge disclosed that the matter was dismissed, counsel wrote a March 22, 1988 letter to the court indicating that a secretary in the office of plaintiff's attorneys had checked with the Passaic County Motion Clerk's office the day before the motion day and been told that notwithstanding the request for oral argument, no oral argument was scheduled and there would be no need to appear. In a March 30, 1988 letter, the judge responded that it was not the province of the motions clerk to decide whether oral argument was necessary. In any event, it was indicated to the attorney that he would have to file a motion for reinstatement. The judge questioned plaintiff's attorney's reason for not appearing for oral argument as in conflict with what he knew were the procedures in his chambers.
A motion for reconsideration was filed supported by the affidavits of the attorney for plaintiff and his secretary. The submitted affidavit of the secretary amplified what was in the attorney's March 22 letter by stating that the motion clerk had referred her call to the judge's chambers. According to the secretary's affidavit an unnamed woman in the judge's chambers told her that there would be no oral argument. Counsel representing Clifton opposed the motion for reconsideration on the technical ground of failure to comply with the time limitations set forth in R. 4:49-2. There was no dispute concerning the affidavits that were submitted. At oral argument plaintiff's attorney, relying on R. 4:50-1, asserted that the earlier motion had been dismissed by mistake. The motion transcript indicates that the judge was not disposed to consider R. 4:50-1 when no brief had been filed. Effectively, the judge disbelieved the factual statements of the attorney and his secretary and made a credibility finding on what were at best disputed allegations without an evidentiary hearing.
The judge denied the motion after oral argument on May 13, 1988 for essentially two reasons: he considered the motion to have been filed beyond the ten day period provided by R. 4:49-2; and he did not believe that counsel for plaintiff did not show up for oral argument because some unnamed woman in either the motion clerk's office or the judge's chambers said that no oral argument was scheduled.
Subsequently, the parties received a photocopy of a form of order which had been submitted by plaintiff with the motion papers. The proposed order was drafted premised on the requested relief being granted so as to reinstate the earlier motion and allow the filing of the late notice of claim against Clifton. The form of order does not bear the signature of the judge. However, across the top of the order was stamped "original filed with the Superior Court Clerk's office." Written on the bottom of the proposed order, below the signature block area, is "5/13/88 Denied" and beneath that is rubberstamped "motion denied -- Judge" and the ...