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Feinberg v. State

Decided: June 10, 1993.

JOAN H. FEINBERG, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DELAWARE AND RARITAN CANAL COMMISSION, AND NEW JERSEY WATER SUPPLY AUTHORITY, DEFENDANTS-RESPONDENTS



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

Bilder, Baime and Wallace. The opinion of the court was delivered by Wallace, J.s.c. (temporarily assigned).

Wallace

[265 NJSuper Page 219] This is an appeal from a judgment in the Law Division dismissing plaintiff's complaint against the New Jersey Water Supply Authority (Authority) for failure to file a tort-claims notice with the Authority within the one-year limitation of the New Jersey Tort Claims Act (Act). N.J.S.A. 59:8-9. The issue is whether service of notice of claim upon the Attorney General satisfies the notice requirement under the Act for notice of a claim against a local public entity. We hold that it does not satisfy the notice requirement and affirm.

I

This case arises out of an overflow from the Delaware and Raritan Canal on March 29, 1989 that allegedly caused $100,000 in damages to plaintiff's building. Plaintiff contends that the rise of the water table on her property was the result of negligent maintenance of the adjoining Delaware and Raritan Canal which permitted water to leak into the surrounding ground water.

Plaintiff served tort claim notices upon the Attorney General, the New Jersey Department of Environmental Protection (DEP) and the Delaware and Raritan Canal Commission (Commission) within the ninety days required by law. N.J.S.A. 59:8-8. On July 19, 1989 the Attorney General, through the Department of Treasury, acknowledged receipt of the notice of claim and responded, that "the matter has been assigned for investigation and as soon as we have sufficient information, a representative of this office will contact you." The Attorney General never responded further concerning any investigation.

On March 9, 1990 plaintiff filed her complaint in the Law Division against the State, the DEP and the Commission. On July 31, 1990, the Attorney General filed an answer on behalf of all defendants.

Plaintiff propounded interrogatories upon defendants. After defendants failed to respond to the interrogatories, defendants' answer was dismissed on February 8, 1991. Plaintiff moved to dismiss the answers with prejudice under R. 4:23-5. Prior to the return date of the motion, defendants submitted answers to the interrogatories. In the introduction to the answers defendants noted that "the subject action relates solely to the exclusive authority and functions of the New Jersey Water Supply Authority which is a separate sue and be sued entity pursuant to N.J.S.A. 58:1b-3 et seq." Defendants made plaintiff aware of a lease agreement between the DEP and the Authority under which the Authority leased certain premises for a water supply system. On June 28, 1991, a consent order was entered granting plaintiff

leave to amend the complaint to name the Authority*fn1 as a separate defendant.

On July 10, 1991, plaintiff filed her amended complaint naming the Authority as a defendant. In its answer, the Authority raised as a defense plaintiff's failure to file a claim pursuant to N.J.S.A. 59:8-3. After the original defendants moved to have their answer reinstated, plaintiff filed a motion to strike the Authority's defense of failure to file a notice of claim. The Authority filed a cross-motion to dismiss plaintiff's complaint for failure to file a notice of claim pursuant to N.J.S.A. 59:8-3. After argument, the motion Judge on September 25, 1992 entered an order dismissing plaintiff's amended complaint against the Authority for failure to file a notice of claim pursuant to N.J.S.A. 59:8-3. Plaintiff's motion for reconsideration was denied, and we granted plaintiff's motion for leave to appeal.

II

Although couched in different ways, plaintiff essentially contends that a claimant may serve a tort-claims notice on a public entity by delivering it to the Attorney General. She contends that since she timely served the Attorney General, the motion Judge erred in dismissing the complaint against the Authority. The Authority contends it is a local public entity separate from the ...


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