On appeal from the Superior Court of New Jersey, Law Division, Union County.
Gaulkin, Stern and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
[266 NJSuper Page 677] Plaintiff Thermon Williams appeals from an order of the Law Division which denied his application to file a late notice of claim pursuant to N.J.S.A. 59:8-9 against Union County and the State of
New Jersey. For the following reasons, we conclude that the application should have been granted.
On September 2, 1991, while plaintiff Thermon Williams was a prisoner in the Federal Detention Annex of the Union County Jail, medical personnel at the jail gave him penicillin for a tooth infection. He suffered a severe allergic reaction and was hospitalized as a result. He alleges that administering penicillin to him was negligent because his medical records in the possession of the medical personnel at the jail clearly disclosed his allergy to penicillin.
A notice of claim against a public entity should be filed within ninety days of the accrual of the cause of action. N.J.S.A. 59:8-8. Because the allegedly negligent administration of penicillin to plaintiff and his allergic reaction occurred on September 2, 1991, his notice of claim should have been filed with the State and the County no later than December 1, 1991. He did not file his notice by that date. Instead, on December 4, 1991, three days after the deadline, he filed a notice of motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9.
N.J.S.A. 59:8-9 provides that an "[a]pplication to the court for permission to file a late notice of claim shall be made upon motion based upon affidavits showing sufficient reasons for [the claimant's] failure to file notice of claim within the period of time prescribed by § 59:8-8 of this Act . . . ." Plaintiff's application was denied without prejudice by the motion Judge to whom it was presented because plaintiff did not state "sufficient reasons for the failure to file timely notices of claim . . . ."
Plaintiff then filed a second notice of motion, alleging in substance that the notices of claim had not been filed within time because the law clerks to whom the task of preparing them had been assigned were negligent. This second motion was heard by a different Judge and was also denied.
In an oral opinion, the second motion Judge stated that "inadequacy of counsel is not a sufficient reason," citing Iaconianni v.
In the case at bar, plaintiff has been represented by [his counsel] since his incarceration . . . . [Counsel] was aware of his client's mishap soon after it occurred. However, he neglectfully failed to supervise several law students employed by him. Plaintiff's counsel was fully aware of the statutory limitation of ninety days. Yet, he assigned the task of preparing the notice, albeit, a task ...