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Feinberg v. State Dept. of Environmental Protection

Decided: August 3, 1994.


On certification to Superior Court, Appellate Division, whose opinion is reported at 265 N.J. Super. 218 (1993).

Pollock, Clifford, Handler, O'Hern, Garibaldi, Stein


The opinion of the Court was delivered by


This is an appeal from the Appellate Division's affirmance of the Law Division's dismissal of the complaint of plaintiff, Joan H. Feinberg (plaintiff or Feinberg), against the New Jersey Water Supply Authority (NJWSA or the Authority) for failure to file a timely tort claim notice with the Authority as required by N.J.S.A. 59:8-3 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 14-4 (the Act). The issue is whether service of a notice of claim on the Attorney General and the Department of Environmental Protection and Energy (DEPE), formerly known as the Department of Environmental Protection, satisfies the Act's requirement for service on a local public entity. The Appellate Division held that the service did not satisfy that requirement. 265 N.J. Super. 218. We granted Feinberg's petition for certification, 134 N.J. 564

(1993), and now reverse and remand to the Law Division.


The matter arises on the grant of the Authority's motion to dismiss. Therefore, we assume as true all facts alleged by Feinberg and give her the benefit of all inferences that may be drawn from those facts. Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76, 79, 622 A.2d 1295 (1993). According to Feinberg, on March 29, 1989, while she was building a drug store on her property in Trenton, groundwater overflowed the Delaware and Raritan Canal (the Canal) and caused approximately $100,000 in damages to the property. She alleges that all defendants were "negligent in the operation, maintenance, repair, construction, and/or design of the Delaware and Raritan Canal . . .," and that the Canal "constitutes a continuing private nuisance injurious to the plaintiff."

On June 23, 1989, within the ninety days required by N.J.S.A. 59:8-8, plaintiff's counsel served tort-claim notices on the State through the Attorney General's Office, the DEPE, and the Delaware & Raritan Canal Commission (the Commission). Four days later, her counsel served supplemental notices on prescribed forms on these defendants and on the State Treasurer, who processes tort claims for the State.

The State, DEPE, and the Commission share responsibility for the Delaware and Raritan Canal. The State took possession of the Canal from the Pennsylvania Railroad Company in 1934. 1993 NJWSA Ann. Rep. 4; see N.J.S.A. l3:13A-1 (providing "the state of New Jersey shall forthwith take possession of the Delaware and Raritan canal"). N.J.S.A. 13:13-2 empowers and directs the DEPE "to enter upon and take possession of the canal . . . for and on behalf of the state of New Jersey." Additionally, N.J.S.A. 13:13A-1 to -15 vests the Commission with the power to "preserve, maintain, [and] improve" the Canal in its capacity as a State park. N.J.S.A. 13:13A-2b. Unknown to plaintiff, on June 18,

1986, the DEPE had leased to the Authority the Delaware and Raritan Canal Transmission Complex for use as a water-supply facility.

On July 19, 1989, the Attorney General, through the Treasury Department's Bureau of Risk Management, 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." No one told Feinberg of the Authority's involvement.

On March 9, 1990, Feinberg filed her complaint against the State, the DEPE, and the Commission. None of the defendants filed a timely answer. On May 30, 1990, the court entered defaults against each of them. Thereafter, the court vacated the defaults, and on July 31, 1990, the Attorney General filed an answer for all defendants. The answer asserted a separate defense that "the accident was caused by the negligence of persons and entities over whom the defendants had no control." It did not mention the Authority by name.

Feinberg promptly propounded interrogatories, which requested the Attorney General to

identify the entity or person who:

(b) Operates and/or maintains the D & R Canal, and/or has been responsible for the operation and/or maintenance of the D & R Canal, from January 1, 1980 to the present date;

(c) Owns and/or leases, or otherwise has a property interest in, the D & R Canal (from January 1, 1980 to the present date) . . . .

Defendants failed to answer the interrogatories. On February 8, 1991, the Law Division entered an order striking their answers to the complaint. Feinberg then moved under Rule 4:23-5 to dismiss the answers with prejudice. Defendants finally submitted the answers to the ...

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