On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Dreier, Kestin *fn1 and Cuff. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by DREIER, P.J.A.D.
Defendant appeals from an order permitting plaintiff to file a late notice of claim under the Tort Claims Act, N.J.S.A. 59:8-9. On August 24, 1994 plaintiff fell in the Meadowlands Sports Complex after stepping on a beer can in the men's room. The accident was noted in a Meadowlands Medical Department Emergency Treatment Report. Plaintiff contacted his present attorney the next day, and the attorney allegedly sent a handwritten form to defendant requesting a copy of the medical report. The message form was entitled "Re: Anthony Zois v. Arena." It notes the date of the accident to be "8/24/94" and states:
Dear Sir/Madam: Please be advised that I have been contacted to represent Anthony Zois for the above incident. Kindly send a copy of your report ETR47236.
The mailing of this request together with the fact that the Authority had possession of the medical report might be considered substantial compliance with the notice provisions of the Act. We note that the requested medical report incorporated the accident report, and when it was retrieved, defendant would have had before it sufficient information substantially to satisfy the notice requirements of N.J.S.A. 59:8-4, at least as known by plaintiff on the day following the accident. The attorney, however, was clear in his certification that he intended to file a formal notice of claim when he received a copy of the report.
The defendant does not dispute the attorney's certification that the request had actually been mailed. The problem in the case is that defendant contends, and it appears undisputed, that it never received this handwritten request from the attorney.
N.J.S.A. 59:8-10, as amended effective June 23, 1994, provides:
a. A claim shall be presented to the public entity by delivering it to or mailing it certified mail to the office of the Attorney General or the office of the State agency allegedly involved in the action. A claim may be presented to a local public entity by delivering it or mailing it certified mail to the entity.
b. A claim or application shall be deemed to have been presented in compliance with this section even though it is not delivered or mailed as provided in this section if it is actually received at an office of the State or local public entity within the time prescribed for presentation thereof.
c. Service of the notice required by this chapter upon the public entity shall constitute constructive service upon any employee of that entity.
Counsel's request, however, had been sent by ordinary, not certified mail, and therefore, even if there had been no denial of receipt, plaintiff would not be entitled to a presumption of receipt. Hammond v. City of Paterson, 145 N.J. Super. 452, 455, 368 A.2d 373 (App. Div. 1976) (indicating that where a statute requires notice by certified mail, mailing by ordinary mail does not warrant a presumption of receipt). Since the procedural dictates of the Act were not followed, plaintiff would be required to prove actual receipt of the request. Because plaintiff has failed to prove that the request had actually been received, we must assume that the request was a nullity insofar as it would satisfy the notice of claim requirements of the Tort Claims Act. This, therefore, is a late notice case, and is governed by the amended N.J.S.A. 59:8-9.
N.J.S.A. 59:8-9, as amended effective June 23, 1994, requires filing of a notice of claim within ninety days of its accrual. The section permits late notices, but as of June 23, 1994, such notices must meet a strict standard:
Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeing leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a ...