On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6364-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and A. A. Rodríguez.
Plaintiff, administratrix of the estate of Janie Reed, appeals from a final judgment resulting from orders entered on October 7, 2005, dismissing plaintiff's complaint against the Roosevelt Care Center ("Roosevelt"), and June 16, 2006 dismissing the complaint against the JFK Medical Center ("JFK"). The complaint against Roosevelt was dismissed for failure to file a timely notice of claim pursuant to N.J.S.A. 59:8-8 of the New Jersey Tort Claims Act ("TCA"), and the complaint against JFK was dismissed for failure to comply with the statute of limitations.
On this appeal plaintiff challenges the dismissal as to Roosevelt under the TCA on the grounds that the notice could be extended beyond the year because she "had no knowledge of the public entity status of Roosevelt Care Center" and "Roosevelt Care Center has suffered no undue prejudice as a result of the delay in filing a notice of claim." With respect to JFK, plaintiff argues that "the statute of limitations was not offended by the late filing of an amended complaint because the facts of this case satisfy the two prong test set forth in R. 4:9-3," "dealing with relation back," and defendant was given sufficient notice and suffered no prejudice.
This is a malpractice case arising out of an accident that occurred while plaintiff's decedent was a patient at Roosevelt. Plaintiff's decedent was taken to JFK after the accident. A complaint was filed against Roosevelt, the Middlesex County Improvement Authority, which operated Roosevelt, and the John F. Kennedy Medical Foundation in August 2004.*fn1 A "Notice of Tort Claim," dated August 26, 2004, accompanied the complaint. A prior order in favor of plaintiffs permitting the late filing was vacated after Roosevelt obtained counsel. The trial court denied a late filing, and the complaint against Roosevelt was dismissed for failure to serve a timely notice. The JFK Foundation was dismissed on summary judgment, but the order of May 13, 2005 permitted plaintiff to file an amended complaint against JFK as a direct defendant.
The accident occurred on or around July 20, 2002, as a result of which decedent was transferred from Roosevelt to JFK. After surgery she remained at JFK for fifty-two days but ultimately died two days after her return to Roosevelt, on September 13, 2002. The trigger for purposes of both the TCA and statute of limitations could be no later than the death.
The administratrix was not appointed until February 2004. She retained counsel approximately five months later, and claims to have learned only thereafter that Roosevelt was owned and operated by the Middlesex Improvement Authority, a public entity.
The trial judge dismissed the complaint against J.F.K., stating that
I don't think that the Court has any alternative but to -- to grant the motion as to the statute of limitations argument in reference to this matter. The affidavit of merit is of no moment as a result of that.
So, therefore, I'm going to grant the motion because of non-compliance to the statute of limitations in this matter.
We have scoured the motion papers, and the argument of counsel on the motion, and find no reference in the moving papers or at argument to an application ...