On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2401-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and Lyons.
Plaintiff, Mark Wagenhoffer, appeals from an order denying his motion to file a late notice of claim pursuant to N.J.S.A. 59:8-9 and an order entered denying his motion for reconsideration. We affirm.
The following factual and procedural history is relevant to the issues advanced on appeal. Plaintiff did not appear for a court date on a criminal indictment. The bail bond company that had posted his bail, therefore, hired bounty hunters at a cost of $1000 to find him and bring him to court. The bounty hunters arrested plaintiff on June 9, 2005, when he was in municipal court in Paterson for unrelated traffic matters. On August 29, 2005, plaintiff was scheduled to attend a status conference regarding the underlying criminal matter for which the bail bond had been posted. At that time, the attorney for the bail bond company filed a motion objecting to his bail being reinstated. The Law Division judge then ordered plaintiff to pay the bail bond company the $1000 it paid for the bounty hunters before the bond would be reinstated. Plaintiff contends that he should not have been ordered to pay the $1000 because he had notified the court that his address had changed and the court sent the notice to appear to an old address. Plaintiff further asserts that his public defender at the status conference represented that he would look into what could be done to recoup the $1000 but that the plaintiff did not hear from the public defender, nor did the public defender return any of plaintiff's calls regarding this topic.
Plaintiff was arrested on October 8, 2005, and held at the Morris County jail, apparently on other charges. Plaintiff alleges that, while incarcerated at the Morris County jail, he asked a paralegal there to help him with his claim concerning the $1000 but that she refused. Plaintiff was then released on November 5, 2005, from the Morris County jail and states that he was then homeless as a result of his incarceration. Plaintiff was arrested again thirty-eight days later on December 13, 2005, and held at the Passaic County jail. He asserts that during periods of his incarceration, he did not receive any assistance from prison or jail administrations in pursuing his claim concerning the $1000.
Plaintiff filed a notice of motion seeking leave to file a late notice of tort claim dated May 12, 2006. Plaintiff argued in his affidavit in support of that motion that he could not file his notice within the ninety-day time limit required by the Tort Claims Act because he was incarcerated and that he had been relying upon his public defender to advise him as to how to proceed. He also pointed out that following his release from his incarceration on November 5, 2005, he was homeless and he had received no telephone call back from the public defender.
He also argues that since August 29, 2005, the occurrence date, he had been incarcerated in three different county jails and had requested assistance but had been denied his "constitutional right to the assistance of filing meaningful papers with the court." By order dated June 23, 2006, plaintiff's motion seeking leave to file the tort claim was denied. The trial court noted that plaintiff failed to show extraordinary circumstances.
Plaintiff then filed a motion for reconsideration which was heard on August 11, 2006. In plaintiff's motion, he argued that the court overlooked "the fact that I was denied my constitutional right to access to the courts and with assistance in preparing & filing of meaningful legal papers that all persons incarcerated have." Following oral argument, by way of a video teleconference, the trial judge denied the motion for reconsideration. By way of a letter dated January 26, 2007, the trial court stated that the motion for reconsideration was denied because plaintiff's argument that his constitutional rights were denied was considered by the trial court when it originally passed on his application. Further, the judge stated that plaintiff did not supply the court with sufficient reasons as to why the trial court had allegedly erred pursuant to Rule 4:49-2. This appeal ensued.
On appeal, plaintiff argues that he appropriately filed his motion seeking leave to file a late tort claim in accordance with N.J.S.A. 59:8-9 and that he has shown that he did not procrastinate, nor was he ambivalent, that there were extraordinary circumstances, and that his constitutional right of access to the court had been denied during the ninety-day time limit imposed by N.J.S.A. 59:8-8. Plaintiff further argues that the State has not shown that it would be prejudiced by the late filing and that any doubts with respect to permission to file should be in favor of the claimant and that the court erred in permitting the State to file an untimely opposing brief.
We begin our consideration of these arguments by restating applicable legal principles. N.J.S.A. 59:8-8 requires a claim pursuant to the Tort Claims Act to be presented "not later than the ninetieth day after accrual of the cause of action."
N.J.S.A. 59:8-9 provides that a claimant who fails to file notice of a claim within ninety days after the accrual of the cause of action may, in the discretion of the court, "be permitted to file such notice at any time within one year after the accrual of his [or her] claim, provided that the public entity or public employee has not been substantially prejudiced thereby." Such an application to the court must demonstrate "sufficient reasons constituting extraordinary circumstances for [the claimant's] failure to file notice of claim" within the ninety days prescribed by N.J.S.A. 59:8-8. N.J.S.A. 59:8-9. The Supreme Court has recently outlined the history of this section:
Until 1994, the Tort Claims Act applied a fairly permissive standard when claimants sought to file notices of late claims. Claimants had to demonstrate only "sufficient reasons" for the delay, and that the State would not be prejudiced as a result. N.J.S.A. 59:8-9 (Comment). The Legislature enacted a more demanding standard when the TCA was amended in 1994 to require that the "sufficient reasons" for late ...