On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9944-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2007
Before Judges Fuentes and Grall.
Plaintiff Jean Collins appeals from an order entered by the Law Division dismissing her complaint with prejudice for failure to file a timely notice of claim as required by the Tort Claims Act (TCA), N.J.S.A. 59:8-8. Plaintiff argues that there are sufficient circumstances to explain or otherwise justify her failure to file a notice of claim within ninety days of her incident, and that Edison Housing Authority (EHA) was under constructive notice of her claim when she filed a late notice of claim with Edison Township.
The trial court found that the EHA was not served with a TCA notice of claim within the statutory period, and that plaintiff's filing of the notice of claim on Edison Township did not place the EHA on constructive notice of her claim. We agree and affirm.
These are the salient facts. On June 29, 2005, plaintiff Jean Collins slipped and fell on a drainage pipe near the sidewalk of her residence, located at 5K Willard Dunham Drive, Edison, New Jersey. The EHA owns that property. Soon after the incident, plaintiff met with an attorney and was eventually referred to her current counsel in November 2005. On December 19, 2005, plaintiff's counsel mailed a TCA notice of claim to the administrator of Edison Township.
On July 10, 2006, QualCare, Inc., the third party administrator for Edison Township, contacted plaintiff's counsel, stating that the accident was subject to the TCA, that a notice of claim must be filed within ninety days of the incident, and that an order from the Superior Court allowing for a late filing could only be granted within one year of the incident. Enclosed with the letter was a form, entitled "Claim Form," to be completed by plaintiff and forwarded to QualCare. Plaintiff completed the claim form on September 11, 2006.
On September 22, 2006, QualCare denied plaintiff's claim for damages due to the failure to file the notice of claim within ninety days of the incident. On October 26, 2006, plaintiff's counsel wrote QualCare advising it that even though the notice of claim was filed after the ninety-day requirement, he believed there were circumstances which permitted the case to go forward. It was thus his intention to file suit against Edison Township within the timeframe provided in the relevant statute of limitations.
On December 11, 2006, plaintiff filed a complaint against EHA "as a division of Edison Township," alleging that EHA's failure to maintain its premises was the direct and proximate cause of the injuries sustained by plaintiff. On January 24, 2007, EHA moved before the Law Division to dismiss plaintiff's complaint with prejudice for failure to file a timely TCA notice of claim. An accompanying certification by Madeline Cook, the executive director for EHA, stated that: (1) EHA is independent and separate from Edison Township; (2) the Township is not EHA's registered agent; (3) the Township is not authorized to accept service on EHA's behalf; and (4) EHA was never served with a notice of claim for this matter.
In response to EHA's motion to dismiss, plaintiff's counsel acknowledged that the ninety-day deadline to file the notice of claim was September 27, 2005. Counsel also advised the court that his firm had not been involved in the law suit until November 2005; and that plaintiff, an elderly woman, was not personally aware of the TCA's requirements. Finally, counsel asserted that his initial investigation had revealed that EHA was a division of Edison Township.
In response, the EHA emphasized that, despite these allegations: (1) plaintiff never sought leave from the court to file a late notice of claim; (2) a simple inquiry to the municipal tax assessor would have revealed that the EHA owns the property; and (3) as a longtime tenant of the EHA, plaintiff should have been aware of EHA's status as a separate entity, independent from the Township.
Given the record developed by the parties, Judge Happas viewed EHA's application to dismiss as a motion for summary judgment. In this context, Judge Happas held that EHA had not been served with a notice of claim within the statutory period. The court also found that EHA was not a subordinate branch of Edison Township. The court thus held that plaintiff's filing of the notice of claim on Edison Township was legally insufficient to satisfy the notice requirements of the TCA.
We review the grant of summary judgment using the same standards used by the trial court. Kramer v. Ciba-Geigy Corp., 371 N.J. Super. 580, 602 (App. Div. 2004). Summary judgment is warranted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged ...