December 13, 2007
FRANCES NIEVES, PLAINTIFF-APPELLANT,
NEWARK HOUSING AUTHORITY, DEFENDANT-RESPONDENT, AND CONVENT COURT DEVELOPMENT GROUP, INC., DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket Number L-10294-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2007
Before Judges Fuentes and Grall.
Plaintiff Frances Nieves appeals from the order of the Law Division dismissing her personal injury cause of action against defendant the Newark Housing Authority. The court ruled that plaintiff's failure to serve defendant the notice required under N.J.S.A. 59:8-8 within one year of the accrual of the action, deprived it of jurisdiction to hear the case. We agree and affirm.
The salient facts are not disputed. Plaintiff is an eighty-five-year-old woman who slipped and fell on defendant's property on December 31, 2003. English is not plaintiff's primary language. She retained counsel shortly after the accident. Sometime thereafter, plaintiff decided to switch attorneys, and retained the law firm of record in this appeal.
According to counsel's certification, plaintiff's file was misplaced, and was not found until 2005. After reviewing the file, counsel noticed that a Tort Claims Notice (TCA) had not been served on defendant as required by N.J.S.A. 59:8-8. A TCA notice was finally served on defendant on July 5, 2005, more than 18 months after the accrual of the action.
Plaintiff argues that the facts outlined present sufficient grounds to warrant reversal of the trial court's decision. We disagree.
A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. 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 seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.
[N.J.S.A. 59:8-9 (emphasis added.)]
"After the one-year limitation has passed, 'the court is without authority to relieve a plaintiff from his failure to have filed a notice of claim, and a consequent action at law must fail.'" Pilonero v. Township of Old Bridge, 236 N.J. Super. 529, 533 (App. Div. 1989) (quoting Speer v. Armstrong, 168 N.J. Super. 251, 255-56 (App. Div. 1979).
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