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Faustino v. Egg Harbor Township


February 19, 2008


The opinion of the court was delivered by: Simandle, District Judge


This matter is before the Court on the motion of Plaintiff Christine Faustino to file a late notice of tort claim [Docket Item 4]. For the reasons explained below, the Court shall grant the motion and permit this action to proceed.

1. In this action Plaintiff asserts, among other claims, constitutional and tort claims against Egg Harbor Township, a public entity, and Officer DeAngelis, a public employee.*fn1 The New Jersey Tort Claims Act (the "Tort Claims Act") states that "[n]o action shall be brought against a public entity or public employee under [the Tort Claims Act] unless the claim upon which it is based shall have been presented in accordance with the procedures set forth in this Chapter." N. J. Stat. Ann. 59:8-3. Specifically, under the Act, a claimant must sign and file a notice of tort claim (a "Notice of Claim") with the public entity within 90 days from accrual of the cause of action. Id. at 59:8-8.*fn2 After the Notice of Claim is filed, a plaintiff must wait six months before filing suit against the public entity or employee in an appropriate court. Id.

2. N.J. Stat Ann 59:8-9 establishes an exception to the requirement that a claimant file a Notice of Claim within ninety days from the date of accrual of a claim.*fn3 Under Section 59:8- 9, upon a motion from the claimant supported by affidavits, the district court has discretion to allow late filing of a Notice of Claim if made within one year of the claim accrual date provided that (1) the claimant seeking to file a late claim shows reasons constituting "extraordinary circumstances" for the claimant's failure to meet the 90-day filing requirement and (2) that the defendant(s) are not "substantially prejudiced thereby."*fn4 N. J. Stat. Ann. 59:8-9. The existence of "extraordinary circumstances" is to be determined by the courts on a case-by-case basis. Rolax v. Whitman, 175 F. Supp. 2d 720, 730-31 (2001), aff'd, 53 F. App'x. 635 (3d Cir. 2002); S.P. v. Collier High Sch., 319 N.J. Super. 452, 465 (App. Div. 1999).

3. Further, as Egg Harbor concedes, the discovery rule applies under the Tort Claims Act when the victim is either unaware of the injury or does not know that a particular party is responsible for it. (Def. Br. at 8) (citing Villalobos v. Fava, 342 N.J. Super. 38, 46 (App. Div.) certif. denied 170 N.J. 210 (2001)). Both Egg Harbor and Plaintiff acknowledge that Plaintiff was unaware, at the time of her alleged injury, that Egg Harbor had injured her. They dispute when she became aware of Egg Harbor's role in the underlying injury.*fn5

4. Plaintiff alleges that an individual police officer, Defendant DeAngelis, who was in the employ of Egg Harbor Township at the time, conspired with Plaintiff's neighbor to release nonpublic information about her in order to cast Plaintiff in a bad light. DeAngelis allegedly accessed this confidential information on December 29, 2006. Plaintiff's neighbor publicized the information sometime in January or February 2007.

5. Egg Harbor claims that Plaintiff became aware that she potentially had a claim against it on February 6, 2007, at the latest, when she met with individuals at the Egg Harbor Police Department who told her that they believed a high ranking Egg Harbor police officer had released the information.

6. Plaintiff claims that although she and her husband met with Egg Harbor police in February 2007, the police did not specify how the information was released and noted only that there was an investigation. Plaintiff also alleges that the police insisted they needed Plaintiff's assistance and that therefore she believed bringing a lawsuit at that time would compromise Egg Harbor's investigation.

7. Plaintiff claims that she learned the investigation had terminated and that Defendant DeAngelis had been arrested when a news article reporting those events was published on April 28, 2007. (Pl.'s Ex. A.)

8. Plaintiff filed her notice of tort claim on May 25, 2007.

9. According to Egg Harbor, Plaintiff filed her claim 108 days after she discovered her claim, that is, eighteen days late. Egg Harbor claims that Plaintiff's desire not to interfere with its ongoing investigation does not constitute extraordinary circumstances.

10. This Court disagrees with Egg Harbor. Assuming that Plaintiff became aware that Egg Harbor was potentially liable for her claims in this case on February 6, 2007, as Egg Harbor alleges, her decision not to initiate her own civil litigation until the investigation ended should be excused. It is extraordinary for an individual to have both a claim against a law enforcement agency and an interest in assuring the efficiency and privacy of that agency's investigation of its own officers. In such situations, the New Jersey courts would likely encourage citizen cooperation with law enforcement authorities and not punish such cooperation by depriving tort victims of their proper claims.

11. There is no claim that Egg Harbor would be substantially prejudiced by permitting the late notice, and this Court specifically finds that it would not be. Egg Harbor Township was aware, earlier than Plaintiff was, of the potential claim against it. Because of the related internal affairs investigation, there is no claim that any evidence was lost that would have been preserved had Plaintiff filed the notice of tort claim within the ninety-day time limit, that is, eighteen days earlier than she did. Therefore, there is no prejudice to Egg Harbor and certainly no substantial prejudice.

12. Of course, if Plaintiff's claim accrued in April 2007, as she alleges, then her notice of tort claim would be timely and no excuse would be required.

13. In either case, the Court shall grant Plaintiff's motion to excuse her late notice of tort claim. An appropriate Order shall be entered.

Jerome B. Simandle U.S. District Judge

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