On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4382-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Alvarez.
Defendant, City of Newark Housing Authority (the Housing Authority), appeals from a July 6, 2007 Law Division order, which granted plaintiff, Carolyn Reese, leave to file a late Notice of Tort Claim pursuant to N.J.S.A. 59:8-9, against the City of Newark, the State of New Jersey, and the Housing Authority.*fn1 For the following reasons, we affirm.
Plaintiff, the Housing Authority's employee since 1985, alleges that when she was summarily fired on July 26, 2006,*fn2 the only reason given was that she was part of the "old team." Plaintiff is sixty-two. Immediately thereafter, she hired an attorney to pursue wrongful termination claims on her behalf under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and for breach of contract. Because of a conflict of interest, the first attorney withdrew from the case after attempting to settle the dispute. As a result, plaintiff in the spring of 2007 retained her current lawyers. That office on June 6, 2007, in anticipation of litigating the matter on plaintiff's behalf, filed a notice of motion for leave to serve a late Notice of Tort Claim beyond the ninety-day Tort Claims Act (TCA) time frame, N.J.S.A. 59:8-9.
On appeal, the Housing Authority contends that if notice under the TCA is required, the first attorney's inaction does not constitute "extraordinary circumstances" such as would exempt plaintiff from the time bar. The statute reads
A claimant who fails to file notice of his claim within 90 days . . . 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 . . . . [N.J.S.A. 59:8-9.]
The motion was served upon the Housing Authority, the City of Newark, and the State of New Jersey, all of whom appeared in opposition. In his oral decision, the motion judge principally relied upon the holding in Beauchamp v. Amedio, 164 N.J. 111 (2000). It stands for the proposition that when there is "general confusion among lawyers and judges relative" to the applicability of the TCA's notice requirements, the confusion constitutes "extraordinary circumstances" which allows for the filing of a late notice of claim. Id. at 123.
The decision to grant plaintiff permission to file a late notice of a tort claim is an exercise in "'the sound discretion of the trial court.'" R.L. v. State-Operated Sch. Dist. of Newark, 387 N.J. Super. 331, 340 (App. Div. 2006) (quoting Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 403 (App. Div. 1996), overruled on other grounds by Beauchamp, supra, 164 N.J. at 120). In order for the discretion to be properly exercised, the claimant's affidavit must establish that extraordinary circumstances caused the delay, and that no substantial prejudice would inure to the public entity from the late filing. Ibid.
Here, the motion judge said:
[r]elying upon Beauchamp primarily, I am going to allow the plaintiff to file a late tort notice on the wrongful termination claim. I'm just gonna not characterize it as to whether it's tort or contract. It's a wrongful termination claim, that's what we're talking about on the public entity defendants, and just they can serve it.
The judge found "general confusion" about the requirement because at this early stage in the proceedings, no determination could be made as to whether the breach of contract claims, as distinct from the LAD claims, constituted tort or contract claims. It could not even be determined, in his view, whether any governmental entity separate from the Housing Authority would ultimately be a party defendant.
The first attorney did not file a notice because he did not think he was required to do so; the second attorney disagrees. It is not clear at this juncture whether this claim may ultimately be covered by the TCA, but that issue cannot be determined absent the more precise formulation of the causes of action resulting from investigation and discovery. No prejudice inured to the Housing Authority as they were put on notice when the first attorney actually attempted to settle the matter. In any event, to have allowed late filing where the ...