July 16, 2008
ALTORIE WHEELER, PLAINTIFF-APPELLANT,
CITY OF JERSEY CITY, CITY OF JERSEY CITY POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3472-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 1, 2008
Before Judges Skillman and Winkelstein.
Plaintiff, Altorie Wheeler, appeals from a September 7, 2007 order denying his motion to file a late notice of tort claim. We affirm.
On September 13, 2006, at approximately 10:00 p.m., two Jersey City police officers initiated a motor vehicle stop along Tonnelle Avenue in Jersey City. According to the police investigation report, the driver of the vehicle, plaintiff, rammed the police car with his vehicle. The officers fired their guns at plaintiff, striking him, and plaintiff was taken to the Jersey City Medical Center where he was treated for multiple gunshot wounds and a broken finger. He was discharged the following day and transported to the Hudson County Correctional Facility. He was charged with attempted murder, assault by auto, and assault. According to plaintiff's reply brief, on January 22, 2008, he pleaded guilty to fourth-degree resisting arrest and the remaining charges were dismissed.
While in the Hudson County Correctional Facility, plaintiff told his criminal attorney that he wanted to sue the City civilly for his injuries. Plaintiff has certified that he was informed by that attorney that "he would file the Notice of Claim on [plaintiff's] behalf." He did not do so, and in May 2007, plaintiff retained other counsel.
On July 11, 2007, plaintiff filed his motion to file a late notice of claim. On September 7, 2007, the court ruled that plaintiff failed to establish extraordinary circumstances to justify the late notice of claim. The court reasoned that although plaintiff had been shot, he was treated and released from the hospital the following day, and had failed to establish extraordinary circumstances to justify an extension of the time frame within which to file a notice of claim.
A notice of claim must be filed with the public entity within ninety days of the accrual of the claim, subject to certain exceptions. N.J.S.A. 59:8-8. The court may permit a late filing of that notice within one year after the accrual of the plaintiff's claim, provided that the public entity has "not been substantially prejudiced," and that the application for permission to file a late notice of claim is 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." N.J.S.A. 59:8-9.
The decision whether to grant or deny permission to file late notice of claim is within the sound discretion of the trial court, which should be sustained on appeal in the absence of a showing of an abuse of that discretion. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988). Here, we assume for purposes of this opinion that the municipality was not prejudiced by the late filing and therefore limit our discussion to whether plaintiff established extraordinary circumstances.
Prior to 1994, N.J.S.A. 59:8-9 permitted the court to allow a late notice of claim beyond the ninety-day period upon a showing of "sufficient reasons" so long as the public entity was not substantially prejudiced. Blank v. City of Elizabeth, 318 N.J. Super. 106, 110 (App. Div.), aff'd as modified, 162 N.J. 150 (1999). The 1994 amendment to N.J.S.A. 59:8-9 raised "the sufficient-reason threshold." Ibid. The purpose of the amendment was "the abrogation of the liberal judicial construction of 'sufficient reasons' standing alone." Ibid.; see also Lowe v. Zarghami, 158 N.J. 606, 626 (1999).
Applying these standards, the record fully supports the trial court's decision that plaintiff has not demonstrated extraordinary circumstances. Plaintiff has simply stated that the attorney he hired to pursue the claim on his behalf neglected to timely file the tort claims notice. Under the 1994 amendment, that does not constitute extraordinary circumstances. Zois v. N.J. Sports & Exposition Auth., 286 N.J. Super. 670, 674 (App. Div. 1996) (attorney's failure to timely file notice of claim because his secretary misplaced the file does not constitute extraordinary circumstance under the 1994 amendment). The purpose of adding extraordinary circumstances to the statute in 1994 was to "raise the bar for the filing of late notice from a 'fairly permissive standard' to a 'more demanding' one." Beauchamp v. Amedio, 164 N.J. 111, 118 (2000) (quoting Lowe, supra, 158 N.J. at 625). Attorney neglect does not meet that more demanding standard.
Plaintiff claims we should be guided by our decision in Williams v. Maccarelli, 266 N.J. Super. 676 (App. Div. 1993), where a prisoner in the county jail was permitted to file a notice of claim late because his attorney failed to supervise the law students who were processing the plaintiff's claim. Williams is inapplicable here, however, in that it was decided under the less permissive "sufficient reasons" standard that existed prior to 1994. Id. at 678. The same holds true with plaintiff's reliance on Abel v. City of Atlantic City, 228 N.J. Super. 360 (App. Div. 1988), certif. denied, 114 N.J. 477 (1989), where we reversed an order denying the plaintiff's application to file a late notice of claim, observing, among other things, that the sole cause of the plaintiff's difficulty was that her New Jersey attorney misinterpreted the file and entered the wrong date on the notice of claim form. Id. at 369. Abel also was decided prior to the 1994 amendment, id. at 361-62, and we therefore no longer consider it to be instructive given the intent of those amendment. If, indeed, attorney neglect did constitute "sufficient reasons" prior to the 1994 amendment, it does not constitute extraordinary circumstances under the new statutory criteria.
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