July 22, 2008
JAMES HOWE, PLAINTIFF-APPELLANT,
NEW JERSEY TRANSIT CORP., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2331-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 8, 2008
Before Judges Parker and Gilroy.
Plaintiff James Howe appeals from the May 11, 2007 order, which granted summary judgment to defendant New Jersey Transit Corporation (NJT) due to plaintiff's failure to file a timely notice of tort claim pursuant to the New Jersey Tort Claims Act (Act).*fn1 Plaintiff also appeals from the order of June 8, 2007, which denied his motion for reconsideration. We affirm.
On June 30, 2004, plaintiff was injured in an accident involving a bus operated by NJT. NJT is a public entity as defined in N.J.S.A. 59:1-3. Because plaintiff intended to file a claim for damages against NJT, he was required to file a tort claim notice within ninety days after the date of the accident. N.J.S.A. 59:8-8. However, plaintiff did not file his notice of tort claim within the allotted time.
On April 21, 2005, plaintiff filed a motion seeking leave to file a late notice of tort claim within one year of the date of the accident, pursuant to N.J.S.A. 59:8-9. On May 13, 2005, an order was entered granting plaintiff's motion and directing plaintiff to file his notice of claim against NJT "within 20 days of the date hereof." On May 5, 2006, plaintiff filed his complaint for personal injury. In April 2007, NJT filed a motion for summary judgment, seeking dismissal of the complaint due to plaintiff's failure to file a timely notice of tort claim, as required by the order of May 13, 2005. NJT's motion was supported by certification of one of its Unit Claims Managers, stating that as part of his duties he has access of all notices of tort claims filed with NJT; that NJT has adopted its own notice of claim form; and although NJT did receive a letter from plaintiff's counsel dated September 29, 2005, advising that his office represented plaintiff for injuries sustained in an automobile accident on June 30, 2004, when plaintiff was struck by a bus owned and/or operated by NJT, and requesting copies of all police/incident reports in NJT's possession, a search of NJT's records failed to disclose that it had received a "notice of claim form, specifically the statutorily authorized New Jersey Transit claim Form submitted by or on behalf of plaintiff . . . with regard to a June 30, 2004, incident."
In opposition to the summary judgment motion, plaintiff's counsel argued that he had timely presented a notice of tort claim on April 21, 2005, and that his office never received a supplemental claim form from NJT requesting that it be completed and returned. In support of his argument, counsel attached to his opposition brief a copy of an unsigned notice of claim form dated April 21, 2005, together with a copy of a certified mail receipt signed by an employee of NJT on the following day. However, the opposition papers did not include a certification evidencing that the certified mail receipt related to the notice of claim that counsel asserted was served on NJT on April 22, 2005. Because the copy of the notice of tort claim submitted by plaintiff was unsigned, and there was an absence of a certification establishing that plaintiff's counsel had served a signed copy of a notice of claim on NJT, and that the certified mail receipt related thereto, the trial court granted the motion.
On May 15, 2007, plaintiff moved for reconsideration, relying again on a copy of the same unsigned notice of claim submitted in opposition to the motion for summary judgment. Plaintiff submitted a certification from counsel stating that:
1) counsel had signed the notice of tort claim before it was sent to NJT on April 21, 2006; and 2) NJT "never sent [his] office a supplemental claim form to be filled out by the plaintiff and never requested that [his] office respond to a supplemental claim form." Determining that plaintiff had neither presented any new information, nor identified any principles of law that the court had overlooked on the motion for summary judgment, the trial court denied the motion. A confirming order was entered on June 8, 2007.*fn2
On appeal, plaintiff argues that the trial judge erred in granting summary judgment and denying his motion for reconsideration because he had presented evidence in opposition to the motion for summary judgment and on his motion for reconsideration, demonstrating that he had complied with the Act's notice requirements.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2008). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Motions for reconsideration are governed by Rule 4:49-2. Reconsideration is a matter to be exercised in the trial court's sound discretion. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988). "A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the [c]court." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). "Reconsideration should be utilized only for those cases [that] fall [within] that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid.
Moreover, a party cannot use the reconsideration process to do what should have been done in the original proceeding. Reconsideration is only to point out "the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2. Reconsideration cannot be used to expand the record and reargue the trial. A motion for reconsideration is designed to seek review of an order based on the evidence before the court on the initial matter. R. 1:7-4. A motion for reconsideration is not the procedure for the introduction of new evidence to cure an inadequacy in the trial record. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). It is against these principles that we considered plaintiff's arguments.
The notice of claim must, at a minimum, contain the information required pursuant to N.J.S.A. 59:8-4; must be in writing, Anske v. Bor. of Palisades Park, 139 N.J. Super. 342, 348 (App. Div. 1976), and may be signed by either the claimant or his or her attorney; or, by another person lawfully acting on claimant's behalf. N.J.S.A. 59:8-4; In re Roy, 142 N.J. Super. 594 (App. Div.), certif. denied, 71 N.J. 504 (1976). Oral notice of the claim will not suffice. Anske, supra, 139 N.J. Super. at 348. In addition, a public entity may adopt by rule or regulation its own claim form, "specifying information to be contained in claims filed against it or its employee[s]," provided that the form contains at a minimum the information stated in N.J.S.A. 59:8-4. N.J.S.A. 59:8-6.
Plaintiff argues that the trial judge erred in granting summary judgment, contending that he had satisfied all of the elements necessary under the notice provisions of the Act, asserting he had properly presented his notice of claim to NJT when his attorney mailed the notice of claim in conjunction with the notice of motion for leave to file a late notice of claim on April 21, 2005.*fn3 Plaintiff contends that after he presented his notice of claim, that NJT never requested him or his counsel to provide a response to the public entity's supplemental claim form. Plaintiff asserts that NJT had ample notice of his claim by July 1, 2004, when its representatives took a detailed telephone statement from him concerning the accident.
NJT counters that plaintiff did not present competent evidence that he had timely presented his notice of claim, because the copy of the notice of claim form submitted in opposition to the motion for summary judgment was not signed. NJT contends that the certification of counsel submitted by plaintiff in support of his motion for reconsideration stating that he had signed the notice of claim form before it was mailed on April 21, 2005, was properly rejected by the trial judge, because plaintiff could have submitted that certification in opposition to the summary judgment motion. Lastly, NJT asserts that plaintiff did not complete and present NJT's specialized claim form, and that the public entity was not required to advise plaintiff that it had adopted a specialized claim form under the Act.
The Act prohibits a plaintiff from filing a claim for personal injuries against a public entity "unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter." N.J.S.A. 59:8-3. The Act requires that a notice of tort claim be filed against a public entity within ninety days after accrual. N.J.S.A. 59:8-8. The purpose of limiting the time in which a claimant may file a notice of claim is to "compel a claimant to expose his intention and information early in the process in order to permit the public entity to undertake an investigation while witnesses are available and the facts are fresh." Lutz v. Twp. of Gloucester, 153 N.J. Super. 461, 466 (App. Div. 1977). The notice of claim also provides the public entity the opportunity to correct conditions or practices that led to the filing of the claim. Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000). If a claimant fails to file a notice of claim within ninety days of accrual, he or she may file a motion for leave to file a late notice of claim within one year of accrual on a showing of "sufficient reasons constituting extraordinary circumstances" for not filing the notice of claim within the first ninety days of accrual. N.J.S.A. 59:8-9.
We agree with plaintiff that at a minimum a question of fact existed concerning whether plaintiff had presented a signed notice of claim on April 21, 2005, containing the information stated in N.J.S.A. 59:8-4. The copy of the notice of claim presented to the court in opposition to the motion for summary judgment did not contain the signature of plaintiff's counsel and was not presented to the court by certification or affidavit, pursuant to Rule 1:6-6. Accordingly, the judge correctly did not consider the copy of the notice of claim form presented. "It is also clear that the mere appending of relative documents to the motion brief does not constitute compliance with [Rule 1:6-6]. Such documents must be incorporated by reference in an appropriate affidavit or certification, with properly authenticates material which is otherwise admissible." Pressler, Current N.J. Court Rules, comment on R. 1:6-6 (2008).
However, plaintiff filed a timely notice for reconsideration and submitted a certification of counsel, certifying that the notice of claim form sent to the NJT had been signed before the document was placed into the mail. On determining a question of fact, the court should have resolved the same by a plenary hearing. Nevertheless, we affirm the grant of summary judgment and the denial of the motion for reconsideration because we are satisfied that, although plaintiff raised a question of fact concerning the filing of a basic notice of tort claim, it is undisputed plaintiff did not file the notice of tort claim form adopted by NJT pursuant to the Act.
The Act permits a public entity to adopt by rule or regulation "forms specifying information to be contained in claims filed against it." N.J.S.A. 59:8-6. By regulation, NJT adopted a specialized five-page claim form requesting that a claimant furnish information in addition to that which is required by N.J.S.A. 59:8-4, including executed medical information release forms running in favor of NJT. See N.J.A.C. 16:88 Appendix A (Claims). Regulations require that all claims against NJT be submitted on the adopted claim form. N.J.A.C. 16:88-3.1(a). "Failure to submit the information required by this chapter . . . shall subject the claim to bar under N.J.S.A. 59:8-8." N.J.A.C. 16:88-3.1(b). Plaintiff argues that neither he or his counsel were supplied with the specialized claim form by NJT, nor were they informed that such form existed and had to be completed and submitted by plaintiff. We reject these contentions.
The burden is on the claimant to comply with the notice of claim provision as adopted by NJT, N.J.S.A. 59:8-6, not on the public entity. See Leidy v. County of Ocean, 398 N.J. Super. 449, 461 (App. Div. 2008) (holding that the County of Ocean and Township of Jackson did not have a duty to inform claimant that the accident occurred within the jurisdiction of the County of Monmouth).
NJT adopted the use of a specialized claim form, pursuant to the authority extended by statute by adopting an administrative regulation pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25. An administrative regulation duly adopted by an administrative agency pursuant to the APA carries the effect of law. Ingraham v. Trowbridge Builders, 297 N.J. Super. 72, 79 (App. Div. 1997); Russell v. Rutgers Cas. Ins. Co., 234 N.J. Super. 175, 179 (App. Div. 1989). Contrary to a municipality, which may adopt a specialized claim form only by resolution not made known to the general public by publication or otherwise, plaintiff, as a member of the public, was on notice of the administrative regulation. N.J.A.C. 16:88-3.1(a). Accordingly, plaintiff was required to complete and present NJT with the specialized claim form. Wood v. County of Burlington, 302 N.J. Super. 371, 378 (App. Div. 1997); Navarro v. Rodriguez, 202 N.J. Super. 520 (Law Div. 1984).
Plaintiff argues that it was incumbent upon NJT to send him the specialized notice of claim form and its failure to do so should not inure to its benefit, citing Newberry v. Twp. of Pemberton, 319 N.J. Super. 671 (App. Div. 1999). We determine Newberry distinguishable from the present matter.
In Newberry, the Township of Pemberton had adopted its own specialized notice of claim form. Following an automobile accident, plaintiff sent the Township a notice of claim form complying with N.J.S.A. 59:8-4, but which did not conform with the Township's own specialized form. One week after the Township received plaintiff's notice of claim, its administrator sent plaintiff the Township's specialized claim form, stating that the Township would not consider plaintiff's claim properly filed until the specialized claim form was completed and returned. Plaintiff completed and returned the specialized claim form three months later, albeit beyond the ninety-day time period. Plaintiff's subsequent motion to file a late notice of claim was denied.
On appeal, we held that "the notice of claim must be deemed to have been timely filed within the ninety-day period prescribed by N.J.S.A. 59:8-8 if the claimant provides the public entity with notice substantially complying with N.J.S.A. 59:8-4 whether or not the public entity has adopted its own claim form . . . provided that the completed adopted form is filed within a reasonable time thereafter." Id. at 672-73 (emphasis added). We affirmed the trial court's denial of the plaintiff's motion for leave to file a late notice of claim, concluding that the original notice of claim filed by plaintiff did not contain all the information required by N.J.S.A. 59:8-4 and that plaintiff had failed to establish extraordinary circumstances, justifying the inadequacy of that claim form. Id. at 680-81. Here, contrary to Newberry, plaintiff neither completed nor returned the specialized claim form to NJT.