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Howe v. New Jersey Transit Corp.

July 22, 2008

JAMES HOWE, PLAINTIFF-APPELLANT,
v.
NEW JERSEY TRANSIT CORP., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2331-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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