On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-527-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and C. S. Fisher.
This matter comes before us for a second time. Derrick Taliaferro appealed from the summary judgment dismissing his Tort Claims Act*fn1 action, against the City of East Orange. He alleged that on January 26, 2001, he fell through an open manhole and that this constituted a dangerous condition of public property. East Orange moved for summary judgment, arguing that it had no notice of this condition.
Shortly before the return date, Taliaferro opposed the motion and submitted a handwritten statement by Edwin Sanchez to the effect that he and others had assisted Taliaferro out of the uncovered manhole. The statement, which was witnessed but not notarized, also indicated Sanchez's address and that he was acquainted with Taliaferro. The statement also read that: on approximately five (5) different occasions in the year prior to January 26, 2001, I observed that the manhole cover in question, was not covering the manhole, but was nearby it.
I saw a workman from [East Orange] . . . place the manhole cover back over the manhole maybe sometime in the Fall of 2000, approximately three or four months before Mr. Taliaferro accident. I saw three workmen at the site. And it took them only a few minutes for them to place the manhole cover back over the manhole.
The judge granted summary judgment, concluding that because Sanchez had not been named in answers to interrogatories, his statement could not be considered.
Taliaferro appealed. On his first appeal, Taliaferro contended that, "discovery should have been extended due to exceptional circumstance and because Sanchez's name was disclosed as soon as it was reasonably available." We remanded, holding that the judge should not have granted summary judgment without first giving Taliaferro the opportunity to move for an extension of discovery pursuant to Rule 4:24-1(c). Taliaferro v. City of East Orange No. A-3800-05T5 (App. Div. November 28, 2000). We held that, should the motion be denied, "the summary judgment will remain in effect."
On remand, Taliaferro moved for an extension of discovery. He certified that he knew Sanchez by sight but did not know his address. For that reason, he was unable to mention him in answers to interrogatories. He ran into Sanchez by chance shortly before the summary judgment motion was to be heard. He learned from Sanchez, for the first time, that Sanchez had observed that this manhole had been uncovered previously and that East Orange was aware of this chronic problem.
The judge denied the motion for an extension of discovery, finding that because Taliaferro was familiar with Sanchez, Taliaferro should have named Sanchez as a witness during discovery. The judge concluded that the failure to do so was not an exceptional circumstance that would permit the late naming of Sanchez as a witness. Therefore, the summary judgment remained in effect.
On appeal Taliaferro contends that the motion for extension of discovery should have been granted. We are not persuaded.
We recognize that Taliaferro may have been aware that Sanchez was a potential witness because he helped him out of the manhole. However, prior to the chance meeting, Taliaferro did not know that Sanchez possessed relevant information regarding East Orange's notice of the problem. Therefore, we disagree with the judge that Taliaferro should have named Sanchez in discovery.
However, we agree with the judge that Taliaferro running into Sanchez is not an exceptional circumstance that warranted an extension of discovery. Taliaferro had the burden of investigating his case in a timely fashion in order to prove the elements of his cause of action. One of these elements is notice. The accident occurred in January 2001. The complaint was filed shortly before the expiration of the two year statute of limitations. The motion for summary judgment was made two years later. During these four years, Taliaferro did not provide evidence to prove the notice element. Belatedly, he provides such proof, not as a result of of ...