On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3618-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, Yannotti and LeWinn.
Plaintiff Jason Bough appeals from an order entered on August 3, 2007 dismissing his complaint as to the Title 59*fn1 defendants.
This case arises out of the Morris County Probation Department's referral of probationers to Beginnings Counseling & Referral Services (Beginnings), a publicly funded drug and alcohol treatment program. At Beginnings, a number of probationers encountered an individual initially identified as "Dr. Mike," whose real name is Terence Michael Lynch. Lynch was previously convicted of sex offenses in Morris County. During the course of his "treatment" of probationers, he engaged in inappropriate sexual contact and conversation with them. Plaintiff is the most recent in a series of plaintiffs, previously before this court in Monteagudo v. Morristown, Docket No. A-6113-05T1; Chavis v. Morris County, Docket No. A-6114- 05T1; and Marchitello v. Morris County, Docket No. A-6115-05T1. These cases were consolidated and decided in March 2007.
The facts relevant to this appeal are as follows. In December 2004, plaintiff was sentenced to probation and directed to attend Beginnings for a drug and alcohol evaluation. On December 15, 2004, he met Lynch at Beginnings. Lynch engaged plaintiff in inappropriate touching and conversation. In March 2005, a detective from the Morris County Prosecutor's Office contacted plaintiff about Lynch. The detective asked plaintiff not to take any legal action, however, until after the matter was made public. The matter was made public in newspaper reports on February 1, 2006.
In February 2006, plaintiff began counseling for the trauma he suffered as a result of the incident at Beginnings and consulted an attorney about bringing a lawsuit. Plaintiff's counsel did not serve notices of tort claim on any of the Title 59 defendants -- Morris County Probation Office, New Jersey Department of Corrections, the Town of Morristown and Beginnings -- until June 9, 2006. Moreover, plaintiff's counsel did not move for leave to serve late notices of claim until August 9, 2006.
The Title 59 defendants moved for summary judgment on the ground that plaintiff failed to serve timely notices of claim. After hearing arguments, the trial court found that the cause of action accrued on February 1, 2006, the date on which the allegations against Lynch were made public. The court found that
[a]t that point . . . plaintiff . . . knew everything, knew what was going on, knew that this guy Lynch was bad, knew who hired him, knew who kept him on the payroll, knew he was from Beginnings, and at that point they should have been ready and chomping at the bit to file their . . . notice of claim.
The trial court found that plaintiff should have served the notices of claim within ninety days of February 1, 2006, and had demonstrated no exceptional circumstances for not doing so.
In this appeal, plaintiff argues that the trial court "erred in applying a ninety-day notice requirement not found in N.J.S.A. 59:8-9."
Actions against public entities, agencies or employees are governed by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. In order to file such an action, a plaintiff must timely serve a notice of tort claim pursuant to N.J.S.A. 59:8-8:
A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. After the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The ...