On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1314-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges Lisa and Sapp-Peterson.
Plaintiff, Paulette Fultz, appeals from the April 25, 2007 order denying her motion to file a late notice of tort claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and from the August 24, 2007 order denying her motion for reconsideration. The trial court found that plaintiff failed to provide sufficient reasons constituting extraordinary circumstances to justify the late filing. We conclude that this determination constituted a mistaken exercise of discretion. Accordingly, we reverse and remand.
On December 6, 2006, while waiting at defendant's Rahway station for the 6:49 a.m. train to New York as part of her morning commute to work, plaintiff contends that the heel of her shoe got caught in a crevice in the platform, causing her to fall to the ground and sustain injuries. The platform was not staffed, as a result of which plaintiff could not report the incident to anyone at that time. She took the train to work and called defendant, reporting the incident and providing information. Two weeks later, she called again and spoke to the same person, repeating her report of the incident. By letter of December 18, 2006, defendant corresponded with plaintiff, acknowledging her telephone report with the claims department and furnishing her with a Notice of Claim. The letter advised that plaintiff was required to file the completed form within ninety days of the accident and that "[f]ailure to supply the information required in the time prescribed by the statute may result in your claim being forever barred."
At about the same time the letter was sent to plaintiff, the author of the letter called plaintiff and further discussed the incident with her. Plaintiff does not dispute receiving the letter or the claim form. She did not file the completed form within ninety days of her accident. She filed it, through counsel, on April 4, 2007, twenty-nine days past the ninety-day deadline.
On April 10, 2007, plaintiff moved for an order authorizing the late filing, supported by her certification and supplemental certification explaining the reasons. Plaintiff stated that upon receiving the letter from defendant containing the claim form, she "did not focus on the cover letter" because she "believed they were already aware of my claim through the three telephone conversations," and "[a]t no time during these conversations with New Jersey Transit Officials was I verbally told of the 90 day deadline." In January, plaintiff contacted the law offices of a Mr. Fenmore, a Rahway attorney, for potential representation. After several telephone calls to Mr. Fenmore's office, plaintiff was ultimately advised by his secretary that he was not interested in handling her case.
In late January, plaintiff met with her present counsel. The meeting was early in the morning before plaintiff had to go to work. Apparently, counsel was going to review the matter, and there was no extended discussion. Although plaintiff did not discuss it with the attorney, she was "leaving shortly" to travel to Ohio for several days to visit with her eighty-two-year-old mother, who was critically ill, and to participate, along with plaintiff's siblings, in end of life decisions. Plaintiff, who does not drive, was driven to Ohio for this purpose. She and her siblings made arrangements to transfer her mother from a hospital to a nursing home.
In the succeeding weeks, plaintiff's sister called her several times a day, updating her on their mother's condition and pressuring plaintiff to sign over their mother's house to the sister and to provide financial assistance for the nursing home expenses. At the same time, plaintiff continued working, but got behind in her work. Her work schedule involved twelve hour days, with her normal commute beginning at 6:30 a.m. and returning at 7:00 p.m. Plaintiff also got behind in her medical treatment, which included physical therapy, which she received during lunch hours. During this same time period, plaintiff learned that her son dropped out of college six months before his anticipated graduation. In addition to the great disappointment resulting from this news, plaintiff also realized a significant adverse financial consequence because her son's student loans, for which she was responsible, would now be accelerated.
All of these circumstances combined to cause plaintiff substantial emotional distress. She certified that she was taking 10 mg of Lexapro daily for anxiety and stress. She stated that, "[h]aving given notice to New Jersey Transit twice in December which was documented, I was unable to refocus on my case with [present counsel] until late March." At that time, the claim form was finally completed, signed and certified by plaintiff, and filed with defendant on April 4, 2007.
At the motion hearing on May 25, 2007, defendant conceded it would suffer no prejudice from the late filing. And, there has been no contention that the filing was not made within a reasonable time after expiration of the ninety-day deadline. The issue before the court was whether plaintiff made a sufficient showing of extraordinary circumstances. The judge was sympathetic to the personal problems plaintiff was experiencing and the stress she was under, but characterized the situation as "everyday stressors that we know -- ill parents, nuisance children -- I mean things that everybody has in their daily lives." The judge noted that defendant sent plaintiff the claim form and a letter telling her she was required to file it within ninety days of the accident. The judge also noted that this was not a situation where plaintiff had been in the hospital for an extended period of time or suffered "a psychotic episode." The judge denied plaintiff's motion.
Plaintiff moved for reconsideration. In support of the motion, plaintiff provided medical information, revealing that she suffered from post-traumatic stress disorder and depression, which existed prior to her accident, and for which she had been prescribed the Lexapro. A handwritten note from her physician, Dr. John D. Lupiano, was attached to plaintiff's certification. Dr. Lupiano confirmed his diagnosis and the prescription of Lexapro and stated that "[t]hese conditions interfere with her ability to complete paperwork in a timely fashion."
In her certification, plaintiff explained why she did not reveal this information sooner: "As a general nature, I am a proud and private woman who goes about my business. For those reasons, as well as embarrassment, I did not initially disclose to [my present attorney] or the Court the difficult emotional personal circumstances I was going through during the 90 day filing period." In light of the court's ruling denying her original motion because the stressors she was under were typical of ordinary life, plaintiff stated she was now submitting ...