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Marano v. Romero


April 16, 2009


On appeal from Superior Court of New Jersey, Law Division, Civil Part, Union County, Docket No. L-0487-08.

Per curiam.


Argued Telephonically March 10, 2009

Before Judges Rodríguez and Waugh.

Defendant City of Elizabeth (City) appeals from the Law Division's order permitting plaintiff Rosina Marano and her husband, plaintiff Silvestri Marano,*fn1 to file a late notice of claim pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:8- 1 to -11. We affirm.


On the morning of August 23, 2007, Rosina Marano was walking on North Reid Street in Elizabeth when she fell. She alleges that her fall was caused by the poor condition of the sidewalk. She sustained a fracture of both left superior and interior rami of the pelvic bone. Marano was taken to the emergency room at Trinitas Hospital. She was admitted to the hospital and remained there under treatment from August 23 to September 4, 2007. She was then transferred to the Brother Bonaventure Extended Care Center, where she was a patient until she was discharged to her home on October 11, 2007.

On January 7, 2008, Marano's attorney mailed a document to the City. The document was in the form of a notice of claim pursuant to N.J.S.A. 59:8-1. The document was received by the Elizabeth City Clerk and the Elizabeth Law Department on January 9, 2008. The City rejected the notice as untimely.

On February 8, 2008, Marano filed a notice of motion for leave to file a late notice of claim, returnable February 29, 2008. The motion was supported by the certification of one of her attorneys. The City opposed the motion. On February 26, 2008, Marano requested an adjournment of the motion so that counsel could respond to the opposition, also noting that counsel was in receipt of voluminous records from Trinitas Hospital. The motion judge granted the adjournment request and scheduled the motion for March 14, 2008.

Marano submitted a letter brief in further support of the motion, attaching medical records from Trinitas Hospital. On March 14, 2008, the motion judge denied the motion for leave to file a late notice of claim.

On March 31, 2008, Marano filed a notice of motion for reconsideration. In support of the motion, Marano submitted certifications from herself and her daughter, Filomena Karabinchak, as well as another certification from counsel.

Judge Katherine R. Dupuis heard oral argument on April 25, 2008, stating at the close of oral argument that she would be granting the motion in a written decision. On May 29, 2008, she issued her written opinion and an order that granted the motion for reconsideration, vacated the March 14, 2008, order of denial, and granted leave to file a late notice of claim. This appeal followed.


The City appeals from Judge Dupuis' order, arguing that she should not have granted the motion for reconsideration and that, in any event, Marano did not meet the "extraordinary circumstances" requirement of N.J.S.A. 59:8-9.


We first address the motion for reconsideration under Rule 4:49-2, which is a matter left to "the trial court's sound discretion." Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App.Div.), certif. denied, 195 N.J. 521 (2008). Such a motion is not properly brought simply because a litigant is dissatisfied with a judge's decision, nor is it an appropriate vehicle to supplement an inadequate record. Ibid. It is primarily an opportunity to seek to convince the court that "either 1) [it] 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. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). A litigant may also bring up new matter that was not available when the initial motion was filed. Ibid.

We do not appear to have Judge Dupuis' oral decision denying the initial motion.*fn2 However, we glean from the briefs that the reason for denial was the failure to submit certifications based on personal knowledge and to convince the motion judge that there were "extraordinary circumstances."

Although the information contained in the additional certifications that accompanied the application for reconsideration clearly expanded on the information contained in counsel's certification in support of the first motion, the basic facts were similar, i.e., that Marano was severely injured and was in healthcare facilities from the day of the accident through October 11, 2007. However, we are not aware that those facts were in dispute, at least in terms of Marano's dates of institutionalization.

The second set of certifications were based upon personal knowledge, as required by N.J.S.A. 59:8-9, whereas the initial certification was not. They expanded upon the information contained in the initial application, including information that was apparently not known by counsel at the time the motion was filed. The motion judge described the submission as follows:

Plaintiff's motion for reconsideration is based on belief that the court should now consider new information that it could not have provided on the first application. The new information presented is the certifications of plaintiff and plaintiff's daughter, Filomena Karabinchak. Plaintiff's counsel alleges that the details and extent of plaintiff's injuries were unknown to both counsel and the plaintiff at the time the original application was made. Furthermore, plaintiff's counsel contends that the combination of plaintiff's language barrier, usage of pain medication, hospitalization, and rehabilitation does constitute exceptional circumstances such that this court should now consider this information and permit a filing of a late notice of claim.

The motion judge chose to exercise her discretion to accept and consider the new material. On the record before us, we are unable to find the motion judge abused her discretion when she granted the motion for reconsideration "in the interests of justice." D'Atria, supra, 242 N.J. Super. at 401. See also Escoett v. Aldecress Country Club, 16 N.J. 438, 451-52 (1954) (recognizing "the general policy against procedural frustrations of determinations on the merits").


We now turn to the substantive issue of whether Marano satisfied the statutory requirements for the late filing of a notice of claim. The legal standards applicable in this case were discussed at length in our opinion in Leidy v. County of Ocean, 398 N.J. Super. 449 (App. Div. 2008).

Claims against public entities are governed by the Tort Claims Act. N.J.S.A. 59:8-1 to -11. A party has ninety days from the accrual of his claim to file notice of a claim against a public entity. N.J.S.A. 59:8-8(a). This notice requirement was created:

(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet.

[Moon v. Warren Haven Nursing

Home, 182 N.J. 507, 514 (2005) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)) (internal quotation marks and citations omitted in original).]

There is an exception to the ninety-day notice rule. N.J.S.A. 59:8-9 provides:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the

Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.

[N.J.S.A. 59:8-9 (emphasis added).]

Thus, although the decision to grant a plaintiff permission to file late notice of a tort claim "'is a matter left to the sound discretion of the trial court,'" R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340 (App. Div. 2006) (quoting Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 403 (App. Div. 1996), overruled on other grounds by Beauchamp, supra, 164 N.J. at 120), this "discretion is limited to cases in which the claimant's affidavit shows 'sufficient reasons constituting extraordinary circumstances' for the delay and there is no 'substantial [] prejudice []' to the public entity or employee." Ibid. (quoting Ohlweiler, supra, 290 N.J. Super. at 403) (alterations in original). Findings about "the lack of 'substantial prejudice' and the presence of 'extraordinary circumstances' . . . . must be expressly made in order to comply with the legislative mandate and to justify the entry of an order permitting the filing of a late notice of claim under N.J.S.A. 59:8-9." Allen v. Krause, 306 N.J. Super. 448, 455-56 (App. Div. 1997).

The "extraordinary circumstances" requirement was not part of the original Act, and mere "sufficient reasons" sufficed to warrant relief from the statutory time bar. Lowe v. Zarghami, 158 N.J. 606, 625 (1999). The "extraordinary circumstances" language was added by amendment in 1994, L. 1994, c. 49, § 5, in order to "raise the bar for the filing of late notice from a 'fairly permissive standard' to a 'more demanding' one." Beauchamp, supra, 164 N.J. at 118 (quoting Lowe, supra, 158 N.J. at 625). "'[T]he amendment may have signaled the end to a rule of liberality' in filing." Ibid. (quoting Lowe, supra, 158 N.J. at 626) (alteration in original). Notably, the 1994 amendment "'does not define what circumstances are to be considered "extraordinary" and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of "extraordinary" on the facts presented.'" Lowe, supra, 158 N.J. at 626 (quoting Allen, supra, 306 N.J. Super. at 455; O'Neill v. City of Newark, 304 N.J. Super. 543, 551 (App. Div. 1997); Ohlweiler, supra, 290 N.J. Super. at 404; Margolis and Novack, Claims Against Public Entities, Comment on N.J.S.A. 59:8-9 (1999)).

[Id. at 455-57.]

We now turn to Judge Dupuis' detailed reasons for allowing the late filing. After setting forth the governing facts and procedural background, Judge Dupuis explained her reasons for allowing the late filing of Marano's notice of claim as follows:

In the case of [] Blank v. City of Elizabeth, 162 N.J. 150 (1999), the plaintiff was a 61 year-old non-English speaking Russian immigrant who tripped over a pipe protruding from a sidewalk and sustained injuries. The accident occurred on February 27, 1997, and a Notice of Claim was served on the residential property owner, who in turn gave it to their insurance carrier. The insurance carrier informed the attorney that the pipe belonged to the City of Elizabeth on November 17, 1997, nine months after the accident. The trial court granted the plaintiff's motion to file a late notice of claim pursuant to N.J.S.A. 59:8-9, finding that exceptional circumstances existed. The Appellate Division reversed, holding that there were no exceptional circumstances, but remanded the case back to the trial court so the City of Elizabeth could demonstrate how they were prejudiced by the filing of a late notice of claim. Blank v. City of Elizabeth, 318 N.J. Super. 106 (App. Div. 1999). The Supreme Court affirmed the Appellate Division's reversal of the trial court's decision, but modified the Appellate Division's decision by precluding the remand for further presentation of evidence on the extraordinary circumstances issue. Blank[, supra,] 162 N.J. [at] 153 []. The Court found that an inspection of the accident area within a reasonable time would have led to the prompt identification of the City of Elizabeth as the party responsible for the pipe. Id. at 152. The pipe was actually a round, metal shut-off valve that is customarily used by water suppliers, which would indicate that a public entity was responsible for its upkeep. Ibid.

The Court finds Blank to be distinguishable from the instant matter. Mrs. Marano was hospitalized, relocated to a rehabilitation facility, and thereafter housebound with visiting nurses and therapists from the time of her fall on August 23, 2007, until December 27, 2007, according to her certification. She had to be accompanied by her daughter for the visit to her attorney due to both her language difficulty and the fact that she was unable to walk without assistance of a cane or a walker.

In a more analogous case, the Appellate Division permitted a late notice of claim to be filed in a situation where the plaintiff was repeatedly hospitalized due to a staph infection that she contacted while at her place of employment, which happened to be a state facility. Maher v. County of Mercer, 384 N.J. Super. 182 (App. Div. 2006). In Maher, the plaintiff was hospitalized in November 2003 with a severe medical condition that was undiagnosed for about a month, during which it was unclear whether she would survive. Id. at 185. One of plaintiff's doctors told plaintiff's daughter in November that he had noticed a burn on plaintiff's arm that she received at work, and that may have been the entry point for the staph infection. Plaintiff's daughter told plaintiff's attorney about the hospitalization at that time because he was counsel for her in an unrelated manner. It was not until May 2004 that plaintiff's staph infection was diagnosed as being "community-acquired" and possibly related to a burn that she received while at work. Ibid. The court determined that the date that plaintiff was on notice of a possible tort claim was in November 2003 when she burned herself at work. Plaintiff's notice of tort claim was filed in August 2004, thus the court concluded that it exceeded the ninety-day filing requirement since the cause of action accrued in November 2003. Id. at 189. The trial judge determined that [extraordinary] circumstances did not exist. The Appellate Division noted that there was little guidance in the area of what constitutes an extraordinary circumstance such that it would be permissible to allow a late notice of claim to be filed, however, plaintiff's repeated hospitalizations and overall medical condition satisfied the Appellate Division that [extraordinary circumstances] did exist in that case and they reversed the trial court. "There is little to guide us in interpreting the meaning of extraordinary circumstances. Indeed, this phrase, added when the Act was amended in 1994, is still imprecisely understood. Nevertheless, we regard plaintiff's circumstances to fall within the meaning of the term 'extraordinary' so as to afford her relief." Id. at 190 (citations omitted). The court also concluded that there was no evidence that the defendant would be prejudiced by permitting a late notice of claim to be filed. Ibid.

Here, plaintiff's situation is similar to that of the plaintiff in Maher. The extended hospital and rehabilitation stays prevented plaintiff from contacting her attorney for one hundred and [fifty] days from the accrual of the cause of action. Plaintiff continued to be confined to her home and under the influence of heavy pain medication for the duration of the ninety-day period. Plaintiff's certification states that her consistent state of heavy sedation prevented her from communicating with her attorney. The language barrier was also a contributing factor to the delay in filing the claim.

It is clear that a finding that exceptional circumstances existed that prevented the timely filing of the notice of claim is appropriate when viewing the facts as a whole. The plaintiff, an elderly woman, was housebound, heavily medicated, and had prolonged medical treatment due to the severity of her injuries. Furthermore, when the late notice was initially filed, it was late by approximately sixty days. There was no showing that the defendant was prejudiced by permitting the late notice of claim to be filed. Thus, given the existence of exceptional circumstances and a lack of prejudice to the defendant, this court reverses it decision in the initial motion to file a late notice of claim.

We are satisfied that Judge Dupuis' decision to allow the late filing of Marano's claim was a sound exercise of her discretion and fully in keeping with the requirements set forth above. We affirm substantially for the reasons stated in her opinion.


In summary, we affirm Judge Dupuis' order, both as to the granting of the motion for reconsideration and the granting of leave to file a late notice of claim.


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