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Marano v. Romero

April 16, 2009

ROSINA MARANO AND SILVESTRI MARANO, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
MELVIN ROMERO, M. VASQUEZ, A. VASQUEZ, DEFENDANTS, AND CITY OF ELIZABETH, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

I.

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.

II.

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 ...


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