April 27, 2009
PORFIRIO LAUREANO, PLAINTIFF-RESPONDENT,
COUNTY OF CAMDEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0515-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 16, 2009
Before Judges Lisa and Sapp-Peterson.
The defendant County of Camden (County) appeals from the April 9, 2008 order granting plaintiff Porfirio Laureano leave to file a late notice of claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, and the June 5, 2008 order denying reconsideration of its decision. We affirm.
Plaintiff's claim arises out of her allegation that she fell and sustained injuries on an uneven sidewalk on the State Street Bridge in Camden on March 28, 2007. In a letter dated June 27, 2007, plaintiff's counsel notified the City of Camden (City) of plaintiff's purported claim. However, this notice advised that the fall occurred on April 28, 2007 at the same location. The letter was addressed to the City via "City Hall[,] 6th & Market Sts.[,] P.O. Box 95120[,] Camden, N.J. 08101-5120." The response to the notice did not come from City Hall. Rather, in a letter dated August 2, 2007, Scibal Associates, the City's claims administrators, advised plaintiff's lawyer that the City did not "own, inspect or maintain the location of loss [sic] State Street Bridge." Nearly two months later, in a letter dated September 26, 2007, plaintiff's counsel gave notice to the County's counsel of plaintiff's claim. On October 4, 2007, the County's counsel authored a letter to plaintiff's counsel acknowledging receipt of the September 26 letter but also advising that the notice to the County was untimely and that plaintiff's counsel must seek leave to file a late notice of claim pursuant to "the Tort Claims Act, N.J.S.A. 59:8-1...."
Plaintiff's motion seeking leave to file a late notice of claim was subsequently filed. The certification in support of the motion was submitted by plaintiff's counsel, who simply indicated that when he received notice from the City on August 18, 2007 that the area where plaintiff allegedly fell was not owned or under the control of the City, he immediately directed a "Notice of Loss" to Scibal Associates, "but this time on behalf of the County of Camden." The court granted the motion, reasoning that plaintiff had "forwarded the notice of tort claims to the County of Camden prior to March the 28th, 2008, within... one year after accrual of its claim."
The County moved for reconsideration, arguing that plaintiff failed to set forth extraordinary circumstances for relief, which is the standard for granting leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. Specifically, the County urged that its identity had not been "obscured" and that plaintiff had not sought leave to file a late notice of claim within a reasonable time. The court rejected defendant's argument and concluded that the "proper party for suit as a defendant was, indeed, 'obscured' as described in [Leidy v. County of Ocean, 398 N.J. Super. 449, 458 (App. Div. 2007)]." The present appeal followed.
On appeal, the County raises the following points for our consideration:
POINT I THE TRIAL COURT'S DECISION PERMITTING PLAINTIFF LAUREANO TO FILE A LATE NOTICE OF TORT CLAIM AGAINST THE COUNTY WAS AN ABUSE OF DISCRETION. THEREFORE, THE TRIAL COURT'S DECISION SHOULD BE REVERSED.
POINT II PLAINTIFF LAUREANO FAILED TO SET FORTH 'EXTRAORDINARY CIRCUMSTANCES' AS REQUIRED TO BE PERMITTED TO FILE A LATE NOTICE OF TORT CLAIM UNDER N.J.S.A. 59:8-9. ACCORDINGLY, PLAINTIFF SHOULD NOT BE PERMITTED TO FILE A LATE NOTICE OF TORT CLAIM.
Because a decision to permit the filing of a late notice of claim is committed to the sound discretion of the court, we review the exercise of that discretion only for an abuse. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988); R.L. v. State-Operated Sch. Dist. of Newark, 387 N.J. Super. 331, 340 (App. Div. 2006); see generally Tarr v. Bob Ciasulli's Mack Auto Mall, 390 N.J. Super. 557, 563 (App. Div. 2007), aff'd, 194 N.J. 212 (2008). In exercising its discretion to permit the filing of a late notice of claim, the court's inquiry is whether the moving party has set forth sufficient reasons constituting extraordinary circumstances for the failure to timely file the notice. N.J.S.A. 59:8-9; Leidy, supra, 398 N.J. Super. at 456.
Here, at the outset, we observe that the focus of the motion judge's analysis was his conclusion that leave had been sought within one year of the accrual of plaintiff's cause of action. We think the more critical inquiry is whether sufficient reasons constituting extraordinary circumstances were established, since seeking leave to file a late notice of claim within one year of the accrual of the cause of action, standing alone, does not justify relief. Ibid. We note that during the reconsideration motion, the court referenced another finding it made, namely, its conclusion that the property owner's identity was obscured. It did not, however, expound upon that finding.
Although it is true that at the time of the fall, Scibal Associates was the claims administrator for both the County and the City, in responding to plaintiff's notice of claim in its August 2, 2007 letter, Scibal Associates never acknowledged that the proper party to be served with the notice of claim was its client, the County. Had the City responded directly to plaintiff's notice rather than through its claims administrator, we would agree, as the County argued before us, that there was no duty to alert plaintiff's counsel to the identity of the property owner. Nonetheless, because Scibal Associates responded on behalf of the City while it was also serving as the claims administrator for the County, we agree that there was a level of obscurity evident here.
The term "extraordinary circumstances" referenced in N.J.S.A. 59:8-9 is not defined. In Lowe v. Zarghami, 158 N.J. 606, 629 (1999), the Court set forth the criteria for judicial determinations of whether sufficient reasons have been shown to meet the standard of "extraordinary circumstances":
The notice provisions of the Tort Claims Act were not intended as "a trap for the unwary." Murray v. Brown, 259 N.J. Super. 360, 365, 613 A.2d 502 (Law Div. 1991). "Generally, we examine 'more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application.'" Feinberg, 137 N.J. at 135, 644 A.2d 593 (quoting S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107, 122, 373 A.2d 364 (1977)); Randazzo v. Township of Washington, 286 N.J. Super. 215, 668 A.2d 1083 (App. Div. 1995). Not any one factor constitutes "sufficient reasons," but courts consider a combination of factors. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 149, 543 A.2d 443 (1988). Likewise, because "extraordinary circumstances" is an imprecise standard, each case will depend on its own circumstances.
Applying these principles here, plaintiff alleges that she sustained a qualifying injury as a result of a condition of property owned, inspected and maintained by the County. At best, the County had informal notice of plaintiff's claim as early as June 27, 2007, if the notice to the City was conveyed to Scibal Associates on that same date or, at the very latest, sometime between that date and August 2, 2007, when Scibal Associates advised plaintiff's counsel that the City had no connection to the property. In the August 2 correspondence, Scibal Associates did not choose to advise plaintiff that the public property at issue was owned by the County. While we ascribe no deliberate intent to conceal this information from plaintiff, obfuscation of the correct public entity's name was still the result.
As noted earlier, our review is more stringent in cases in which leave to file a late notice of claim has been denied than in those in which it has been granted, "to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application." Lowe, supra, 158 N.J. at 629. Additionally, it is noteworthy that defendant does not claim prejudice resulting from the late filing. At best, the circumstances surrounding the County's notice of plaintiff's claim is a close question for which any doubt should be resolved in favor of allowing the application.
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