September 29, 2009
PRISCILLA JOHNSON, PLAINTIFF-RESPONDENT,
BAYONNE MUNICIPAL UTILITIES AUTHORITY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3244-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically September 17, 2009
Before Judges Reisner and Yannotti.
Defendant Bayonne Municipal Utilities Authority (MUA) appeals from an October 24, 2008 order denying defendant's motion for reconsideration of a July 25, 2008 order allowing plaintiff to file a late notice of tort claim. N.J.S.A. 59:8-9. We affirm.
Plaintiff's complaint alleges that on June 21, 2007, she tripped on a depression in the asphalt surrounding a sewer grate located on a public street in Bayonne.*fn1 Apparently believing that the depression in the asphalt was part of the public street, for which Bayonne was responsible, plaintiff's counsel served the City of Bayonne with a notice of tort claim (notice) on September 13, 2006. The notice was served within the ninety-day time limit set by the Tort Claims Act, N.J.S.A. 59:8-8(a).
On October 3, 2007, several days after the ninety-day time limit had expired, Bayonne's municipal attorney called plaintiff's counsel and asserted that the MUA was responsible for maintaining the sewer grate and was therefore the proper party defendant. Plaintiff's attorney promptly served the MUA with the notice on October 4, 2007.
Instead of immediately objecting to the notice as untimely, the MUA's claims adjuster sent plaintiff's counsel a letter dated October 10, 2007, requesting information concerning the accident itself, including photographs or sketches of the scene, the exact location of the accident, and plaintiff's medical records. The letter also reserved the MUA's rights "with regard to . . . timely filing of notice of claim." Plaintiff's counsel provided the requested discovery on October 30, 2007, including photographs of the accident scene. By letter dated November 15, 2007, the MUA sent plaintiff's counsel a letter denying the claim as untimely. The letter also indicated that the assigned adjuster's "investigation" found "no evidence of liability on the part of the Bayonne M.U.A."
There is no dispute that plaintiff's original counsel did not file a motion for an extension of time to serve the notice on the MUA, pursuant to N.J.S.A. 59:8-9. However, on May 20, 2008, plaintiff retained new counsel, Maurice Connelly, who filed the motion on June 2, 2008, within the one-year time limit permitted by N.J.S.A. 59:8-9. His motion was supported by certifications from Connelly and from plaintiff's initial attorney.
While the latter did not explain his delay in filing the motion, Connelly certified that he had personally visited the accident scene, compared it with the contemporaneous photos of the scene, and determined that the accident scene had not changed. He also attested that to the best of his knowledge, all witnesses and relevant documents were still available and the MUA would not be prejudiced by the delay in filing the motion. The MUA did not submit any legally competent evidence of any prejudice it had incurred or would incur by reason of the delay. By order dated July 25, 2008, Judge Antonin granted the motion, noting in writing that the initial notice of claim was filed timely, although it was served on the wrong municipal entity; that the MUA was not prejudiced by the late filing because it received notice only fourteen days after the ninety-day deadline; that the MUA had ample opportunity to investigate the accident; and that the motion to permit late filing was itself filed within the one-year time limit permitted by statute.
The MUA filed a motion for reconsideration. Judge Antonin denied the motion in an October 24, 2008 order, for reasons expressed in an oral opinion placed on the record on that date. She reasoned that the change of attorneys by the innocent plaintiff constituted extraordinary circumstances excusing the late filing of the motion; that the MUA incurred no prejudice because it had notice of the claim fourteen days after the ninety-day period expired, and it did not immediately reject plaintiff's claim but instead sought discovery so that it could investigate the claim; the delay in filing the motion was reasonable under the circumstances; and the motion was properly supported by certifications from witnesses having personal knowledge.
We review the trial court's decision for abuse of discretion. See Leidy v. County of Ocean, 398 N.J. Super. 449, 456 (App. Div. 2008). However, we give greater scrutiny to cases in which the trial court has denied permission to file a late claim "'to the end that wherever possible cases may be heard on their merits.'" Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (quoting Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 134 (1994)).
Having considered the entire record, we find no abuse of Judge Antonin's discretion in granting the motion for permission to file a late notice of claim. We affirm substantially for the reasons stated in Judge Antonin's oral opinion of October 24, 2008. We add the following comments.
Plaintiff did not trip over a sewer grate; she fell on sunken or "subsided" asphalt paving on the municipal street surrounding the grate. Under the circumstances, it is entirely understandable that plaintiff and her counsel would have believed that Bayonne was responsible for the condition of the street surrounding the grate. See Ventola v. N.J. Veteran's Mem'l Home, 164 N.J. 74, 81-82 (2000). And, indeed, the City may ultimately be found to be the responsible entity. However, on receiving the City's letter asserting that the MUA was responsible, plaintiff's counsel served the MUA with the notice the very next day.
As importantly, upon its request, the MUA promptly received all relevant discovery, including photographs of the accident scene. The MUA's claims adjuster had this discovery, and hence the ability to investigate the accident, by October 30, 2007. According to Connelly's affidavit, made based on his personal observation of the photos and the scene itself, the accident scene has not changed since the pictures were taken.
Nothing in this record remotely suggests that the MUA was prejudiced by having received plaintiff's tort claim notice fourteen days after the ninety-day deadline. There is no evidence that plaintiff was at fault for her initial attorney's failure to promptly file the motion. Nor is there evidence that the MUA was prejudiced by any delay in filing the motion.