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Kleinman v. Dep't of Labor

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 29, 2010

MARGARET KLEINMAN, PLAINTIFF-APPELLANT,
v.
DEPARTMENT OF LABOR, DIVISION OF UNEMPLOYMENT AND DISABILITY INSURANCE, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-992-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 8, 2010

Before Judges Yannotti and Chambers.

Plaintiff Margaret Kleinman appeals from the order of May 9, 2008, dismissing her complaint with prejudice and the order of July 3, 2008, denying her motion for reconsideration.

In her complaint filed on February 5, 2008, plaintiff contends that nineteen years earlier, on February 10, 1989, her employer improperly denied her application for temporary disability benefits from its private temporary benefits plan. When she contacted the defendant Division of Disability and Unemployment Insurance in the Department of Labor (the Division) at that time to determine what could be done, she contends that she was told that nothing further could be done because a private plan rather than a state plan was involved. She maintains that she was not advised of her right to appeal and the procedures involved to do so. She contends that the denial of the temporary disability benefits caused her financial "ruin" and led to "a lifetime of financial hardship, worry and insecurity." Her claim for damages includes claims for compensatory damages for financial losses and pain and suffering and punitive damages for infliction of emotional distress. Plaintiff is now an attorney and acknowledged to the trial court that she became an attorney in 1996, twelve years before this action was instituted.

On May 9, 2008, the trial court granted the Division's motion to dismiss the complaint on the basis that plaintiff had failed to exhaust her administrative remedies and that the claims were barred by the statute of limitations in the Tort Claims Act, N.J.S.A. 59:8-8. In her motion for reconsideration, plaintiff disputed the trial court's previous rulings and also raised due process issues regarding the Division's failure to advise her of her rights in 1989. The trial court found these arguments to be without merit and denied the motion for reconsideration.

On appeal, plaintiff contends that the trial court erred in failing to find a due process violation in the Division's action, in holding that she should have exhausted administrative remedies, in failing to find that under the discovery rule her claim was timely, in finding her complaint untimely when the Division had not pleaded the defense of laches, and in holding that she did not state a claim, maintaining that her suit sounded in negligence not misrepresentation.

After a careful review of the record, we find that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth by the trial judge.

Affirmed.

20100329

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