On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-737-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Yannotti.
Plaintiff Maria Crespo appeals from an order entered by the Law Division on June 19, 2009, which awarded defendant County of Essex (County) attorney's fees and costs pursuant to the frivolous litigation rule, R. 1:4-8. We affirm.
We begin our consideration of this appeal with a statement of the relevant facts and procedural history. On April 30, 2007, plaintiff allegedly tripped and fell on the pavement while she was crossing Elwood Avenue, at the intersection of Mt. Prospect Avenue, in the City of Newark. On May 22, 2007, plaintiff's attorney served upon the City, the County and the City's Water Department, a notice of claim pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3.
The notice of claims stated that plaintiff had sustained personal injuries "due to a negligently, and carelessly constructed, erected, and or palpably unreasonably maintained roadways, and/or cross walks at the intersection of" Elwood and Mt. Prospect Avenues in Newark. The County referred the notice to Inservco Insurance Services, Inc. (Inservco), the claims administrator for its self-insurance program.
On January 22, 2008, plaintiff filed a complaint in the Law Division, in which named the City, County and certain fictitious parties as defendants. Plaintiff alleged that on April 30, 2007, she was a lawful pedestrian "upon the premises owned by the defendants located at Elmwood [sic] Avenue [at]/or near the intersection of Mount Prospect Avenue." Plaintiff further alleged that defendants were "either the owner of the street, responsible for maintenance and repair of the street, and/or created the dangerous and hazardous condition in the street." Plaintiff claimed that she was injured when she fell, as a "direct and proximate result of the negligence and carelessness" of defendants.
By letter dated January 30, 2008, Ron Huntley (Huntley), a senior claim representative for Inservco, informed plaintiff's attorney that the County "does not own, maintain [or] control Elwood Avenue or Mt. Prospect Avenue" in Newark and, therefore, the County was "not involved in this claim." In the letter, Huntley also stated that" the County of Essex takes an aggressive approach in responding to claims that are not properly directed to it. We must advise you that under the New Jersey Frivolous Lawsuit Act, the County's policy is to seek reimbursement of all legal fees and expenses for any suit filed against it without merit.
On February 27, 2008, the County filed an answer in which it denied the allegations in plaintiff's complaint. Plaintiff also asserted twenty-six separate defenses, and made a cross- claim for contribution and indemnification from the other defendants.
In her answers to the Form A Interrogatories, plaintiff asserted that she tripped and fell "on an uneven re-patched/re-paved portion of the crosswalk" at the intersection of Elwood Avenue and Mt. Prospect Avenue. She stated, among other things, that her claim arose from a "[f]ailure to properly maintain, supervise and make repairs to the intersection crosswalk used by pedestrians."
On April 2, 2008, an assistant county counsel wrote a letter to plaintiff's attorney, and stated that the County had previously advised that the intersection in question was not owned, maintained or controlled by the County. The assistant county counsel said that he had also contacted plaintiff's attorney by phone and left a message again advising that the County did not own, maintain or control the intersection and inquiring whether plaintiff would be willing to execute a stipulation of ...