July 22, 2010
TOMMIE S. REID, PLAINTIFF-APPELLANT,
UNIVERSITY OF MEDICINE & DENTISTRY OF NEW JERSEY AND DR. PETER RICE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8330-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2010
Before Judges Fisher and Sapp-Peterson.
In this pro se appeal, plaintiff appeals from the Law Division order dismissing his complaint alleging medical negligence in the wrongful removal of his testicles by defendant, Dr. Peter Rice, who was employed by defendant, University of Medicine and Dentistry of New Jersey (UMDNJ), at the time of the surgery. We affirm.
Prior to commencing this action, plaintiff failed to file a Notice of Claim pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The Law Division judge granted defendants' motion to dismiss the complaint for non-compliance with the notice provisions under the TCA. Plaintiff moved for reconsideration which the court also denied. The present appeal followed.
On appeal, plaintiff raises the following points for our consideration:
A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE OPPOSING PARTY HAD NO LEGITIMATE DEFENSE, JUNE 19, 2008.
PLAINTIFF WAS MADE TO REQUEST SECOND PROOF HEARING AUGUST 29, 2008, BECAUSE PURPORTED MISPLACED [SIC] FIRST REQUEST FOR HEARING, JUNE 25, 2008, ON SEPTEMBER 23, 2008, PROOF HEARING DISMISSED NO DEFENDANT APPEARED.
WAS NEVER SCHEDULED, BECAUSE PLAINTIFF['S] EVIDENCE IS MORE THAN SUBSTANTIAL IN PROVING HIS CLAIM.
FIRST TIME PRO SE PLEA TO THE COURT TO EXCUSE MY LIMITED KNOWLEDGE OF THE APPLIED LAW AND FURTHER EXCUSE MY INSUFFICIENT MEANS OF RETAINING REPRESENTATION, BUT IN THE INTEREST OF JUSTICE[,] ALLOW ME TO DEFEND MYSELF ON THE MERITS OF THIS CASE.
TORT . . . A TECHNICALITY SHOULD NOT TAKE PRECEDENT OVER THE INTENDED PURPOSE OF LAW.
The TCA re-establishes sovereign immunity "unless there is a specific statutory provision imposing liability." Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002). Included in the statutory scheme is a notice requirement, which is a jurisdictional precondition to filing suit. Williams v. Maccarelli, 266 N.J. Super. 676, 678 (App. Div. 1993). N.J.S.A. 59:8-3 provides: "No action shall be brought against a public entity or public employee under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter."*fn1 Notice must be filed within ninety days of the accrual of the cause of action, N.J.S.A. 59:8-8, and in the discretion of the court, leave may be granted to file a late notice of claim upon a showing of "extraordinary circumstances" for the failure to file a timely notice provided leave is sought within a reasonable time and not more than two years from the accrual of the cause of action has elapsed. N.J.S.A. 59:8-9.
Here, plaintiff alleges that Dr. Rice improperly removed his testicles in May 2006. Dr. Rice, however, did not perform the surgery. Notwithstanding who performed the surgery, plaintiff was required to file the requisite notice of claim, which plaintiff failed to do. Instead, on April 16, 2008, plaintiff filed a complaint initially in the Special Civil Part and, following dismissal of that action in September 2008, plaintiff re-filed his complaint in the Law Division in October 2008.
There is no dispute that plaintiff at any time prior to filing his initial complaint in April 2008 or the Law Division complaint in October 2008, filed a notice of claim as required by N.J.S.A. 59:8-8, or sought leave to file a late notice of claim under N.J.S.A. 59:8-9. Therefore, plaintiff's complaint was properly dismissed.