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Brooks v. South Plainfield Police Dep't


September 23, 2010


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7695-09.

Per curiam.


Argued September 13, 2010

Before Judges Lisa and Reisner.

In these back-to-back appeals, which we now consolidate for disposition in a single opinion, defendants appeal from the October 23, 2009 order*fn1 allowing plaintiff to file a late notice of claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. We agree with defendants that the trial judge mistakenly exercised his discretion because the record cannot support a finding of the "extraordinary circumstances" standard required for late filing by N.J.S.A. 59:8-9. Accordingly, we reverse.

The only facts in the record are taken from plaintiff's certification in support of his motion to allow the late filing. At all relevant times, plaintiff was a corrections officer employed by the New Jersey Department of Corrections. In January 2008, defendant Detective James Darby of defendant South Plainfield Police Department issued a criminal complaint against plaintiff. The charge was presented to a grand jury by the defendant Middlesex County Prosecutor's Office and resulted in an indictment against plaintiff for hindering the apprehension of his grandson. The indictment against plaintiff was dismissed on December 12, 2008. Apparently, unspecified criminal charges continued to remain pending against plaintiff's grandson.

Plaintiff alleged that Darby "maliciously" filed the complaint against him and "purposely provided false information to the Grand Jury to secure the indictment." Plaintiff further alleged that as a result of these events his reputation was damaged, he was suspended from his employment, and he was "not allowed to carry a weapon or work overtime hours for approximately one month."

Plaintiff concluded his certification with the following statements, which are relevant to the legal sufficiency of the late claim notice:

8. My emotional state was adversely affected after I was falsely charged and treated unfairly.

9. After the dismissal of the false charges against me, I continued to suffer from stress from the emotional impact of dealing with my grandson's criminal matter. To this date, I continue to attend Court hearings with my family in support of my grandson.

10. I was also unaware of the legal requirements of the New Jersey Tort Claims Act and because of my emotional state, and for other reasons I was unable to secure the services of an attorney.

Plaintiff filed the motion on September 11, 2009. His cause of action against defendants accrued upon dismissal of the indictment on December 12, 2008. Muller Fuel Oil Co. v. Ins. Co. of No. Am., 95 N.J. Super. 564, 576-77 (App. Div. 1967). The motion was therefore filed about six months beyond the ninety-day period for filing claim notices prescribed by N.J.S.A. 59:8-8. Plaintiff sought to avail himself of the late claim provision of N.J.S.A. 59:8-9, which authorizes courts to permit a claim notice to be filed within one year of accrual of the cause of action if the public entity or employee will not be substantially prejudiced. That section also requires that a motion to allow late filing must be supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim with a reasonable time thereafter. [N.J.S.A. 59:8-9 (emphasis added).]

The quoted portion of N.J.S.A. 59:8-9 resulted from a 1994 amendment, see L. 1994, c. 49, § 5, to the original version of that section, as enacted in 1972, which had required only that a motion to allow late filing be based upon affidavits showing sufficient reasons for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act. [New Jersey Tort Claims Act, L. 1972, c. 45, § 59:8-9 (codified as amended at N.J.S.A. 59:8-9) (emphasis added).]

The amendment made two significant changes. It replaced the general "sufficient reasons" standard with a more demanding "extraordinary circumstances" standard. It also required applicants to demonstrate extraordinary circumstances not only for why they could not serve the notice of claim within ninety days, but also why they could not have filed the late claim notice motion sooner after the running of the ninety-day period.

Defendants opposed plaintiff's motion. They contended plaintiff's certification was grossly deficient and could not establish extraordinary circumstances. They pointed out that plaintiff failed to supply such pertinent information as: his relationship with his grandson (e.g. custodial or not) at the time of the charges and presently; the grandson's age; the nature of the charges against the grandson; whether the grandson had counsel; whether plaintiff had counsel in the criminal action; what "other reasons" prevented plaintiff from consulting counsel; what, if any, treatment or counseling plaintiff received during this time to corroborate his claim of emotional distress; how, if at all, plaintiff's daily activities were affected; and how, if at all, his employment was affected.

Defendants suggested to the court that it only seemed logical, and should be inferred, that any stress caused by the filing of the allegedly false charges in January 2008 was "greatly relieved" when the indictment was dismissed on December 12, 2008. Yet plaintiff did not explain why he could not file a claim notice within ninety days, but instead waited nine months to move for leave to file a late notice.

Citing Escalante v. Township of Cinnaminson, 283 N.J. Super. 244 (App. Div. 1995), defendants correctly argued that, standing alone, plaintiff's ignorance of the legal requirement to file a timely claim notice was an insufficient reason. Finally, relying on N.J.S.A. 59:8-9 and Wood v. County of Burlington, 302 N.J. Super. 371 (App. Div. 1997), they argued that plaintiff's application was deficient for failing to explain what extraordinary circumstances prevented him from filing his motion sooner after the ninety-day period expired.

Although oral argument had been requested by all parties,*fn2 the judge decided the motion without oral argument. He issued the October 23, 2009 order allowing the late claim notice without any written or oral statement of reasons. After defendants filed this appeal, the judge issued a written statement of reasons on December 7, 2009. See R. 2:5-1(b). After referencing the extraordinary circumstances standard of N.J.S.A. 59:8-9, the judge said this on that subject:

Here, plaintiff has personally certified that he was suffering from stress relating to his grandson's criminal matter, and due to his damaged reputation as a result of the indictment and charge against him.


The New Jersey Supreme has held that courts should hear these kinds of cases on the merits, and any doubts which may exist should be resolved in favor of the application. S.E.W. Friel Co. v. New Jersey Turnpike Authority, 73 N.J. 107, 122 [(1977)]. Here, while defendant has raised some doubt as to plaintiff's contentions, the Court find that it should err, if at all, to all[ow] this case to proceed on the merits.

Our review is under the abuse of discretion standard. Leidy v. County of Ocean, 398 N.J. Super. 449, 456 (App. Div. 2008). The exercise of discretion, however, is limited to cases in which the claimant's affidavit or certification demonstrates extraordinary circumstances for the delay. Ibid. Judicial findings about the presence of extraordinary circumstances must be expressly made. Ibid.

Canvassing the relevant authorities, we explained in Leidy the significance of the 1994 amendment:

The "extraordinary circumstances" requirement was not part of the original Act, and mere "sufficient reasons" sufficed to warrant relief from the statutory time bar. The "extraordinary circumstances" language was added by amendment in 1994... to raise the bar for the filing of late notice from a fairly permissive standard to a more demanding one. The amendment may have signaled the end to a rule of liberality in filing. Notably, the 1994 amendment does not define what circumstances are to be considered "extraordinary" and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of "extraordinary" on the facts presented. [Id. at 456-57 (citations and quotations omitted).]

Indeed, "the evident legislative purpose of this amendment was the abrogation of the liberal judicial construction of 'sufficient reasons' standing alone." Blank v. City of Elizabeth, 318 N.J. Super. 106, 110 (App. Div.), aff'd as modified, 162 N.J. 150 (1999). It signaled a clear legislative mandate for "a stricter interpretation of the amended act." Zois v. N.J. Sports & Exposition Auth., 286 N.J. Super. 670, 674 (App. Div. 1996).

The judge in this case relied on a single case, Friel, decided in 1977, when the original, liberal version of the statute was in effect. The general proposition for which the judge cited the case, that doubts about whether the applicable statutory standard has been met should be resolved in favor of allowing the case to go forward on the merits, is of little help in resolving the issue in this case. It is not the kind of detailed findings required in these cases. Moreover, the standard was significantly elevated after Friel was decided.

Plaintiff's affidavit falls woefully short of making the kind of detailed showing our case law requires to establish extraordinary circumstances. See, e.g., O'Neill v. City of Newark, 304 N.J. Super. 543, 346-54 (App. Div. 1997) (disallowing the late claim by a seriously injured claimant who suffered a gun shot wound and underwent surgery in the months following his injury and who produced a psychologist's report; finding that report insufficient to establish that the claimant lacked the "mental capacity" to contact an attorney within ninety days; and commenting that the claimant's justifiable preoccupation with getting proper medical attention and treatment was "insufficient to support a finding of extraordinary circumstances without an expert opinion that [he] was incapable of contacting an attorney as any such inability is less than obvious" (emphasis added)); Keller v. County of Somerset, 137 N.J. Super. 1, 7 n.4 (App. Div. 1975) (rejecting under the more liberal pre-amendment statute a generalized claim of debilitating emotional strain without details about its scope and duration and uncorroborated by medical testimony causally relating it to the delay in filing).

Plaintiff's claim that his "emotional state was adversely affected" is nothing more than a vague, conclusory, self-serving declaration. Anyone believing he or she was "falsely [criminally] charged and treated unfairly" would naturally be upset. This is not the kind of "unique" or "unusual" circumstance that rises to the level of "extraordinary circumstances." See O'Neill, supra, 304 N.J. Super. at 551. Nowhere did plaintiff explain how his adversely affected emotional state impacted upon his ability to function. Indeed, it appears that he continued to work, although he was suspended for an unspecified time and precluded from carrying a weapon or working overtime for about one month. This presumably occurred when plaintiff was first charged in January 2008, long before his indictment was dismissed and his cause of action accrued on December 12, 2008.

Further, plaintiff does not contend that he sought or obtained psychological treatment or counseling, and he has produced no expert report to establish that he was "incapable" of timely filing his claim notice. Such proof is necessary in circumstances such as these where plaintiff's claimed inability to timely file is clearly "less than obvious." Indeed, in addition to continuing to work, plaintiff successfully took the required actions to have his indictment dismissed.

The same analysis applies to plaintiff's generalized assertion of continuing stress because of his grandson's ongoing criminal case after plaintiff's indictment was dismissed.

If plaintiff's showing were deemed sufficient to establish extraordinary circumstances, the post-amendment version of N.J.S.A. 59:8-9, intended by the Legislature to raise the bar, would instead constitute a virtually meaningless standard. The judge's statement of reasons evidenced a misperception of the applicable legal standard. Although appellate review of discretionary decisions is generally deferential, when the trial court acts under a misconception of the applicable legal standard, we need not give the usual deference but instead must decide the issue in light of the applicable law in order that a manifest denial of justice be avoided. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966); Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. Div. 1960). This is such a case. We are satisfied that the judge mistakenly exercised his discretion. For the reasons we have stated, application of the controlling legal principles to the facts of this case requires disallowance of a late claim notice.


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