On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7695-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...