On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3015-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Koblitz.
Plaintiff Jaime Weaver*fn1 appeals from the denial of her motion for leave to file a late notice of tort claim against defendant New Jersey Transit Corporation (NJT)*fn2 under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 14-4. With the denial of her motion, plaintiff lost the right to sue NJT for injuries she sustained while a passenger in a NJT bus. We agree with the motion judge's determination that plaintiff failed to demonstrate the "extraordinary circumstances" required by N.J.S.A. 59:8-9 when a plaintiff seeks to file a late notice of tort claim under the Act. We affirm.
On November 24, 2008, plaintiff was riding in a bus owned by NJT, and driven by its employee, defendant Timothy Stackhouse, when the bus rear-ended the car in front of it, allegedly causing plaintiff to lurch forward and injure her knee. Rather than immediately filing the notice of tort claim, which N.J.S.A. 59:8-8 states must be filed no later than the ninetieth day following accrual of the cause of action, plaintiff's attorney first wrote to the Hamilton Township Police Department to obtain a copy of the police report. He apparently did not receive it until after January 30, 2009.
On February 10, 2009, within the ninety-day period required by N.J.S.A. 59:8-8, plaintiff sent her notice of tort claim to the State Department of Treasury, Bureau of Risk Management (Treasury). On February 27, 2009, five days after the ninety-day deadline had expired on February 22, Treasury wrote to plaintiff, indicating that NJT was "not the 'State,' meaning the State of New Jersey, its departments or agencies (N.J.S.A. 59:1-3)." Treasury's February 27, 2009 letter contained the following statement:
New Jersey Transit Corporation is a public entity, which can sue and be sued. It is separate and distinct from the State of New Jersey.
In our opinion, notice to the State of New Jersey or any State department is not notice to New Jersey Transit Corporation or any of its agencies or subdivisions; and should not be construed to waive any of their rights under the New Jersey Tort Claims Act. Any further communication on your part should be directed to:
New Jersey Transit Corporation 110 Plaza East Newark, NJ 07105 Attn: Claims Department Since your claim does not involve the State of New Jersey or any of its agencies, this office cannot entertain your claim.
For reasons not explained by the record, plaintiff waited nearly five more months, until July 20, 2009, to serve her notice of tort claim on NJT. By letter dated July 30, 2009, NJT Senior Investigator D.A. Bentley notified plaintiff that because more than ninety days had elapsed from the accrual of her cause of action on November 24, 2008, NJT refused to accept her notice of claim. Bentley's letter advised plaintiff that the applicable statute entitled her to file a motion with the Superior Court seeking permission to file a late claim. Bentley's letter closed with a warning that "[f]ailure to immediately seek the court's permission may prevent the recovery of damages against New Jersey Transit."
After receiving Bentley's letter in early August, plaintiff waited an additional four months, until November 24, 2009, before filing her motion with the Law Division for permission to file a late notice of tort claim against NJT. In support of that motion, plaintiff's attorney certified that in sending the notice to Treasury, he had relied on the 2009 New Jersey Lawyers Diary and Manual, which lists NJT under "State Departments and Agencies," and indicates that the Office of Attorney General is its "counsel."
Judge Hurd denied plaintiff's motion, reasoning that plaintiff had not presented the extraordinary circumstances required by N.J.S.A. 59:8-9 that would excuse the late filing ...