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Anthony Konah v. City of Newark


April 29, 2011


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-962-10.

Per curiam.


Telephonically argued November 8, 2010

Before Judges Graves and Waugh.

Defendant City of Newark (the City) appeals from an order granting plaintiff Anthony Konah's motion to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9 upon the City and Officer Ahmad Q. Stuckley of the Newark Police Department, and a subsequent order denying the City's motion for reconsideration. For the reasons that follow, we reverse.

While on patrol on February 5, 2009, Officer Stuckley received a request for backup. Stuckley activated his lights and siren and as he was approaching the intersection of South Orange Avenue and Whitney Street, he observed a pedestrian crossing the street. When Stuckley attempted to avoid the pedestrian, he lost control of his vehicle and collided with several cars that were parked along the curb, including a vehicle that plaintiff was sitting in. According to plaintiff, his "entire body struck the interior of the car" causing injuries to his "neck, back, legs, and arms," and he was "rendered unconscious for several months thereafter."

Plaintiff did not file a notice of claim within ninety days of the February 5, 2009 accident as required by N.J.S.A. 59:8-8. Instead, almost one year later, on January 29, 2010, he sought permission to file a late notice of claim. In a supporting certification, plaintiff stated:

5. Since shortly after the accident, I have been treating with Dr. Goldman of Clifford Medical & Rehabilitation for my severe back, neck and leg pain. The pain has severely restricted my movement. My MRI indicates that I have [a] severe herniated disc which is . . . causing my debilitating lower back pain. I have been subjected to epidural injections to alleviate the pain. I am still under active medical treatment.

6. About two months after the accident, I called several attorneys and they advised me that I had two years to file a suit against the person that hit me.

7. Sometime in October 2009, I consulted with Mr. Ibezim [plaintiff's present attorney] and he indicated that although I had two years to file suit, I should have filed a Notice of Claim with the City of Newark on or before ninety (90) days after the accident. I advised him that none of the attorneys I consulted with told me that. He then told me that he would take the case contingent on his ability to have a Court grant me permission to serve the Notice of Claim out of time.

Plaintiff did not submit any medical records to substantiate his claim that he was "unconscious for several months," and he did not indicate the names of the attorneys he called or when he spoke to them. His entire motion consisted of his two-page certification dated January 29, 2010, and a copy of the motor vehicle accident investigation report.

On February 19, 2010, the court entered an order granting plaintiff's motion "based on a showing of extraordinary circumstances." The City's motion for reconsideration was denied on April 1, 2010. The court's findings in a handwritten portion of the order consisted of the following: "There [are] no grounds for reconsideration. Prior motion had been granted after considering the seriousness of plaintiff's injuries, the fact that he had been rendered unconscious for a period of time, that he had received bad legal advice and there was no showing of prejudice to [the City]." On appeal, the City argues that the court abused its discretion by granting plaintiff's motion because his reasons for missing the notice deadline were not extraordinary.

Under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 14-4 (the Act), a claimant may not pursue a cause of action against a public entity or public employee unless a notice of tort claim is served upon the public entity no "later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-8. "Generally, in the case of tortious conduct resulting in injury, the date of accrual will be the date of the incident on which the negligent act or omission took place." Beauchamp v. Amedio, 164 N.J. 111, 117 (2000). However, the Act also provides an exception to the ninety-day time limit if a claimant can demonstrate "extraordinary circumstances" prevented the filing of a timely notice of claim:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion 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 within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim. [N.J.S.A. 59:8-9.]

Prior to the amendment of the statute in 1994, the court was authorized to allow a late notice of claim beyond the ninety-day period upon a showing of "sufficient reasons" so long as the public entity was not substantially prejudiced. Blank v. City of Elizabeth, 318 N.J. Super. 106, 110 (App. Div.), aff'd as modified, 162 N.J. 150 (1999). In Leidy v. Cnty. of Ocean, 398 N.J. Super. 449 (App. Div. 2008), we explained the significance of the 1994 amendment as follows:

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 (internal quotation marks and citations omitted).]

In the present matter, plaintiff's claim for damages accrued on February 5, 2009, the date he was injured. He was therefore required, under N.J.S.A. 59:8-8, to file his notice of claim with the City within ninety days, that is, May 6, 2009.

In a certification in support of his request to file a late notice of claim, plaintiff explained that he sustained serious injuries in the accident. He also certified he spoke with several attorneys "about two months after the accident," but he was not notified of the ninety-day filing requirement until he consulted with his present attorney "[s]ometime in October 2009."

In our judgment, plaintiff's affidavit fails to satisfy both the "extraordinary circumstances" and the "reasonable time" statutory standards under N.J.S.A. 59:8-9. Based on plaintiff's certification, his injuries were serious, but they did not prevent him from acting to protect his rights during the ninety-day filing period, and it is well settled that ignorance of the law, without more, is not sufficient to allow late filing.

Escalante v. Twp. of Cinnaminson, 283 N.J. Super. 244, 251-52 (App. Div. 1995). Moreover, even if we assume that plaintiff received "bad legal advice" when he was told that he "had two years to file a suit against the person that hit [him]," it would not excuse his late filing. See Bayer v. Twp. of Union, 414 N.J. Super. 238, 259 (App. Div. 2010) ("Although an attorney's negligence may have been sufficient prior to the 1994 amendment to allow a late filing, under the current version of the statute, if such negligence is the sole basis for the late notice, the claim against the public entity will be lost."). Finally, as noted by the City, there has been no showing that plaintiff's motion was filed within a reasonable period of time after the ninety-day period elapsed. See Leidy, supra, 398 N.J. Super. at 461 (finding that an "absence of such explanation or proof of due diligence in the record precludes plaintiff from satisfying N.J.S.A. 59:8-9's other requirement that a claimant file a late notice of tort claim within 'a reasonable time'").

In view of the foregoing, we find that the motion court mistakenly exercised its discretion when it granted plaintiff's motion to file a late notice of claim and denied the City's motion for reconsideration. Accordingly, the orders entered on February 19, 2010 and April 1, 2010 are reversed.



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