On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3192-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Ostrer.
Plaintiff Frank Marenbach appeals the trial court's denial of his motion for leave to file a late tort claims notice upon defendant, the County of Atlantic ("County"). We affirm.
According to his submissions, plaintiff, a vacationer from Pennsylvania, tripped and fell on the pavement on Ventnor Avenue in Margate on July 4, 2009. The fall apparently occurred on the east side of Ventnor Avenue at its intersection with Jefferson Street, a short distance from the curb. Plaintiff contends that the street location was in a dangerous condition. As a result of his fall, plaintiff injured his ankle and received medical treatment.
Plaintiff retained an attorney licensed in Pennsylvania to pursue recovery for his personal injuries. On September 30, 2009, the Pennsylvania attorney served a notice of tort claim upon the City of Margate ("City"), mistakenly assuming that the City was responsible for maintaining Ventnor Avenue. The notice was served upon the City within the ninety days prescribed by N.J.S.A. 59:8-8. The only other public entity that plaintiff apparently served with a notice was the State Department of Transportation.
The City's claims administrator, Scibal Associates, Inc. ("Scibal"), investigated plaintiff's claim and denied liability, advising him that he had served the wrong public entity. In a letter to plaintiff's Pennsylvania attorney dated January 14, 2010, Scibal advised him that the City has "no ownership, control and/or responsibility" over Ventnor Avenue. The letter further stated that the public entity "responsible for Ventnor Avenue is the County of Atlantic." In fact, Ventnor Avenue is officially designated as Atlantic County Road 629.
Plaintiff ultimately filed a tort claims notice with Atlantic County on February 2, 2010, almost seven months after his accident. The County denied liability because the notice was untimely. Plaintiff then filed a motion in the Law Division seeking leave to file a late notice, arguing that extraordinary circumstances warranted such relief.
Plaintiff supported his request with an affidavit from his Pennsylvania attorney. The attorney asserted that he was personally familiar with Ventnor Avenue where it passes through Margate, noting that he owns property nearby in Atlantic City and has driven on Ventnor Avenue on numerous occasions. Despite his asserted familiarity with the road, the attorney claimed that he had never previously observed signs indicating that Ventnor Avenue is a County highway. He alleged that he had "no reasonable means of knowing," during the statutory ninety-day notice period, that Ventnor Avenue is a County highway.
The County opposed plaintiff's motion and his contention of extraordinary circumstances. It reiterated that Ventnor Avenue is a County road, and refuted the contention of plaintiff's Pennsylvania attorney that the street is not clearly marked as such. As corroboration, the County submitted photographs of standard, pentagonal-shaped signs posted in Margate, indicating "Atlantic County 629." According to the County's submission, such a sign is posted on one of the main thoroughfares into and out of the City, as well as at the intersection of Jasper and Ventnor Avenue eastbound.
The County also argued that it would be substantially prejudiced if the court granted plaintiff leave to file a late claim concerning his July 2009 accident. It noted that the exact location of plaintiff's fall, and the specific nature of the alleged dangerous condition in the roadway, were still unclear more than a year after the accident. In the meantime, the road's condition could have been altered by weather, repairs, or maintenance activities.
Upon considering these arguments and submissions, Judge Nelson Johnson denied plaintiff's motion. In his oral opinion, the judge concluded that plaintiff "clearly was chargeable with knowing that this [roadway] was a County highway, failed to bring the notice before the County within the [statutorily-required] 90 days, [and] failed to move [to file a late claim] until many months afterwards[.]"
On appeal, plaintiff contends that the judge erred in denying his application and in not finding extraordinary circumstances ...