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Geraldine Toscano and Donald Toscano v. Township of Cherry Hill

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 26, 2011

GERALDINE TOSCANO AND DONALD TOSCANO, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF CHERRY HILL, COUNTY OF CAMDEN, STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1599-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 15, 2011

Before Judges Carchman and Waugh.

Plaintiff Geraldine Toscano appeals the denial of her application for leave to file a late notice of claim against defendants County of Camden and State of New Jersey. We reverse and remand for further proceedings consistent with this opinion.

I.

We discern the following facts and procedural history from the record on appeal.

Toscano alleges that she was injured when she fell on a "broken and decrepit portion of the sidewalk" located on Kings Highway in the Township of Cherry Hill. She fell on September 15, 2009, and filed a notice of tort claim on October 28, 2009. Because she believed that the sidewalk was owned and maintained by Cherry Hill, she only named Cherry Hill in the notice.

After filing the notice, Toscano telephoned Cherry Hill to inquire if she needed to do anything further. Her call was never returned. On November 10, 2009, Cherry Hill's claims administrator, Scibal Associates, Inc. (Scibal), sent Toscano a letter acknowledging receipt of the notice. Toscano telephoned Scibal on December 18, 2009, and February 18, 2010, to ascertain whether there was anything more she needed to do. Scibal did not respond to either inquiry.

On February 22, 2010, Scibal wrote a letter to Camden County and the State, notifying them of the claim and enclosing a copy of the notice of claim. The letter asserted that the sidewalk at issue was not Cherry Hill's responsibility, but was instead on or adjacent to land controlled by Camden County and the State. A copy of the letter was sent to Toscano.

Toscano retained counsel on March 10, 2010. Suit was filed against Cherry Hill, Camden County, and the State on March 26, 2010.*fn1 Toscano filed a motion for leave to file a late claim against Camden County and the State on April 7, 2010, requesting oral argument if the motion were to be opposed. Camden County and the State opposed Toscano's motion, and also filed cross- motions seeking dismissal of the complaint as to them for failure to file a timely notice of claim.

The motion judge decided the motions on the papers on May 7, 2010, despite the requirement of Rule 1:6-2(d) that oral arguments be granted on such motions. He denied Toscano's motion and granted the cross-motions for dismissal. The judge's oral opinion set forth the arguments of the parties, but did not articulate the reasons for his conclusion that Toscano "failed to establish the existence of extraordinary circumstances."

Toscano filed a motion for reconsideration on May 27, 2010.

The motion was opposed by Camden County and the State. Although Toscano again requested oral argument, the judge again decided the motion on the papers. After setting forth the arguments of the parties and the law with respect to motions for reconsideration, the judge simply concluded that Toscano "had not demonstrated that the [c]court overlooked facts or erred in making its judgment."

This appeal followed.

II.

On appeal, Toscano argues that the motion judge abused his discretion in denying her application for leave to file a late notice of claim. Camden County and the State argue that the judge properly exercised his discretion.

The substantive legal standards applicable in this case were discussed at length in our opinion in Leidy v. County of Ocean, 398 N.J. Super. 449, 455-57 (App. Div. 2008):

Claims against public entities are governed by the Tort Claims Act. N.J.S.A. 59:8-1 to -11. A party has ninety days from the accrual of his claim to file notice of a claim against a public entity. N.J.S.A. 59:8-8(a). This notice requirement was created:

(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet.

There is an exception to the ninety-day notice rule. N.J.S.A. 59:8-9 provides:

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 (emphasis added).]

Thus, although the decision to grant a plaintiff permission to file late notice of a tort claim "'is a matter left to the sound discretion of the trial court,'" R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340 (App. Div. 2006) (quoting Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 403 (App. Div. 1996), overruled on other grounds by Beauchamp [v. Amedio, 164 N.J. 111, 120 (2000))], this "discretion is limited to cases in which the claimant's affidavit shows 'sufficient reasons constituting extraordinary circumstances' for the delay and there is no 'substantial[] prejudice[]' to the public entity or employee." Ibid. (quoting Ohlweiler, supra, 290 N.J. Super. at 403) (alterations in original). Findings about "the lack of 'substantial prejudice' and the presence of 'extraordinary circumstances' . . . . must be expressly made in order to comply with the legislative mandate and to justify the entry of an order permitting the filing of a late notice of claim under N.J.S.A. 59:8-9." Allen v. Krause, 306 N.J. Super. 448, 455-56 (App. Div. 1997).

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, L. 1994, c. 49, § 5, in order to raise the bar for the filing of late notice from a fairly permissive standard to a more demanding one.

[T]he 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.

[(Citations and internal quotation marks omitted).]

There is no question that, as to Camden County and the State, Toscano did not serve a notice of tort claim within the ninety-day period required by N.J.S.A. 59:8-8(a). The ninety- day period expired on December 12, 2009. The record reflects that Camden County and the State did not receive a copy of Toscano's notice to Cherry Hill until shortly after Scibal sent them the February 22, 2010 letter enclosing the notice. The question before us is whether the motion judge abused the discretion accorded him by N.J.S.A. 59:8-9 in denying leave to file a late notice. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 136 (1988).

In Mendez v. South Jersey Transportation Authority, 416 N.J. Super. 525, 533 (App. Div. 2010), we observed that:

[A] reviewing court is to "examine more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application." Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (quoting Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 135 (1994)) (internal quotations omitted).

We also observed that:

In determining whether extraordinary circumstances exist, "a judge must consider the collective impact of the circumstances offered as reasons for the delay." R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006).

We have also held that where discovering the identity of a responsible party is not thwarted by the original defendants, the issue becomes "whether plaintiff was diligent and made reasonable efforts to discover the identity of the true tortfeasor." Leidy v. County of Ocean, 398 N.J. Super. 449, 461 (App. Div. 2008). A key factor in determining whether a plaintiff acted with diligence in pursuing his or her claim is the promptness in contacting and retaining counsel to pursue plaintiff's rights. Lowe, supra, 158 N.J. at 626-30.

[Mendez, supra, 416 N.J. Super. at 533.]

Here, the record reflects that Toscano made the arguably reasonable assumption that the sidewalk where she fell was owned by Cherry Hill, and filed a notice of claim less than forty-five days after the accident. She attempted to contact Cherry Hill to ascertain whether she should take further action, but received no response. On November 10, 2009, within the ninety day period, Scibal advised Toscano that it had received the claim and asked her to provide medical releases and the identities of her treating physicians, but did not, at that point, question Cherry Hill's responsibility for the site of the accident.

Having been informed by the November 10 letter that all contact should be through Scibal, Toscano continued her efforts to ascertain whether she needed to take any further action by contacting Scibal twice, once on December 18 and again on February 18, 2010. Although she received no direct response to her inquiry, it would appear that the February 18 contact prompted Scibal to send out its February 22 letter, which asserted that Camden County and the State were responsible for the sidewalk. After receiving that letter, Toscano retained counsel on March 10 and commenced legal proceedings shortly thereafter.

Our review of the record, as outlined above, suggests that Toscano exercised a palpable degree of diligence and that she may have been led into believing that she had sent the claim to the right public entity by Scibal's letter acknowledging the claim and asking for medical information. See Leidy, supra, 398 N.J. Super. at 458 (discussing the requirement that the identity of the correct party be "obscured" as part of a showing of "extraordinary circumstances").*fn2

Our disposition of this appeal is hampered by the fact that the motion judge did not offer any explanation of the reasoning behind his exercise of discretion to deny leave to file a late claim. In the absence of such an explanation, we cannot determine whether there was an abuse of discretion. This is especially problematic here in that we must review the judge's exercise of discretion "more carefully" because permission to file a late claim was denied. Mendez, supra, 416 N.J. Super. at 533.

Consequently, we reverse the orders on appeal and remand to the Law Division for further consideration of Toscano's application for leave to file a late claim. We direct the judge assigned to hold oral argument on the motions, Rule 1:6-2(d), and to hold a plenary hearing to the extent deemed necessary to resolve any disputed issues of fact. The judge should also comply with Rule 1:7-4(a) with respect to findings of fact and conclusions of law. We do not retain jurisdiction. Reversed and remanded.


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