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Geraldine Toscano and Donald Toscano v. Township of Cherry Hill

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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