On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4578-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Baxter.
Defendant, the Union City Board of Education (Board), appeals from a September 16, 2010 Law Division order granting the motion of plaintiff, Sandra Potosi, for permission to file a late notice of tort claim under the Tort Claims Act (the Act). We agree with the Board's argument that a reasonable investigation by plaintiff would have disclosed that the grammar school at which plaintiff was injured was owned and operated by the Board, which is a separate entity from the City of Union City; and therefore plaintiff's failure to serve the required notice on the Board in a timely manner did not constitute the extraordinary circumstances required for the relaxation of the ninety-day time frame for the service of notice under the Act. We reverse.
On December 22, 2009, plaintiff slipped and fell in a stairway at the Jefferson Elementary School in Union City. The school nurse completed a written report noting the location of plaintiff's fall, how the accident occurred, the injuries plaintiff claimed and the name of the only witness, plaintiff's six year-old son. The bottom of the form stated:
Kathy Guareno Union City Board of Education "Insurance Department"
On January 22, 2010, plaintiff's attorney sent a notice of tort claim to the Clerk of the City of Union City (City) by certified mail, which notice was received by the City Clerk on January 25, 2010. Nearly seven months later, on August 16, 2010, the City's third-party claims administrator, INSERVCO Insurance Services Co., Inc., advised plaintiff's attorney that the "City of Union City does not own, maintain and or control the Jefferson Elementary School. . . . [T]he City of Union City and the Union City Board of Education are two separate and distinct entities. As such, your claim has been misdirected."
Two days after receiving the letter from INSERVCO, plaintiff filed the motion that is the subject of this appeal, requesting leave to file a late notice of claim against the Board. At oral argument, plaintiff maintained that nothing about the name "Board of Education" would have suggested that the Board was a separate entity, distinct from the City. She maintained that her "confusion[,] or . . . reasonable belief that the . . . Board of Education . . . belonged to the City of Union City, was reasonable." The Board urged the judge to deny the motion, contending that the Board was a separate entity, and that any reasonable investigation undertaken by plaintiff would have so revealed.
At the conclusion of oral argument, the judge granted plaintiff's motion for leave to file a late notice of claim under the Act. He stated:
In my opinion, the motion should be granted. I will concede that this is a close case. However, our case law suggests any ambiguity should be resolved in favor of granting such a motion. The plaintiff filed a timely notice of claim on the incorrect defendant[,] [a]nd upon notification that they had the incorrect defendant, quickly filed this motion. I don't know why the City of Union City waited from January of 2010 to August 2010 to notify the plaintiff. However, as soon as the plaintiff's attorney became aware of this, they filed this motion.
The case is very similar to the Blank [v. City of Elizabeth, 162 N.J. 150 (1999)] case where the plaintiff's negligence and failure to investigate were responsible for the incorrect notice. The defendant is not responsible for the late notice. However, as an incident report was also filed by the nurse, it doesn't seem that the defendant would ...