On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8010-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Messano.
Defendant City of Newark (Newark) appeals from the October 29, 2010 order of the Law Division that granted plaintiff, Luis Vega, leave to file a late notice of claim under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the TCA). We have considered the arguments raised in light of the record and applicable legal standards. We affirm.*fn1
Plaintiff was seriously injured in an automobile accident on Routes 1 & 9 in Newark during the early morning hours of February 6, 2010, when the car he was driving struck a vehicle driven by Rolondo N. Ibarra-Frere. Ibarra-Frere, who was subsequently charged with driving while intoxicated, had stopped his car in the left lane of travel without any lights or warning signals. Plaintiff had to be extracted from his car and suffered traumatic brain injury and fractures of his left arm that required repeated surgeries. He remained in a coma for some time and required significant post-accident rehabilitation.
Plaintiff's passenger, Jeffrey Lopez, was killed in the accident, and, as a result, the Essex County Prosecutor's Office commenced a criminal investigation.
Plaintiff did not serve Newark with a notice of tort claim within the time required by the TCA. See N.J.S.A. 59:8-8 ("A claim relating to a cause of action for death or injury or damage to person . . . shall be presented . . . not later than the ninetieth day after accrual of the cause of action."). On September 23, 2010, plaintiff filed a motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9.
In support of the motion, plaintiff's counsel certified that approximately one month after the accident, he was contacted by plaintiff's cousin, Edna Pavan, who resided in Florida but who was in New Jersey visiting plaintiff. Plaintiff was still in a coma, and Pavan asked counsel to obtain a copy of the police report and inquire as to insurance coverage on the Ibarra-Frere vehicle. On April 13, 2010, counsel sent a letter of representation to State Farm Insurance, the carrier covering the Ibarra-Frere car.
In attempting to gather information from the police department, counsel was directed to the Prosecutor's Office and contacted the assistant prosecutor in charge of the investigation. He was advised that because the matter was to be presented to the Essex County grand jury, no information or reports would be released. Counsel was able to obtain, however, a redacted copy of the original police report listing only the names and addresses of the drivers and owners of the vehicles.
On May 12, counsel met with plaintiff, his mother, and a Spanish translator at the JFK Hartwyck Rehabilitation Center in Edison. Plaintiff was still unable to walk, his speech was impaired and his memory was limited. Counsel was satisfied, however, that plaintiff was sufficiently capable of retaining him, and, a retainer agreement was executed that day.
Counsel certified that he continued to conduct an investigation of the
accident. He obtained a copy of a newspaper article that appeared in
the Star Ledger on February 6 from plaintiff's relatives.*fn2
The article revealed that a witness, Nelson Letra, had seen
the Ibarra-Frere vehicle "'weav[e] all over the road'" and stop
suddenly in the left lane. Letra called 9-1-1 at approximately 2:55
a.m. to report his observations, and, when no police responded to the
scene, Letra claimed to have made a second call to 9-1-1 four minutes
later. There was no police response prior to plaintiff's accident.
Counsel certified that he submitted a document request to Newark to obtain the 9-1-1 call logs and verify Letra's comments to the press, but he was unable to obtain them due to the prosecutor's investigation. He served similar information requests upon the State Police and the Port Authority Police and had not obtained any response from either agency.
Lastly, counsel cited our recent decision in Massachi v. City of Newark Police Dep't, 415 N.J. Super. 518 (App. Div. 2010) (Massachi II). He contended that our decision held "there is no longer an absolute immunity for 911 dispatcher[s] pursuant to N.J.S.A. 52:17C-10." In short, "[b]ased upon the unsubstantiated witness statements of Mr. Letra and the newly decided Massachi decision," counsel ...