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Mary Dinardo, Individually, Mary Dinardo As Guardian Ad Litem For v. the City of Jersey City

August 10, 2011

MARY DINARDO, INDIVIDUALLY, MARY DINARDO AS GUARDIAN AD LITEM FOR, GWENDOLYN DINARDO, A MINOR CHILD, MARC ANTHONY DINARDO, II, A MINOR CHILD, AND ELLA DINARDO, A MINOR CHILD, AND MARY DINARDO AS ADMINISTRATRIX OF THE ESTATE OF MARC ANTHONY DINARDO, PLAINTIFF-APPELLANT,
v.
THE CITY OF JERSEY CITY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3406-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 31, 2011

Before Judges C.L. Miniman and LeWinn.

Plaintiff is the widow and administratrix of the estate of Jersey City Police Detective Marc Anthony DiNardo, who was fatally wounded in the line of duty. She appeals from the August 30, 2010 order of the trial court denying her motion to file a late notice of tort claim against defendant pursuant to the Tort Claims Act, N.J.S.A. 59:8-1 to -11 (TCA). We affirm.

On July 16, 2009, Detective DiNardo was shot while attempting to apprehend a suspect in an apartment building in Jersey City. On July 21, 2009, he was declared brain dead and removed from life support. In addition to plaintiff, he is survived by three young children.*fn1

On June 23, 2010, plaintiff moved for leave to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9. She certified that following her husband's death she was in a state of shock and "an extreme state of grief[,]" and was "in a fog and subject to constant unwanted media attention while trying to keep [her] children and [her]self from falling completely apart." Plaintiff documented the frequent therapy sessions she and the children attended, as well as the various emotional and medical problems the children developed as a result of their father's death.

Plaintiff further certified that starting in "late August or early September 2009," she attempted to obtain a copy of the investigative report of her husband's death from various members of the police department; her efforts, however, were unsuccessful. "As time passed[,]" plaintiff "began to have questions as to whether or not [her] husband had been properly trained," and whether proper procedures had been followed and proper equipment issued to the responding officers; she also "began to question the decision to enter the apartment in such an aggressive way."

Plaintiff was unaware that, should she have a tort claim based on any of these concerns, she had to meet a time limit "to give notice of such claim." As of the filing of her motion, plaintiff had still not received the investigative report she sought. She asserted that her requests for that investigative report should be considered as substantial compliance with the TCA's notice requirements.

Defendant certified in opposition that in the months following plaintiff's husband's death, she attended and participated in a number of public events including: "participation in a blood drive" in September 2009; "participation in the Jersey City Heritage Parade, which honored [her husband] in August"; and attendance at charity events in October and December 2009. Based on these activities, defendant asserted that "despite the significant emotional effect of the loss of her husband, . . . plaintiff was not incapacitated or otherwise prevented by her loss, from presenting a written [n]notice of [c]laim, if she had that intention within the statutory period."

Judge Maurice J. Gallipoli heard oral argument on August 27, 2010, and issued a written decision and order denying plaintiff's motion on August 30, 2010. First, the judge found that plaintiff's requests for the police department's investigative report did not constitute substantial compliance with the requirements of N.J.S.A. 59:8-4, which sets forth the required contents of a tort claims notice, including:

a. The name and post office address of the claimant;

b. The post-office address to which the person presenting the claim desires notices to be sent;

c. The date, place and other circumstances of the occurrence or transaction which gave ...


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