The opinion of the court was delivered by: Wolfson, United States District Judge:
Presently before the Court is a Motion for Summary Judgment by Defendants Sylviana Barsoum, M.D. ("Barsoum"), Renu Chhokra, M.D. ("Chhokra") and Arleen Lamba, M.D. ("Lamba") (collectively referred to as "Defendants") to Dismiss Plaintiff's Complaint for Failure to Serve a Notice of Claim, as well as a Motion for Leave to File a Late Notice of Claim by Plaintiff Daniel Tripo ("Plaintiff" or "Tripo). The instant motions arise out of a medical malpractice suit instituted by Plaintiff for injuries allegedly suffered while Plaintiff was undergoing surgery on January 12, 2010. Specifically, Plaintiff contends that Defendants were careless, reckless and negligent in administering anesthesia, and that Plaintiff suffered severe injuries and emotional distress as a result. For the reasons that follow, the Court finds that Plaintiff's suit is barred by the provisions of the New Jersey Tort Claims Act, N.J.S.A. § 59:1-1 et seq.*fn1
On or around January 6, 2010, Plaintiff suffered severe injuries as a result of a car accident. Following the accident, Plaintiff was admitted to Robert Wood Johnson Medical Center ("RWJ") where he remained until January 14, 2010. Upon his admission to RWJ on January 6, Plaintiff's wife signed a form consenting to medical treatment on behalf of Plaintiff which provides, in relevant part:
I understand that the Robert Wood Johnson University Hospital . . . is affiliated with the State of New Jersey, University of Medicine and Dentistry of New Jersey, the State's university of health sciences. I understand that some attending physicians who may provide my care and treatment at RWJUH may include physicians who are clinical faculty members employed by the State of New Jersey - UMDNJ. These physicians also wear nametags that clearly identify their association with the State of New Jersey -- UMDNJ. I understand that I may also be cared for and treated by medical fellows, residents, and students under the supervision of attending physicians, and that, in many instances, these fellows, residents and students are employees of the State of New Jersey -- UMDNJ.
On January 12, 2010, Plaintiff was diagnosed with a fractured sternum and underwent surgery under general anesthesia. The anesthesia was administered by Defendants Barsoum, Chhokra and Lamba, each of whom was employed by University of Medicine and Dentistry of New Jersey ("UMDNJ") at UMDNJ-RWJ Medical School in New Brunswick, New Jersey. In the performance of their duties, Defendants aver that they were wearing identification cards stating in red letters "UMDNJ" and "University of Medicine and Dentistry of New Jersey." Defs' Br. ¶ 9. Plaintiff alleges that during the surgery he "was awake but paralyzed and was aware of the surgery which was terrifying and painful." Pl's Aff. ¶ 2. Indeed, immediately following the surgery, Plaintiff "reported to the medical staff that [he] was awake during surgery and felt pain related thereto." Id. Moreover, it appears that Plaintiff discussed his awareness during surgery with Dr. Barsoum. Specifically, Dr. Barsoum reported that he told Plaintiff that the anesthesia amount Plaintiff received "should have been adequate" and that in the future Plaintiff should "inform all anesth[esia] providers of recall episode as patient may need higher anesth[esia] doses." Lenza Dec., Ex. C.
On or around March 2, 2010, Plaintiff retained Amabile & Erman, P.C., to investigate a potential medical malpractice case against RWJ and the medical personnel who provided anesthesia during his surgery. Pl's Aff. ¶ 4. On or around March 3, 2010, counsel for Plaintiff sent a letter to RWJ requesting Plaintiff's medical records. Plaintiff received no response. On or around May 19, 2010, counsel for Plaintiff again requested Plaintiff's medical records. On October 28, 2010, RWJ provided Plaintiff's counsel with the records requested. A copy of these records was received by Plaintiff's counsel on November 1, 2010. Lenza Dec. ¶ 12.
Subsequently, on April 11, 2011, approximately 16 months after the surgery, Plaintiff filed the instant Complaint against Defendants and RWJ in the United States District Court for the District of New Jersey. Defendants filed an answer to Plaintiff's Complaint on June 9, 2011 asserting, in relevant part, that Plaintiff's recovery is barred by the provisions of the New Jersey Tort Claims Act, N.J.S.A. § 59:1-1. Thereafter, on August 5, 2011, Defendants filed the instant Motion for Summary Judgment requesting dismissal of the Complaint for Plaintiff's failure to serve a timely notice of claim pursuant to N.J.S.A. § 59:8-8. On August 9, 2011, Plaintiff filed a Notice of Claim with the Office of the Attorney General and the New Jersey Department of the Treasury. Lenza Aff., Ex. D. Subsequently, on August 11, 2011, Plaintiff filed a Motion for Leave to File a Late Notice of Claim.
"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56©. For an issue to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). For a fact to be material, it must have the ability to "affect the outcome of the suit under governing law." Kaucher, 455 F.3d at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Moreover, the non-moving party must present "more than a scintilla of evidence showing that there is a genuine issue for trial." Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). Indeed, the plain language of Rule 56© mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322.
Moreover, in deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the fact finder. ...