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Mary Londono v. City of Elizabeth


January 23, 2012


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-000041-08.

Per curiam.


Submitted August 29, 2011 -

Before Judges Alvarez and Nugent.

Plaintiff Mary Londono appeals from the November 12, 2010 Law Division order granting summary judgment to defendant Roman A. Montes and dismissing plaintiff's intentional tort claims because she did not file notice as required by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-8, and failed to comply with the statute of limitations. We affirm.

Plaintiff began working for the City of Elizabeth (the City) as a municipal court clerk in 2000 and was promoted to the position of senior clerk in 2004. According to her complaint and deposition testimony, between 2003 and 2006 she was harassed by defendant Montes, the municipal court judge. The factual underpinnings of plaintiff's claims are concisely summarized in our opinion concerning plaintiff's first appeal, Londono v. City of Elizabeth, No. A-1125-09 (App. Div. September 17, 2010) (slip op. at 2):

Londono asserts that on one occasion she was punching in her time card to clock in to work when Montes struck her buttocks with some papers he had in his hand. On another occasion, Montes threw rubber bands at her buttocks while she was discussing a case with the court administrator. On a third occasion, Montes grabbed scraps of paper from Londono's pant leg. She also claimed he spoke to her in an unsolicited, derogatory manner about her choice of men and about the style of underwear she wore. Further, when Londono was interviewed for the position of deputy court administrator, Montes questioned whether others would be able to understand her because of her accent.

During plaintiff's deposition she was questioned about the dates of the three incidents involving physical contact. Plaintiff testified that the first incident occurred when she was punching her time card in 2003 shortly after her transfer from the night shift to the morning shift.*fn1 The second incident involving the rubber bands occurred in 2005*fn2 and the third incident involving the shredded paper took place several months later.

On October 12, 2007, plaintiff filed a six-count complaint against the City and Montes, alleging causes of action under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the TCA. Plaintiff alleged in the first five counts sexual harassment, national origin harassment, and discrimination under the LAD. The sixth count alleged, "the action of defendant, Montes, constitutes an intentional tort."

Montes filed an answer in which he denied plaintiff's allegations and pleaded, among other affirmative defenses, three defenses under the TCA:

5. Plaintiff's claim is barred by plaintiff's failure to comply with the notice provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et. seq. and 59:8-1 et. seq.

6. Plaintiff's claim against this defendant is barred by the immunity provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et. seq. and 59:3-1 et. seq.

7. Plaintiff's claim is barred or limited by the limitations contained in the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et. seq. and 59:9-1 et. seq.

Following discovery that included the depositions of plaintiff and Montes, the trial court granted defendants' summary judgment motions and dismissed plaintiff's complaint with prejudice. Plaintiff neither opposed nor appealed the dismissal of her claims against the City, but appealed the dismissal of her claims against Montes. In an unpublished opinion, we affirmed summary judgment on plaintiff's LAD claims but reversed as to the intentional tort claims. Londono, supra, No. A-1125-09 (slip op. at 4).

After remand, Montes filed for summary judgment, arguing that plaintiff's intentional tort claims should be dismissed because plaintiff never filed a notice of claim as required by N.J.S.A. 59:8-8 and because the claims were barred by the statute of limitations. The trial court granted the motion, ruling that of the three incidents that constituted unwanted touchings, the first was barred by the TCA's statute of limitations and the "general" statute of limitations, see N.J.S.A. 59:8-8(b) and N.J.S.A. 2A:14-2, and the second and third were barred by the applicable statute of limitations and the notice requirements of the TCA. This appeal followed.

We review the trial judge's summary judgment order de novo, using the standard set forth in Brill v. Guardian Life Insurance Corporation of America, 142 N.J. 520, 540 (1995). Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That standard requires that the court determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540.

Claims against New Jersey public entities and employees are circumscribed by the TCA, which explicitly provides "that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein." N.J.S.A. 59:1-2. In addition to provisions concerning liability and immunity of public entities and employees, the TCA includes conditions of suit and judgment. One condition is that "[n]o action shall be brought against a public entity or public employee . . . unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter." N.J.S.A. 59:8-3. The TCA requires that a claim form (TCA Notice) be completed and properly filed with the public entity. See N.J.S.A. 59:8-7.

A TCA Notice for claims involving death, injury, or damage to person or property must "be presented . . . not later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-8. Claimants are "forever barred from recovering against a public entity or public employee" if they "fail[] to file [a] claim with the public entity within 90 days of accrual of [the] claim except as otherwise provided in section 59:8-9[.]" Ibid.

The exception in N.J.S.A. 59:8-9 provides that a claimant "may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of [the] claim . . . ." A trial court has no jurisdiction to extend the filing period beyond the one-year outer limit of N.J.S.A. 59:8-9. Iaconianni v. N.J. Tpk. Auth., 236 N.J. Super. 294, 298 (App. Div. 1989), certif. denied, 121 N.J. 592 (1990).

The TCA notice provisions do not apply to injuries arising from violations of either the LAD or to a violation of federal rights protected by the Civil Rights Act, 42 U.S.C.A. § 1983 (2003). Fuchilla v. Layman, 109 N.J. 319, 320-21, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51, (1988). The TCA notice provisions do, however, apply to common law intentional tort claims. Velez v. City of Jersey City, 180 N.J. 284, 286 (2004).*fn3

Although a plaintiff may apply to the Superior Court for relief from the ninety-day notice requirement of N.J.S.A. 59:8-8, "in no event may any suit against a public entity or a public employee arising under [the TCA] be filed later than two years from the time of the accrual of the claim." N.J.S.A. 59:8-9; see also N.J.S.A. 59:8-8(b) (providing that claims against public entities or employees are barred if "[t]wo years have elapsed since the accrual of the claim"). Separate and apart from the TCA, lawsuits "for an injury to the person caused by the wrongful act, neglect or default of any person . . . shall be commenced within 2 years next after the cause of any such action shall have accrued[.]" N.J.S.A. 2A:14-2(a).

It is undisputed that plaintiff never filed a TCA Notice. Plaintiff argues that she substantially complied with the TCA notice requirements and Montes is equitably estopped from asserting his TCA defenses. We disagree.

In her argument that she substantially complied with the TCA, plaintiff emphasizes that the "City Mayor was informed on or about August 15, 2006 that [plaintiff] was being sexually harassed by defendant Montes"; and that her attorney detailed in an August 22, 2006 letter to the City's attorney, the factual basis for her complaint. Those communications do not comply with the TCA notice requirements and do not constitute an effort or attempt to comply with them. Plaintiff cannot successfully assert that she substantially complied with those requirements when she made no attempt to file a TCA Notice. See Harry A. Margolis & Robert Novack, Claims Against Public Entities, comment to N.J.S.A. 59:8-3 (2011).

Plaintiff's argument that equitable estoppel applies to bar Montes's affirmative defenses is also unpersuasive.

Equitable estoppel "is conduct, either express or implied, which reasonably misleads another to his prejudice so that a repudiation of such conduct would be unjust in the eyes of the law." Dambro v. Union County Park Comm'n, 130 N.J. Super. 450, 457 (Law Div. 1974). The doctrine is "rarely invoked against a governmental entity . . . . Nonetheless equitable considerations are relevant to assessing governmental conduct, and may be invoked to prevent manifest injustice." Cnty. of Morris v. Fauver, 153 N.J. 80, 104 (1998) (quoting O'Malley v. Dep't of Energy, 109 N.J. 309, 316 (1987)).

In rare cases, courts have invoked equitable estoppel to relax the requirements of the Tort Claims Act when the defendant has misled the plaintiff about a material issue. [McDade v. Siazon, _ N.J. _ , _ (2011) (slip op. at 20).]

Plaintiff relies primarily on Hill v. Middletown Board of Education, 183 N.J. Super. 36 (App. Div.), certif. denied, 91 N.J. 233 (1982), and Marley v. Borough of Palmyra, 193 N.J. Super. 271 (Law Div. 1983). The facts in Hill are distinguishable from those in this action. In Hill, the plaintiff was fourteen years old when she fell and injured her right knee during her junior high school's basketball team practice. Supra, 183 N.J. Super. at 38. She was seventeen when her guardian commenced an action against the school. Ibid. The school did not specifically plead as an affirmative defense that plaintiffs failed to comply with the TCA's notice provisions. Id. at 41-42. Additionally, the time to file a TCA Notice had not expired when plaintiffs commenced the personal injury action. The defendant, however, waited over two and one-half years after the complaint was filed before it filed for summary judgment based on the plaintiffs' failure to comply with the TCA notice provisions. Id. at 41.

In the interim, defendant obtained complete discovery in the form of answers to interrogatories, depositions and a physical examination. Indeed, prior to the expiration of one year following the date of [the plaintiff's] 18th birthday, plaintiffs answered defendant's interrogatories and defendant obtained an order compelling more specific answers to its interrogatories. [Ibid.]

Based on those circumstances, we held that the defendant's conduct created the objective impression that it was waiving the TCA notice requirements, "especially in view of its failure to properly plead [that] defense." Ibid. We also emphasized that if defendant had specifically pleaded lack of notice as a defense or acted promptly in bringing its motion for dismissal, plaintiffs would have had ample opportunity in which to apply to the trial judge for permission to file late notice of claim since [the plaintiff] did not turn 19 years of age until . . . 14 months after the complaint was filed. [Id. at 42.]

Here, unlike the defendant in Hill, Montes pleaded that "plaintiff's claim is barred by [her] failure to comply with the notice provisions of the [TCA]" and also separately pleaded both the TCA and general statutes of limitations. Moreover, the parties had taken discovery based upon plaintiff's LAD allegations. In light of the TCA defenses raised by Montes in his answer and the parties' need to take discovery on a cause of action other than plaintiff' intentional tort claims, the doctrine of equitable estoppel does not bar Montes's defenses.

Plaintiff's reliance on Marley is also misplaced. There, the defendant's failure to raise the TCA notice provision for approximately fifteen months after the complaint was filed "created the objective impression that it was waiving the notice requirement." Marley, supra, 193 N.J. Super. at 299-300. "Early notice would have permitted [the plaintiff] to supply the omission by giving notice within ninety days under N.J.S.A. 59:8-8(a) or within one year, if permitted by the court under N.J.S.A. 59:8-9." Id. at 300. See also Anske v. Borough of Palisades Park, 139 N.J. Super. 342, 349-350 (App. Div. 1976) (holding that defendant was estopped from asserting the TCA notice provisions because it waited more than a year and a month after the accident to amend its answer to assert the TCA defenses, and had it timely filed the defenses, plaintiff would have had over five months within which to apply to the court to file a late TCA claim notice).

Unlike the plaintiff in Marley, plaintiff here could not have delayed filing a motion for leave to file late notice in reliance upon Montes's failure to specifically allege the TCA notice provisions as affirmative defenses; Montes pleaded the TCA defenses. It also appears that plaintiff waited more than one year from the last "wrongful touching" before filing her complaint. By then it was too late to seek leave of court to file a late TCA Notice.

Plaintiff next argues that Montes should not be permitted to make repetitive summary judgment motions. Plaintiff relies upon a footnote in Kauffman v. Gullace which provides:

While plaintiffs claim that the earlier denial of summary judgment motions by a different judge precluded the trial judge here from granting summary judgment, we note that there is no impediment to multiple motions for summary judgment, if the facts developed at some later point in the discovery process change sufficiently to warrant a new application. Unfortunately, we were not supplied with the facts available to the judges who decided the earlier motions so that we could determine whether the motion should even have been entertained. We can only assume that there were sufficient new facts for the trial judge to conclude that a new review was appropriate. While we disagree with the trial judge's conclusion, we do not fault the judge for considering the merits of defendants' application. [252 N.J. Super. 467, 476 n.3 (App. Div. 1991).]

In this case, Montes succeeded when he first filed his summary judgment motion seeking the dismissal of all of plaintiff's claims. After we reversed the trial court's decision with respect to the intentional tort claims, Montes promptly renewed his summary judgment motion based on the statute of limitations. Under those circumstances, though the better practice would have been to include the statute of limitations defense in the first summary judgment motion, the trial court did not err by hearing and deciding the second motion.

Finally, plaintiff argues that she commenced her action within two years of the last battery which occurred in 2006. As we previously explained, the intentional tort claims arising from conduct that occurred after the date of the Velez decision, June 29, 2004, supra, 180 N.J. at 284, 297, are barred due to plaintiff's failure to comply with the notice provisions of the TCA. The intentional tort claim that occurred before June 29, 2004, is barred by the statute of limitations contained in N.J.S.A. 2A:14-2.


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