February 23, 2012
TONI CLARK, PLAINTIFF-APPELLANT,
ESSEX COUNTY COLLEGE, SUSAN MULLIGAN, JOSE CHESTNUT, AND JEANNETTE ROBINSON,*FN1 DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5142-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on February 7, 2012
Before Judges Carchman and Baxter.
Plaintiff Toni Clark appeals from a March 29, 2010 Law Division order dismissing her complaint against defendant Essex County College (College) because plaintiff failed to file the notice of tort claim required by the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3; and failed to state a claim upon which relief could be granted. Because we agree with the first ground upon which the judge relied, we need not reach the second. We affirm.
In the spring semester of 2007, while a student at Essex County College, defendant enrolled in a biology class taught by defendant, Professor Jose Chestnut. In her Law Division complaint, plaintiff alleged that Professor Chestnut "repeatedly used sexual comments, jokes, remark[s] in class. Suggestive remarks that [were] unwanted and offensive."*fn2 She maintained that Professor Chestnut's comments were "humiliating" and had caused her "emotion[al] distress, pain and anguish." Although the exact date is not specified in the record, it is undisputed that plaintiff withdrew from the course at the beginning of the spring 2007 academic year.
The record on appeal is sparse, but from the documents presented, we discern that plaintiff made a verbal complaint about Professor Chestnut to defendant Dean Susan Mulligan shortly after plaintiff withdrew from the course. Not until nearly a year later, on January 28, 2008, did plaintiff send any written complaint to the College or any of its officials. In particular, on January 28, 2008, plaintiff sent a letter to Dean Mulligan making a "formal complaint" about the "demeaning language" used by Professor Chestnut. Plaintiff never filed a notice of tort claim.
Defendants moved for dismissal of plaintiff's complaint, arguing that she had not, at any time, filed the notice of tort claim, which according to N.J.S.A. 59:8-8, must be filed "not later than the ninetieth day after accrual of the cause of action." While plaintiff acknowledged that she had not filed a notice of tort claim, she asserted that her January 28, 2008 letter to Dean Mulligan was the functional equivalent of the formal notice of tort claim required by N.J.S.A. 59:8-8.
In a comprehensive and well-reasoned written opinion, Judge James S. Rothschild, Jr., rejected plaintiff's contention that the letter of January 28, 2008 sufficed as the formal notice of tort claim required by N.J.S.A. 59:8-8. The judge observed that plaintiff's cause of action arose, at the latest, in the spring of 2007. He noted that plaintiff had not filed a Tort Claims Act notice then, nor had she filed one subsequently, despite the provisions of N.J.S.A. 59:8-9. The judge observed that N.J.S.A. 59:8-9 permits the filing of a late tort claims notice at any time within one year after the accrual of the claim if the plaintiff files a motion "supported by affidavits . . . showing . . . extraordinary circumstances" excusing the failure to file the notice within the required ninety-day period, and if a plaintiff also establishes that the public entity defendant will not be prejudiced by the late filing of the notice. Concluding that plaintiff's failure to file the required notice of tort claim barred her cause of action, the judge held that defendants were entitled to dismissal of plaintiff's complaint with prejudice. In so holding, the judge specifically rejected plaintiff's assertion that her failure to file a notice of tort claim was excused because the professor's actions were intentional, and that her claim was, for that reason, analogous to a discrimination claim under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49.
In his written opinion, the judge then proceeded to analyze the allegations set forth in plaintiff's complaint, and ultimately concluded that plaintiff failed to state a claim upon which relief could be granted. Although the confirming order that dismissed plaintiff's complaint with prejudice is not part of the record on appeal, the parties agree that the judge entered such an order.
On appeal, plaintiff presents no legal argument addressing the judge's conclusion that plaintiff's failure to file a notice of tort claim required the dismissal of her complaint. Instead, her arguments on appeal are confined to a claim that the judge "was prejudice[d] and bias[ed] against her" and "failed to perform his constitutional duties." She supports that accusation by pointing out that she observed the lawyer who represented defendants "walk[ing] out of [the judge's] chamber[s] on the date [the judge] made his decision to dismiss plaintiff['s] complaint." She also asserts that the judge "cit[ed] defense cases to defendant to use as a defense."
Defendant's arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(A) and (E). The record of the March 25, 2010 motion hearing demonstrates that the judge was extremely solicitous of plaintiff's rights, and took great care to explain the basis for his ruling. Contrary to plaintiff's contentions, the judge did not suggest cases to defense counsel that she could use in support of her argument; rather, the judge cited cases, and discussed them, in support of his conclusion that plaintiff had failed to state a claim upon which relief could be granted.
As for plaintiff's comments about defense counsel being in the judge's chambers on the day the judge ruled in favor of defendants, we note only that there are myriad reasons an attorney might be in a judge's chambers, such as delivering a brief to the judge's law clerk, looking for a lawyer who might be in the judge's chambers, or waiting for a later conference with the judge. Plaintiff's insinuation that the judge engaged in an improper ex parte conversation with defense counsel is based on nothing other than sheer speculation.
Plaintiff's attack on the judge's integrity is wholly unwarranted and entirely unsupported by anything in the record. For that reason, we reject the arguments plaintiff has advanced on appeal.
As we have noted, plaintiff has not presented any legal argument concerning her failure to file the required notice of tort claim. Nonetheless, for the sake of complete appellate review, we note that Judge Rothschild's decision concerning the Tort Claims Act notice was correct, as it was based upon a proper application of the requirements of N.J.S.A. 59:8-8 and N.J.S.A. 59:8-9. Moreover, even if we were to consider plaintiff's January 28, 2008 letter to constitute a notice of claim, that letter was filed eight or nine months after the ninety-day deadline imposed by N.J.S.A. 59:8-8 had already expired. The filing of a notice after the expiration of the ninety days is invalid, and of no legal effect, unless a plaintiff files with the court a motion for permission to file a late notice. Priore v. State, 190 N.J. Super. 127, 130 (App. Div. 1983) (holding that the failure to seek leave of court renders the late notice a nullity). Plaintiff did not file such a motion.