On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4784-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Carchman.
Plaintiff Phillip H. Stamborski appeals from the June 30, 2010 order dismissing his complaint against defendant Jersey City Municipal Utilities Authority (JCMUA) because he failed to timely file a notice of claim as required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.*fn1 We reject plaintiff's arguments that he substantially complied with the TCA notice provisions by filing a notice of claim with defendant City of Jersey City, and that the JCMUA is equitably estopped from denying his claim. Accordingly, we affirm.
Plaintiff owns Nobis Venture, LLC (Nobis), an entity that operates its "art dealership" business in Jersey City out of a basement unit that it leases from defendant Donahoe Brothers, LLC (Donahoe). On April 16, 2007, during flooding caused by heavy rain, water flowed into the basement and destroyed equipment, supplies, inventory, picture frames, and irreplaceable artwork. Plaintiff alleges that structural defects in the building caused water to enter the basement through a drain in the basement floor, the sump pump, and the basement entrance. Plaintiff also alleges that flooding in the general vicinity has been a recurring problem due to the negligent maintenance of the city's infrastructure and drainage system.
On August 2, 2007, more than ninety days after the April 16, 2007 flood, plaintiff prepared a notice of claim against Jersey City and filed it with the city the same day. In that notice, plaintiff identified "Jersey City Municipal Utilities Authority [and] the City of Jersey City" as "the City agency or agencies that . . . caused [the] damage/injury."*fn2 Fifty-five days later, on September 26, 2007, plaintiff and Nobis filed the original complaint against their landlord, Donahoe; their insurance company, CNA;*fn3 the City of Jersey City; and Jersey City's Public Works Department.
Jersey City subsequently moved to dismiss the complaint because plaintiff and Nobis had not filed a notice of claim within ninety days of the accrual of their cause of action as required by N.J.S.A. 59:8-8, and had not filed a motion with the court under N.J.S.A. 59:8-9 for leave to file a late notice of claim. On January 22, 2008, in response to Jersey City's motion to dismiss their complaint, plaintiff and Nobis filed a motion for leave to file a late notice of claim.*fn4
In September 2008, the Jersey City Law Department notified plaintiff's counsel that the JCMUA was "the body responsible for water as well as sewerage issues." Based on that letter, plaintiff and Nobis moved to amend their complaint. The motion was granted and plaintiff served the JCMUA with the amended complaint on January 20, 2009. When the JCMUA failed to timely answer the complaint, plaintiff had a default entered against it. On September 21, 2009, plaintiff obtained a default judgment. In October 2009, the JCMUA successfully moved to vacate the default judgment.
Thereafter, the JCMUA filed a motion returnable April 16, 2010, to dismiss the amended complaint under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. The court granted the motion on May 3, 2010. In its confirming order, the court noted, "[t]his motion was not opposed." Plaintiff apparently submitted belated opposition because the court conducted oral argument on May 28 and June 11, 2010. At the conclusion of the June 11, 2010 hearing, the court granted the motion. The court issued a confirming order on June 30, 2010.
Plaintiff and Nobis filed an appeal from the June 30, 2010 order. After their attorney terminated his practice, Nobis was notified that it was required to retain new counsel. See R. 1:21-1(c). When Nobis failed to retain new counsel, we dismissed its appeal and ordered that "the appeal shall proceed only as to appellant Phillip H. Stamborski now representing himself." Plaintiff has continued pro se.
Plaintiff's first argument concerns an order from which he did not appeal. Plaintiff contends the trial court erred when it vacated the default judgment against the JCMUA in its December 4, 2009 order. In his notice of appeal, plaintiff stated that he was appealing from the court's June 30, 2010 order. More specifically, plaintiff stated that he was appealing from "[t]he portion of the Order dismissing the Complaint as against Jersey City Municipal Utilities Authority." In his Civil Case Information Statement, plaintiff reiterated that he was appealing from the June 30, 2010 order that dismissed his complaint against the ...