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Nobis Venture, LLC D/B/A Galleria Hudson, and Phillip H. Stamborski v. Donahoe Brothers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 8, 2012

NOBIS VENTURE, LLC D/B/A GALLERIA HUDSON, AND PHILLIP H. STAMBORSKI, PLAINTIFFS-APPELLANTS,
v.
DONAHOE BROTHERS, LLC, CNA, CITY OF JERSEY CITY DEPARTMENT OF PUBLIC WORKS, CITY OF JERSEY CITY, DEFENDANTS, AND JERSEY CITY MUNICIPAL UTILITIES AUTHORITY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4784-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 17, 2012

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.

I.

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.

II.

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 JCMUA, and further indicated that the proposed issue to be raised on appeal was "[w]hether dismissal of Plaintiffs' Complaint as to Defendant JCMUA was warranted."

"It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)). Plaintiff's challenge to the trial court's order vacating the default judgment is not properly before us, and we decline to review it.

We turn to plaintiff's argument that the trial court erred by dismissing his cause of action against the JCMUA. The JCMUA filed the motion to dismiss under Rule 4:6-2(e), asserting that the amended complaint failed to state a claim on which relief could be granted. However, the parties and the trial court relied upon matters outside of the amended complaint. Rule 4:6-2 states that when matters outside the pleading are presented but not excluded by the court, a motion to dismiss under subsection (e) shall be treated as one for summary judgment. Accordingly, we will review this matter under the summary judgment standard.

When reviewing an order granting summary judgment, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Thus, we must determine whether there was a genuine issue of material fact, and if not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Here, the facts are undisputed. We conclude the court's ruling on the law was correct.

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. See N.J.S.A. 59:8-3 (providing 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"). One condition required by the TCA is that a claim form (TCA Notice) be completed and properly filed with the public entity against which claim is being asserted. 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).

Plaintiff did not file a TCA Notice with the JCMUA within ninety days of the accrual of his cause of action, and did not file a motion seeking leave to file a late TCA Notice within one year of the accrual of his cause of action. Having failed to timely notify the JCMUA of its claim, plaintiff is barred from now asserting it, as the trial court correctly found.

Plaintiff argues that he substantially complied with the TCA Notice requirements. We disagree. Plaintiff cannot successfully assert that he substantially complied with those requirements when he made no attempt to file a TCA Notice against the JCMUA. See Harry A. Margolis & Robert Novack, Claims Against Public Entities, comment to N.J.S.A. 59:8-3 (2011). A TCA Notice served upon the wrong public entity does "not absolve plaintiff[] of the obligation to promptly identify [the proper public entity] and serve a timely notice of claim." McDade v. Siazon, 208 N.J. 463, 479 (2011).

Plaintiff also asserts that when he filed his motion to add the JCMUA as a defendant in his action, he advised the JCMUA of the "circumstances surrounding the claim and damages suffered by the Plaintiffs and included the Notice of Claim served upon the City of Jersey City, which form included a statement of the facts and an itemized list of the damages suffered by Plaintiff[]" as a result of the flooding allegedly caused by the sewer system. Plaintiff has not made his motion a part of the record. More significantly, plaintiff's motion to amend his complaint was filed more than a year after his cause of action accrued, and, in any event, was not a motion seeking leave to file a late TCA Notice. Plaintiff simply did not comply with the requirements of N.J.S.A. 59:8-8 and -9.

Plaintiff's claim that he was unaware of the JCMUA's potential liability until more than a year after his claim accrued is unpersuasive. Plaintiff was obligated to promptly identify the public entity responsible for maintaining the sewer system. Plaintiff made no inquiry of Jersey City about the entity responsible for maintaining the city's sewer system, and conducted no such investigation.

Plaintiff also asserts that the JCMUA is equitably estopped from asserting its TCA Notice defense. We reject that claim.

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 Cnty. 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, supra, 208 N.J. at 480.]

Plaintiff's failure to timely file either a TCA Notice or a motion seeking leave to file a late TCA Notice was not attributable to any act or omission on the part of the JCMUA. The JCMUA did nothing to mislead plaintiff.

Plaintiff argues that the JCMUA was dilatory in answering the complaint. However, plaintiff never served the JCMUA until more than one year after the flooding and consequent damage. The JCMUA's delay in timely responding to the amended complaint did not cause or contribute to plaintiff's failure to timely file a TCA Notice.

Plaintiff made no inquiry, and conducted no investigation, to ascertain the identity of the entity responsible for maintaining Jersey City's sewer system. Plaintiff did not file a TCA Notice within ninety days of damage to his wholly-owned LLC's property. And plaintiff did not move within one year for leave to file a late TCA Notice. Under those circumstances, the trial court committed no error when it dismissed plaintiff's complaint against the JCMUA.

Affirmed.


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