On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2039-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Carchman.
Defendants Borough of Hightstown (the Borough), Borough of Hightstown Police Department and Detective Benjamin Miller appeal from an order of the Law Division granting plaintiff Robert Thibault's motion to file a late Notice of Tort Claim, N.J.S.A. 59:8-9. In her opinion, Judge Darlene J. Pereksta determined that plaintiff made a sufficient showing of "extraordinary circumstances" to warrant the granting of the application. We agree and affirm.
These are the relevant facts adduced from the record created in support of the motion. On August 6, 2010, defendant Miller observed and stopped a vehicle driven by plaintiff. Miller issued two summonses to plaintiff: for driving with a suspended license and for failure to surrender a suspended license. At the time of the stop, plaintiff was a candidate for Mayor in the Borough and advocated for a plan that would result in the takeover of police services in the Borough by the neighboring East Windsor Township Police Department, which issue was controversial and the subject of significant discussion and publicity in the municipality.
As recorded on the audio portion of the in-car camera system utilized by the defendant police department, Miller claimed the stop was random. Although plaintiff considered the stop "politically motivated," the documentation and Miller's statements did not support that view. Plaintiff lodged a complaint with the Borough police department, the Mercer County Prosecutor's Office and other agencies. The Borough police department undertook an internal investigation on August 20, 2010. The prosecutor's office conducted a "paper review" and returned the matter to the police department, which continued its internal investigation in February 2011.
Upon completion of the various investigations, plaintiff filed a motion in the municipal court seeking a release of the internal investigation. The application was granted. The report, which was not provided to us on this appeal, led plaintiff to conclude that defendants had violated plaintiff's rights under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2; 42 U.S.C.A. 1983; Art. I, par. 1 and 5 of the New Jersey Constitution; and the First and Fourteenth Amendments of the United States Constitution.
Plaintiff learned from the report that the "random" stop was anything but random and that defendant Miller had at least one day earlier performed a computer inquiry into plaintiff's warrant and motor vehicle history. The investigation report was made available to plaintiff on June 29, 2011, and a motion dated August 4, 2011 followed, seeking leave to file a late notice.
In her decision, Judge Pereksta stated:
The defendant contends that the cause of action accrued at the time of the stop, he at that point was alleging that it was an improper stop or profiling, so to speak, because he filed complaints with the prosecutor's office as to the police officer who stopped him. And so defense says that he is subject to the 90-day filing requirements for a tort claims notice against the public entity, the Hightstown, or the Borough of Hightstown and the Police Department.
Now, [N.J.S.A.] 59:8-9 provides that a claimant who fails to file his notice of claim within 90 days as provided may in the discretion of the Superior Court Judge be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. And there needs to be a showing of sufficient reasons constituting extraordinary circumstances for failure to file within the 90-day period. Then [sic] says in no event may any suit against a public entity or public employee be filed later than two years from the time of the accrual of the claim. I should note as well the individual detective or Police Officer Miller was also served or also sued and is subject to this as well.
He is, he being the plaintiff, in filing his [sic] oneday shy of a year from the traffic stop that's the subject of this claim, however, I do find that he does fit within the exception showing exceptional circumstances. Although he could have filed the claim without any documentation[,] I don't think his waiting to see if . . . his basis was correct in terms of waiting to get the internal investigation report, and that took him some time because it wasn't readily handed over to him. So I don't see that he should be punished for trying to corroborate what his -- even if it was his initial instinct to think that this was an improper stop, to try to get some evidence to support that. Also, I don't think there is any showing of any prejudice to any of the public entities or to Detective Miller since early on they were noticed through the filing of the complaint with the Prosecutor's Office and they were subject to the internal investigation so they knew that there ...