July 2, 2012
MICHAEL BROWN, PLAINTIFF-APPELLANT,
PASSAIC COUNTY, DEFENDANT-RESPONDENT, AND SERGEANT MEEHAN, OFFICER DALTON, OFFICER TORRIBO, AND OFFICER TORRES, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3128-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2012
Before Judges Baxter and Carchman.
Plaintiff Michael R. Brown, an inmate at New State Prison in Trenton, appeals from an order denying his motion, which sought leave to file a notice of tort claim out of time.
Plaintiff asserts that extraordinary circumstances existed to support his claim for relief from the time limitations imposed by the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3, and he further asserts that he was misled by counsel as to the filing requirements. The trial judge denied relief. We conclude that the judge did not abuse his discretion, and we affirm.
These are the relevant facts presented in support of the motion for leave to file a late notice. Plaintiff is an inmate presently incarcerated for a term of life imprisonment for murder. As a result of an application for relief from his conviction and sentence, plaintiff was transferred to the Passaic County Jail, where he was held pending his appearance before the court in the Passaic County Courthouse. Plaintiff claims that on July 9, 2009, while awaiting a court appearance, he was involved in an altercation with a Passaic County corrections officer, from which he allegedly sustained injuries and suffered damages. Plaintiff was transported to St. Joseph's Hospital, where he was treated for head injuries, abrasions and lacerations before he was released. In January 2010, six months after the altercation, plaintiff, through his attorney, filed a notice of tort claim.
In February 2010, counsel was advised by the County's insurance carrier that the notice was filed out of time. N.J.S.A. 59:8-8. The attorney responded in the same month, challenging the decision not as to its merits, but rather, by claiming that the decision as to timeliness was properly a court decision rather than one to be made by a carrier. After the February response, plaintiff took no further action until June 2010, when he filed a notice of motion for leave to proceed in forma pauperis. Counsel filed a notice of motion for leave to file a late notice of tort claim. Included in the filing was a certification from the attorney, as well as a disclaimer that she did not represent plaintiff. Also included among the papers was plaintiff's certification, wherein he stated:
8. As a result of the administrative charges brought against me at the Passaic County Jail, I was subject to severe discipline and locked in solitary confinement at New Jersey State Prison, where I remain, under extraordinary circumstances which prevented me from filing a timely Notice of Claim as described below. 
12. Because  the charges lodged against me in Passaic County  were communicated to the prison, I was immediately placed in close custody detention (short[-]term solitary confinement) at the prison[,] where I remained for 32 days. 
The record indicates that at all times relevant to the motion, plaintiff was in "solitary confinement."
Although not alluded to by the trial judge, additional facts relevant to plaintiff and his condition emerge from the filing in support of his motion. He claims that during the time period subsequent to the alleged assault, he had limited access to legal and paralegal assistance; yet during this same period, he prepared for various other legal proceedings, including the defense of disciplinary charges against him, as well as the appeal of an adverse ruling in reference to those charges. In addition, he claims to have been hindered in investigating the facts underlying the present cause of action; however, plaintiff related that he used the services of his family's lawyer, who, while claiming not to represent plaintiff in this action, was actively engaged in securing information and processing various documents related to the underlying cause of action. Her efforts appear to be expansive especially in the period immediately subsequent to the July incident.
Most important, plaintiff requested that the attorney "prepare and submit the Passaic County [n]notice of [c]laim form with medical records." In January 2010, the attorney fulfilled plaintiff's request by signing the notice of claim on behalf of plaintiff prior to its submission. No explanation was forthcoming as to the six-month delay between the July incident and the January filing.
In denying plaintiff's motion, the trial judge noted that while plaintiff alleged that as an incarcerated person, he had limited access to resources that would have assisted him in filing the claim, his allegations were too generalized to rise to the level of being extraordinary circumstances warranting relief.
This appeal followed.
The Act governs claims against public entities. As a precondition to filing suit, the claim is required to be presented in accordance with the provisions of the Act. See N.J.S.A. 59:8-3. Under the Act, a party has ninety days from the accrual of his claim to file a notice of claim against a public entity. N.J.S.A. 59:8-8(a).
A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. . . . The claimant shall be forever barred from recovering against a public entity or public employee if:
a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9 . . . .
[N.J.S.A. 59:8-8 (footnote omitted).]
This notice requirement was created: (1) to allow the public entity at least six months for administrative review, with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order that it may adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet. See Moon v. Warren Haven Nursing Home, 182 N.J. 507, 514 (2005) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)).
However, an exception to the ninety-day notice rule is found at N.J.S.A. 59:8-9, which provides as follows:
A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this [A]ct, 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 his claim, provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting ["]extraordinary circumstances["] for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this [A]ct or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this [A]ct be filed later than two years from the time of the accrual of the claim.
[Ibid. (emphasis added).]
A decision to permit a late claim is subject to the discretion of the court. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988); R.L. v. State-Operated Sch. Dist. of Newark, 387 N.J. Super. 331, 340 (App. Div. 2006). Where the motion is not timely made, a claimant must at a minimum demonstrate why the claimant could not have moved within a reasonable time for leave to file a late notice. Wood v. County of Burlington, 302 N.J. Super. 371, 380 (App. Div. 1997) (denying leave to file late notice, in part because a nine-month delay in filing the motion was unexplained). Recently, in McDade v. Siazon, 208 N.J. 463 (2011), the Supreme Court restated the relevant policy implications relevant to the application of N.J.S.A. 59:8-9 and said:
Following the date of accrual, the statutory scheme affords an
intentionally short period in which the claimant must
conduct an investigation and give notice to the correct public entity.
N.J.S.A. 59:8-8(a) requires that a plaintiff seeking to file a claim
against a public entity serve a notice of claim within ninety days of
the accrual of the cause of action. That requirement is intended to
achieve the Legislature's goals.
Strict application of N.J.S.A. 59:8-8(a) thus furthers the legislative intent. Given the interplay between the notice procedure and the responsible public entity's opportunity to plan for potential liability and correct the underlying condition, the Legislature required that the notice of claim be filed directly with the specific local entity at issue. N.J.S.A. 59:8-7 ("A claim for injury or damages arising under this act against a local public entity shall be filed with that entity." (emphasis added)); see also Feinberg v. State, 265 N.J. Super. 218 (App. Div. 1993), rev'd on other grounds, 137 N.J. 126 (1994).
Failure to meet the ninety-day deadline for service of a Tort Claims Act notice of claim ordinarily results in a severe penalty: "[t]he claimant shall be forever barred from recovering against [the] public entity." N.J.S.A. 59:8-8. However, the Legislature recognized that discretionary judicial relief from the ninety-day Tort Claims Act requirement may be necessary to ameliorate the consequence of a late filing in appropriate cases. N.J.S.A. 59:8-9.
If such a motion is made, the grant or denial of remedial relief is "left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof." Lamb, supra, 111 N.J. at 146.
The Legislature imposed two standards for the grant of permission to file a late notice of claim: first, that there be a showing of "sufficient reasons constituting extraordinary circumstances" for the claimant's failure to timely file, and second, that the public entity not be "substantially prejudiced" thereby. N.J.S.A. 59:8-9. In a 1994 amendment to the statute, the Legislature replaced the previous standard requiring only "'sufficient reasons' for the delay" with the "extraordinary circumstances" standard. Lowe v. Zarghami, 158 N.J. 606, 625-26 (1999). The Legislature intended to "raise the bar for the filing of late notice from a 'fairly permissive' standard to a 'more demanding' one." Beauchamp, supra, 164 N.J. at 118 (quoting Lowe, supra, 158 N.J. at 625). The court's inquiry is fact-specific; it "leaves it for a case-by-case determination as to whether the reasons given rise to the level of 'extraordinary' on the facts presented." Lowe, supra, 158 N.J. at 626. The inquiry focuses on the reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor.
[McDade v. Slazon, 208 N.J. 463, 475-77 (2011).]
A careful analysis of plaintiff's submission suggests that he has advanced few valid reasons either for his failure to comply with the notice requirement or to sustain a finding of extraordinary circumstances. The notice that was filed in January 2010 provides no support for a finding of extraordinary circumstances to excuse the undue delay in filing. For example, it identifies two witnesses whose identities could have been discovered and revealed within the statutory ninety-day period. Moreover, the medical records attached could have been obtained in a timely manner. In sum, nothing in the proffered late notice suggests that additional time and effort were required to secure the information necessary to perfect the notice. The explanations for the delays in filing are unavailing. In sum, we agree with the trial judge that plaintiff failed to establish the requisite extraordinary circumstances required under N.J.S.A. 59:8-9. We conclude that the trial judge did not abuse his discretion in denying the application.
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