On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-612-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
In these consolidated appeals, defendants, the County of Atlantic and the City of Brigantine, a municipality located in Atlantic County, appeal from a trial court order of April 18, 2011 granting the motion of plaintiff, Charles Cicala, as proposed administrator of the estate of Barbara Cicala, leave to file late notices of tort claim. On appeal, defendants argue that the court erred in granting plaintiff's motion, because plaintiff failed to provide evidence of the extraordinary circumstances required to warrant such relief. We agree and reverse.
The record discloses that Barbara Cicala fell while walking on a public sidewalk in Brigantine on April 11, 2010. She had surgery on the following day and died as the result of a pulmonary blood clot on May 7, 2010. Shortly after decedent's death, on May 11, 2010, plaintiff sustained a heart attack, but was able to attend her funeral, which occurred on May 13, 2010. On May 14, 2010, plaintiff suffered a second heart attack.
Despite his heart condition, on June 7, 2010, plaintiff met with attorney Pamela Brown-Jones to discuss the possibility of instituting a medical malpractice action seeking recovery for his wife's death. However, on October 19, Brown-Jones declined representation.
Six days later, on October 25, 2010, plaintiff met with attorney Anthony Granato to discuss filing a medical malpractice suit. Granato declined representation on November 3, 2010.
In early December 2010, plaintiff met with a third attorney, his present counsel, Patrick D'Arcy, who agreed to represent plaintiff in a Tort Claims Act (TCA) action against Brigantine and Atlantic County, alleging a trip and fall by decedent on an uneven sidewalk. See N.J.S.A. 59:1-1 to 14-4. Notices of claim were filed on December 9, 2010, eight months after decedent's injury.
After a delay of almost two more months, on January 26, 2011, plaintiff filed a motion for leave to file late notices of claim pursuant to N.J.S.A. 59:8-9. The motion was granted on April 18, 2011. The motion court held that plaintiff's diligence in seeking legal counsel with respect to his wife's death was sufficient to constitute extraordinary circumstances for failing to file a timely notice of claim. We regard the court's determination as constituting a misuse of the court's discretion and reverse. See McDade v. Siazon, 208 N.J. 463, 476-77 (2011) (recognizing the applicability of an abuse of discretion standard).
A claimant may not bring an action against a public entity under the TCA unless he complies with the Act's notice requirements. N.J.S.A. 59:8-3, 59:8-4 and 59:8-8. The purpose of the notice is
(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 to 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 [public entity] in advance as to the indebtedness or liability that it may be expected to meet. [Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000) (internal quotation marks and citations omitted).]
A claimant must file a notice of claim with the public entity within ninety days of the accrual of ...