On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1143-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
Defendant County of Ocean appeals from the Law Division's orders: denying its motion to dismiss the complaint of plaintiff, James Murphy, and granting plaintiff's cross-motion to file a late notice of claim under the Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to 12-3; and denying defendant's subsequent motion for reconsideration.*fn1 We have considered the arguments raised on appeal in light of the record and applicable legal standards. We reverse.
On August 15, 2010, plaintiff was injured while driving his motorcycle at the intersection of Mantoloking Road and Hooper Avenue in Brick Township (Brick). He alleged the accident was caused when his motorcycle struck a pothole in the roadway.
The parties' appendices do not include all the documents apparently filed in support of the motion and cross-motion. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:6-1 (2012) ("filed documents in the action bearing on the issues on appeal are required to be included in the appendix"). We therefore rely, in part, on the judge's oral decision to explain what happened procedurally thereafter.
On October 19, two months after the accident, and within the ninety-day timeframe provided by N.J.S.A. 59:8-8, plaintiff's counsel filed a notice of tort claim upon Brick. In response, Scibal Associates (Scibal), Brick's "claims administrator," forwarded a six-page questionnaire dated October 26. See N.J.S.A. 59:8-6 (permitting the public entity to "adopt forms specifying information to be contained in claims filed against it"). Plaintiff asserted that he "completed and returned" the form to Scibal, although the record does not reveal when that was done.*fn2 By letter dated February 24, 2011, Scibal advised plaintiff's counsel that Brick did not "own, control, or maintain the location of [plaintiff's] accident." The letter was accompanied by an "Affidavit of Non-Jurisdiction" executed by Brick's Safety Inspector.
On March 3, 2011, plaintiff's counsel served a notice of tort claim upon defendant and the State of New Jersey, Department of Transportation.*fn3 On March 14, Scibal, which also served as defendant's claims administrator, advised plaintiff's counsel "that this claim can not be accepted as submitted after the 90 day Notice of Claim period and will require filing a Late Notice of Claim Motion with the Court."
Plaintiff filed no such motion, but, rather, on March 24, filed a complaint against defendant.*fn4 On June 1, defendant moved to dismiss in lieu of filing an answer. Plaintiff opposed the motion and cross-moved for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9.
In his oral decision, the judge concluded plaintiff had "demonstrated exceptional circumstances," and defendant had "not been substantially prejudiced." He reasoned that because Scibal forwarded a "six-page" request for information and waited four months to advise plaintiff that Brick did not maintain the road, plaintiff's counsel "could reasonably infer and did infer that Brick . . . was the responsible party." The judge continued, "The identity of the proper party in this case was obscured . . . by Scibal['s] . . . initial response to plaintiff's counsel and led counsel to believe he had identified and served notice on the proper party." Since "the delay in notice was not significant[,] that is, less than four months after the date the 90-day notice was due[,]" the judge found defendant suffered no prejudice.
Defendant moved for reconsideration. In an oral opinion, the judge reiterated his prior reasoning and concluded that "[t]he identity of the proper party in this instance was obscured by Scibal['s] . . . initial response . . . and led counsel to believe that he had identified and served notice on the proper party." He denied defendant's motion for reconsideration and this appeal followed.
We set forth some general principles that guide our review. "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," "an intentionally short period in which the claimant must conduct an investigation and give notice to the correct public entity." McDade v. Siazon, 208 N.J. 463, 475 (2011) (emphasis added). Failure to comply "results in a severe penalty: '[t]he claimant shall be forever barred from recovering against [the] public entity.'" Id. at 476 (alterations in original) (quoting N.J.S.A. 59:8-8). "[R]ecogniz[ing] that discretionary judicial relief from the ninety-day [TCA] requirement may be necessary to ameliorate the consequence of a late filing in appropriate cases," "[t]he 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." Id. at 476-77 (quoting N.J.S.A. 59:8-9).
The TCA does not define what constitutes "extraordinary circumstances," leaving "for a case-by-case determination . . . whether the reasons given rise to the level of 'extraordinary' on the facts presented." Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (citation and internal quotation marks omitted). "The inquiry focuses on the reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor." McDade, supra, 208 N.J. at 477. Whether to permit a plaintiff to file a late notice of claim "is a matter left to the sound discretion of the trial court, [although] this discretion is limited to cases in which the claimant's affidavit shows sufficient reasons constituting extraordinary circumstances for the delay ...