On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3915-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
Defendant East Orange Board of Education (Board) appeals from a December 17, 2010 order denying reconsideration of a May 14, 2010 order allowing plaintiff to file a late notice of claim against the Board. Defendant also appeals from a November 18, 2011 order denying its request for summary judgment and reversing a September 2, 2011 order that vacated the May 14, 2010 order.*fn2 After reviewing the record in light of the contentions advanced on appeal, we remand for oral argument and further findings of fact and conclusions of law.
Plaintiff Marie Barnes*fn3 worked for third-party defendant Sodexo Management, Inc. (Sodexo) as a food service worker when she slipped and fell in the cafeteria on May 15, 2009, at the Dionne Warwick Institute, a public school owned and operated by the Board. Plaintiff has undergone two surgeries and has been wheelchair-bound since the accident. Sodexo's workers' compensation insurance company paid Barnes for her medical treatment and temporary disability benefits. Plaintiff claims that "Yolanda" from Sodexo told her that the company was the "only resource for [her] to get medical treatment and compensation." Yolanda Shivers, the general manager of Sodexo, certified that she had a two or three minute conversation with plaintiff, during which she "advised [plaintiff] that with respect to her work injury, she would receive worker's compensation that would pay for her medical expenses and other compensation." Shivers denied giving plaintiff any legal advice or advising her that worker's compensation was her only available remedy.
Plaintiff first consulted an attorney on May 10, 2010. The lawyer made an emergent application to allow her to file a late claim under the Tort Claims Act, N.J.S.A. §§ 59:1-1 to 59:13-10 (TCA). N.J.S.A. 59:8-9. This application was granted on May 14, 2010, before defendant had an opportunity to respond and one day less than one year after the accident.*fn4
The Board filed a motion for reconsideration, which was denied on December 17, 2010, by a second judge. The Board sought oral argument on its motion for reconsideration, which was improperly denied by the judge without explanation. See R. 1:6-2; Raspantini v. Arocho, 364 N.J. Super. 528, 531 (App. Div. 2003). The following handwritten reasons appear on the December 17, 2010 order:
[The first judge] appropriately exercised discretion. Plaintiff's belief that her employer who was paying medical bills, etc. provide a sufficient basis under N.J.S.A. 59:8-9. No prejudice to public entity -extraordinary circumstances.
Plaintiff entered default against the Board, which was then vacated by consent. The Board was subsequently granted leave to file a third-party complaint against Sodexo. Upon receipt of defendant's notice of appeal, Sodexo sought to supplement the record with Yolanda Shivers's certification. On June 13, 2011, we remanded to the trial court for reconsideration of its decision in light of the newly-produced Shivers certification. Initially, with no opposition filed, the motion judge reconsidered and, on September 2, 2011, vacated the prior orders of May 14, 2010, and December 17, 2010, which had allowed plaintiff to file a late notice of claim under the TCA. The Board then filed a motion for summary judgment. In a November 18, 2011 order, after oral argument was again improperly denied, the motion judge vacated his order of September 2, 2011. The motion judge wrote the following on the November 18, 2011 order:
The 9/2/11 order is vacated. Court did not consider opposition at that time, 9/2/11. After reviewing entire case and all submissions including the newly submitted evidence, court denies defendant's motion for reconsideration and reinstates original orders of 5/14/10 and 12/17/10 allowing plaintiff permission to file a late notice of claim pursuant to N.J.S.A. 59:8-9.
We then reinstated the appeal and consolidated it with the earlier docket.
N.J.S.A. 59:8-9 provides:
A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, 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 act or to file a motion seeking leave to file a late notice of claim within a ...