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Dorene M. Kelly and Natasha Kelly v. Robert H. Thomas

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 15, 2012

DORENE M. KELLY AND NATASHA KELLY, PLAINTIFFS-APPELLANTS,
v.
ROBERT H. THOMAS,
STATE OF NEW JERSEY DEPARTMENT OF TREASURY, FLEET MANAGEMENT STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1960-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 30, 2012

Before Judges Alvarez and Waugh.

Plaintiffs Dorene M. Kelly and Natasha Kelly appeal Law Division orders denying their motion for leave to file a late notice of claim against defendants Robert H. Thomas and the New Jersey Department of the Treasury (Treasury),*fn1 and for reconsideration of the denial. We affirm.

Plaintiffs were involved in an automobile accident with a car driven by Thomas, a State employee, and owned by Treasury on July 22, 2010. They retained counsel shortly thereafter.

Plaintiffs and their attorney did not discover that Thomas was a State employee driving a State vehicle until they received the police report concerning the accident on November 8, 2010.

By that time, the ninety-day period for filing a notice of claim, as required by N.J.S.A. 59:8-8, had expired. Plaintiffs filed a motion for leave to file a late notice of claim, N.J.S.A. 59:8-9, on April 13, 2011, approximately five months after they received the police report. The motion was opposed by the State. The motion was denied on June 10, 2011. A motion for reconsideration was denied on July 22, 2011. This appeal followed.

We have reviewed plaintiffs' arguments in light of the facts and applicable law and find them to be without sufficient merit to warrant an extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

The substantive legal standards applicable in this case were discussed at length in our opinion in Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 456-57 (App. Div. 2008): [A]lthough the decision to grant a plaintiff permission to file late notice of a tort claim "'is a matter left to the sound discretion of the trial court,'" R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340 (App. Div. 2006) (quoting Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 403 (App. Div. 1996), overruled on other grounds by Beauchamp [v. Amedio, 164 N.J. 111, 120 (2000)]), this "discretion is limited to cases in which the claimant's affidavit shows 'sufficient reasons constituting extraordinary circumstances' for the delay and there is no 'substantial[] prejudice[]' to the public entity or employee." Ibid. (quoting Ohlweiler, supra, 290 N.J. Super. at 403) (alterations in original). Findings about "the lack of 'substantial prejudice' and the presence of 'extraordinary circumstances' . . . . must be expressly made in order to comply with the legislative mandate and to justify the entry of an order permitting the filing of a late notice of claim under N.J.S.A. 59:8-9." Allen v. Krause, 306 N.J. Super. 448, 455-56 (App. Div. 1997).

The "extraordinary circumstances" requirement was not part of the original Act, and mere "sufficient reasons" sufficed to warrant relief from the statutory time bar. The "extraordinary circumstances" language was added by amendment in 1994, L. 1994, c. 49, § 5, in order 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. "[T]he amendment may have signaled the end to a rule of liberality in filing." Ibid. Notably, the 1994 amendment "does not define what circumstances are to be considered 'extraordinary' and necessarily 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 [v. Zarghami, 158 N.J. 606, 625 (1999)].

[(Citations and internal quotation marks omitted).]

Even if the delay between the date of the accident and receipt of the police report could be characterized as due to "extraordinary circumstances," the longer delay between the receipt of the report and the filing of the motion cannot be so characterized. Consequently, the motion judge did not abuse his discretion in denying the motion.

Affirmed.


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