ROBERT BEHM v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0070-05T20070-05T2

ROBERT BEHM,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS and SOUTH WOODS

STATE PRISON,

Defendants-Respondents.

 

Submitted: April 24, 2006 - Decided June 7, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Number MER-L-1452-05.

Oxman, Goodstadt, Krevitz & Kuritz, attorneys for appellant (Sheldon A. Goodstadt, on the brief).

Zulima V. Farber, Attorney General, attorney for respondents (Michael J. Haas, Assistant Attorney General, of counsel; Tracey Hinson, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Robert Behm appeals from denial of his motion to file a notice of late claim against defendant Department of Corrections under the New Jersey Tort Claims Act pursuant to N.J.S.A. 59:8-9. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.

On March 14, 2004, while he was an inmate at South Woods State Prison, plaintiff underwent a surgical procedure at Bridgeton Hospital and received post-operative treatment at St. Francis Hospital. In May 2004, plaintiff contacted an attorney because he believed that a foreign object had been left in his abdomen and its presence had resulted in a wound infection. In August 2004, plaintiff developed a fistula at the surgical wound site.

Plaintiff claims that the follow-up care and treatment he received from prison personnel, or at their direction, was negligent, resulting in the development of the fistula and other complications that have caused permanent injury.

By letter to Southside State Prison dated June 1, 2004, plaintiff's attorney supplied a medical authorization and requested copies of all records of plaintiff's treatment in the medical unit of that facility from March 13, 2004, onward. That request was renewed by another letter from counsel to the prison dated September 7, 2004. By letter to plaintiff's attorney dated October 13, 2004, the Department of Corrections stated, inter alia, that plaintiff's "Medical File since April 1, 2004 contains a total of 504 pages[,]" and requested payment of $118.25, representing the copying costs. Payment was made, and the South Woods State Prison medical records were received by plaintiff's counsel in mid- to late-October 2004. An invoice dated October 22, 2004, from ChartONE, Inc. transmitted medical records of plaintiff's treatment at St. Francis Medical Center to plaintiff's counsel.

On June 1, 2005, plaintiff filed a motion seeking leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. In the moving certification, plaintiff's counsel stated that because it took time to acquire all medical records and submit them to a medical expert for review to determine whether there was a basis for a claim, it was not until April 28, 2005 that counsel was informed by the retained medical expert that there was a reasonable basis for pursuing a claim against the Department of Corrections. Counsel further certified that plaintiff was not diagnosed with the fistula until August 2004, and that the motion was being filed

less than one year from the date when any actions by the medical personnel at the prison facility were undertaken which may have caused or contributed to the fistula condition, and less than six (6) months from the time that counsel was provided with the complete medical records from South Woods State Prison and the other medical institutions at which Petitioner received medical treatment for his fistula condition.

The motion, which was opposed by defendants, was submitted to the Law Division for a ruling on the papers on July 22, 2005. In denying the motion, Judge Paul Innes found there was no showing of "extraordinary circumstances" that justified or warranted the filing of a late notice of claim. An order was issued on that date memorializing the court's denial of plaintiff's application.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF'S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PURSUANT TO N.J.S.A. 59:8-9.

POINT II

THE TRIAL JUDGE ABUSED HIS DISCRETION IN FAILING TO GRANT PLAINTIFF'S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM.

POINT III

THERE HAS BEEN NO SHOWING OF SUBSTANTIAL PREJUDICE BY THE PUBLIC ENTITY TO CAUSE A DENIAL OF THE MOTION.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons articulated by Judge Innes in his oral decision delivered on July 22, 2005. We add the following.

N.J.S.A. 59:8-8 requires that a notice of claim against a public entity must be presented to that entity "not later than the ninetieth day after accrual of the cause of action." However, a claimant who fails to file the notice of claim within this time frame may be permitted to file the notice of claim within one year after the accrual of the claim, provided that the public entity "has not been substantially prejudiced thereby." N.J.S.A. 59:8-9. However, the applicant must also demonstrate "sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8[.]" Ibid.

The motion judge found that plaintiff's claim accrued not later than "by May of 2004 when he first contacted counsel about the possibility of bringing suit[;]" thereby, plaintiff's notice of claim was filed outside the one-year period. Notwithstanding, the judge stated that even if plaintiff's claim did not accrue until the prison medical records were received in October 2004, plaintiff failed to establish the existence of "extraordinary circumstances." We agree.

Whether extraordinary circumstances exist must be determined on a case-by-case basis. Ventola v. New Jersey Veteran's Mem'l Home, 164 N.J. 74, 77 (2000); Epstein v. State, 311 N.J. Super. 350, 359 (App. Div.), certif. denied, 155 N.J. 589 (1998); O'Neill v. City of Newark, 304 N.J. Super. 543, 551 (App. Div. 1997).

Here, plaintiff's claim against the medical personnel of the prison relates to the care that he received that led to the diagnosis of the fistula in August 2004. His motion was made within one year of that date. However, the onset of that August 2004 medical complication clearly placed plaintiff on notice of his potential claim against the Department of Corrections. Moreover, there is nothing in the record to suggest that plaintiff would not have been aware that his claim was against a public entity or public employee. Cf. Lowe v. Zarghami, 158 N.J. 606, 629-30 (1999) (where the status of a physician as a public employee was obscured by his apparent status as a private physician).

Whether the ninety-day period is measured from the diagnosis of the fistula in August 2004, or from the receipt of prison medical records in late October 2004, there were no "sufficient reasons" that constituted "extraordinary circumstances" for the filing of a notice of claim "later than the ninetieth day after" either of those dates. There is no merit in the contention that plaintiff required a report from a medical expert prior to filing a notice of claim. The "affidavit of merit" requirement contained in N.J.S.A. 2A:53A-27 has nothing to do with the notice of claim requirement contained in Title 59.

 
Affirmed.

Fictitiously-named defendants have been eliminated from the caption.

In the certification in support of the motion to file a late notice of claim, plaintiff's counsel states that the medical records from St. Francis Medical Center were not received "until sometime in mid December 2004." However, as noted, the invoice transmitting those records to plaintiff's counsel is dated October 22, 2004.

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A-0070-05T2

June 7, 2006