EDWARD MONTERO, et al. v. NEW JERSEY TRANSIT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2325-05T52325-05T5

EDWARD MONTERO AND

KATHY MONTERO,

husband and wife,

Plaintiffs-Appellants,

v.

NEW JERSEY TRANSIT,

Defendant-Respondent.

 

Submitted September 27, 2006 - Decided October 17, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Union County, UNN-L-3052-05.

Scott Joseph Capriglione, attorney for appellants.

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Jean P. Reilly, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Edward Montero was injured when the doors of a New Jersey Transit train closed on him. He sued New Jersey Transit for personal injuries he sustained in the accident. He appeals from a December 16, 2005 order dismissing his complaint with prejudice. We affirm substantially for the reasons expressed by Judge Pisansky.

Plaintiff was injured on July 29, 2003. According to his notice of claim dated September 10, 2003, plaintiff suffered "serious injuries to [his] arms, legs, head and body" as a result of the accident. The notice states that the damages were "solely caused by the negligence of the train operator, who wrongfully closed the train doors on claimant." At the time of his tort claim notice, plaintiff was "still under treatment."

Though plaintiff was injured on July 29, 2003, his complaint was not filed with the court until August 15, 2005. The trial judge therefore dismissed the complaint because plaintiff did not file within two years of the accident. We agree with the trial judge's reasoning and conclusion.

In New Jersey, a plaintiff's claim against a public entity for personal injuries must be presented within two years from the date of the accrual of the claim. N.J.S.A. 59:8-8b. Generally, "a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides the remedy, occurs." Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). While the time to file the complaint is tolled if a plaintiff is unaware that he has been injured, awareness of the permanency of his injury has no bearing on the accrual date. Id. at 121, 123.

Here, plaintiff claims he was not aware of the extent of his injuries at the time of the accident. That does not, however, toll the two-year statute of limitations. Id. at 117-19. Further, his notice of claim, filed a little over a month after the accident, establishes that the accident caused him serious injuries. Simply put, his claim accrued at the time of the accident.

Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Plaintiff argues that he actually sent his complaint for filing on July 19, 2005, and the failure to docket it until August 15, 2005 should not be held against plaintiff. The motion judge found, however, that the only evidence submitted to the court with regard to the date of filing was the August 15, 2005 date stamp. And, in the absence of any proof of mailing, the court concluded that plaintiff's complaint was filed on that date. We agree. Plaintiff has submitted no evidence that would cause us to question that decision.

Affirmed.

 

Plaintiff Kathy Montero has a per quod claim. All references to plaintiff shall be to Edward Montero.

(continued)

(continued)

4

A-2325-05T5

October 17, 2006