HELEN A. GAZZILLO v. BOARD OF EDUCATION, SOUTH HUNTERDON REGIONAL HIGH SCHOOL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3167-04T13167-04T1

HELEN A. GAZZILLO,

Plaintiff-Appellant,

v.

BOARD OF EDUCATION, SOUTH

HUNTERDON REGIONAL

HIGH SCHOOL,

Defendant-Respondent.

_____________________________________________________________

 

Argued December 20, 2005 - Decided January 25, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, L-577-04.

Kenneth W. Thomas argued the cause for appellant (Thatcher & Lanza, attorneys; John R. Lanza of counsel and Mr. Thomas, on the brief).

Jeffrey L. Shanaberger argued the cause for respondent (Hill Wallack, attorneys; Mr. Shanaberger and Christina L. Saveriano, on the brief).

PER CURIAM

Plaintiff Helen M. Gazzillo appeals from an order dated January 21, 2005, denying her motion for permission to file a late notice of claim against her employer, the Board of Education of South Hunterdon Regional High School (the Board) and her supervisor, Robert Grieb. We affirm.

The facts are not disputed. Plaintiff was an employee of the school, working as a custodian. She asserts she was sexually assaulted by Grieb on July 20, 2004, and on that date, she told other people, including her supervisor, Patrick Connelly, of the assault. Plaintiff continued to work until September 22, 2004 when, according to her, at the instruction of her physician, she stopped working. On October 5, 2004, plaintiff informed the Board, via letter from her attorney, that she had sustained a workplace injury and intended to file a claim for workers' compensation benefits. The nature and cause of her injury were not mentioned in that letter. By a separate letter dated October 5, 2004, plaintiff informed the police that she had been sexually assaulted.

On October 29, 2004, plaintiff filed an Employee's Claim Petition with the Division of Workers' Compensation (the Division). On November 30, 2004, the Board filed an answer in the Division, admitting that plaintiff was in its employ on the date alleged in the petition, but denying that the alleged injury arose out of or in the course of employment.

On December 6, 2004, plaintiff filed a notice of motion seeking permission to file a late tort claim notice pursuant to N.J.S.A. 59:8-9. The ninety-day period for the filing of a notice of claim, as required by N.J.S.A. 59:8-8, expired on October 18, 2004. Plaintiff argued to the trial court, and in the present appeal, that she substantially complied with the notice requirements of the Tort Claims Act because she gave oral notice of the incident to her supervisor, Connelly, and because she informed the Board in writing that she intended to file a claim petition. Alternatively, plaintiff contends that extraordinary circumstances excuse her failure to file a timely notice. See N.J.S.A. 59:8-9.

The motion judge rejected the substantial compliance argument, reasoning that oral notice is unacceptable and that the October 5 letter to the Board was vague in that it did not include the elements of a tort claims notice and only referred to a workers' compensation claim. In this case, the trial court properly concluded that plaintiff failed to substantially comply with the statutory content requirements of N.J.S.A. 59:8-4 since her letter only stated she suffered a workplace injury. Newberry v. Twp. of Pemberton, 319 N.J. Super. 671, 679-80 (App. Div. 1999). "At the very least in order to comply with N.J.S.A. 59:8-4c," plaintiff had to provide some indication to the Board that she had a tort claim for sexual assault against it. Id. at 680.

"The granting or denial of permission to file a late claim within the one year period is a matter left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof." Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988) (citations omitted). The motion judge rejected plaintiff's application for permission to file a late notice because extraordinary circumstances that would cause her to delay filing her claim were not present. Although the Legislature amended the Tort Claims Act in 1994 to require that a claimant meet a more demanding standard by showing "extraordinary circumstances," rather than "sufficient reasons," for late filing, that term was not defined. Lowe v. Zarghami, 158 N.J. 606, 626 (1999). This "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." Ibid. (citations omitted). See also Blank v. City of Elizabeth, 318 N.J. Super. 106, 110 (App. Div. 1999). In this case, the trial court determined that plaintiff failed to satisfy the statutory standard since she offered no extraordinary circumstances that would explain or excuse her failure to file a timely notice of claim. We perceive no abuse of discretion in that determination.

 
Accordingly, we affirm the January 21, 2005 order of the Law Division substantially for the reasons expressed by Judge Buchsbaum in his oral statement from the bench denying plaintiff's motion.

Affirmed.

N.J.S.A. 59:8-9 states:

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 reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.

We note a disparity between the date on the order - January 21, 2005 - and the date reflected on the cover sheet of the transcript of the continuation of the oral argument - January 25, 2005. The noted disparity is of no consequence to the disposition of this appeal.

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A-3167-04T1

January 25, 2006