HEIDI DOUGHERTY v. MICHAEL MANDEL, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6265-04T16265-04T1

HEIDI DOUGHERTY,

Plaintiff-Appellant,

v.

MICHAEL MANDEL, WAYNE TOWNSHIP

BOARD OF EDUCATION, FRANK

MARKOWICK, Principal of Wayne

Hills High School, RICHARD

LINKH and DR. MARIA NUCCETELLI,

Superintendents Of Schools for

Wayne Township, ANTHONY GONNELLA,

Acting Superintendent of Schools

for Wayne Township, NEW JERSEY

DEPARTMENT OF EDUCATION,

Defendants-Respondents.

______________________________________________________

 

Submitted May 9, 2006 - Decided May 23, 2006

Before Judges Coburn and Collester.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, L-1424-05.

Nowell Amoroso Klein Bierman, attorneys for

appellant (Michael J. Noonan, on the brief).

Nirenberg & Varano, attorneys for respondents

Wayne Township Board of Education, Frank

Markowick, Richard Linkh, Dr. Maria Nuccetelli,

and Anthony Gonnella (Sandra N. Varano and

Howard M. Nirenberg, on the brief).

Zulima V. Farber, Attorney General, attorney

for respondent New Jersey Department of Education

(Patrick DeAlmeida, Assistant Attorney General,

of counsel; Karen L. Jordan, Deputy Attorney General,

on the brief).

PER CURIAM

Plaintiff appeals from an order denying her motion for leave to file a late notice of claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 10A-2 (the "TCA").

On February 15, 2004, plaintiff attained the age of 18. Between April 1, 2004 and June 17, 2004 of her senior year at Wayne Hills High School, one of her teachers, defendant Michael Mandel, decided to involve her in an amorous relationship. She alleges that the relationship ultimately involved sexual acts short of intercourse but was nonetheless inappropriate given Mandel's status as her teacher. Her mother came across information indicating the nature of the relationship on June 17, 2004, and immediately reported the matter to the Wayne Hills Board of Education and its Superintendent of Schools, and to the Passaic County Prosecutor, whose investigation in June 2004 included interviews of, among others, plaintiff's mother; other female students; Mandel, who denied the more serious allegations while admitting the relationship; and plaintiff. At that time, plaintiff disclosed to the investigators the full nature and extent of Mandel's conduct, which we note were not sexual offences under the relevant provisions of the Criminal Code, N.J.S.A. 2C:14-1 to -9, because force was not used and plaintiff was a competent adult when all of the acts occurred.

On March 22, 2005, plaintiff and her parents first sought private legal advice. The lawyers filed the motion for permission to file a late notice of claim on March 31, 2005. The claim was supported by affidavits from counsel and plaintiff. Plaintiff swore that "from April 2004 until very recently, I believed that my relationship with Mr. Mandel was all my fault." She further said that since the relationship was discovered by her mother, she had felt "great humiliation and embarrassment," and had had "suicidal thoughts and great difficulty sleeping at night." Then she explained that about a week before the filing of the notice of motion, she spoke with a woman who had graduated from Wayne Hills High School in 2002. The woman told her that Mandel had engaged in sexual conduct with her during high school, following the same pattern he followed with plaintiff. That information convinced plaintiff that Mandel had "preyed" on and "seduced" her, and moved her to suggest to her parents that they retain an attorney to pursue a civil action.

In support of her motion, plaintiff also provided a report of Dr. Richard H. Arace, Ph.D., a licensed psychologist. He noted that during a treatment session on June 29, 2004, plaintiff informed Arace about her parents' discovery and her interview with the investigators from the prosecutor's office, but she did not tell him what she told the investigators. Among other things, she admitted that in earlier sessions she had
"omitted a lot" about her relationship with Mandel, and she said that "it got physical in the beginning of June," but "not sex.-I never had sex with him-he manipulated me." Arace said that in March 2005, plaintiff "began to show glimpses of recovery from the emotional trauma she had suffered." While she was unable to disclose sexual details during some of the following sessions, she told him that she decided to take action when she learned about Mandel's sexual prior but similar sexual relationship with the woman noted above. Arace then discussed the reluctance of victims of sexual abuse to report such incidents, concluding that this explained why she had not made the full disclosure to him until March 2005. What he did not address was the fact that plaintiff had in fact disclosed the full extent of the sexual relationship to the prosecutor's investigators in June 2004.

We are obliged to sustain a trial court's decision on a motion to file a late claim under the TCA absent an abuse of discretion reflecting a misconception of the applicable law. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988); Alk Assoc., Inc. v. Multimodal Applied Sys., Inc., 276 N.J. Super. 310, 314 (App. Div. 1994).

Plaintiff's proposed late notice alleged that she had been wrongly subjected to "sexual assault and harassment." The trial court's first task is determination of when the claim accrued. Beauchamp v. Amedio, 164 N.J. 111, 118 (2000). If the notice of claim has not been filed within ninety days of accrual, the trial court must then determine "whether extraordinary circumstances exist justifying a late notice." Id. at 118-19. Finally, the trial court must consider whether allowing a late filing would substantially prejudice defendants. Lamb, supra,, 111 N.J. at 146-47.

Relying on the discovery rule, Lopez v. Swyer, 62 N.J. 267, 272 (1973), plaintiff contends that her claim did not accrue until March 2005 when she learned that Mandel had carried on a similar affair with another student. The trial judge disagreed, finding that the claim accrued no later than late June 2004. Under Lopez, a claim does not accrue "until the injured party discovers, or by an exercise of reasonable diligence and intelligence, should have discovered that he [or she] may have a basis for an actionable claim." Ibid. Under Beauchamp, supra,, the discovery rule will not toll "once an injury is known, even a minor one . . . ." 164 N.J. at 122. Given the disclosures made by plaintiff to Arace on June 29, 2004, and her previous interviews with the prosecutor's investigators, we cannot say the trial judge erred in concluding plaintiff knew or should have known she had a cause of action by the end of June 2004.

Nor can we reject the trial judge's determination that plaintiff failed to show extraordinary circumstances justifying a late filing. Ambivalence about pursuing a claim is no excuse for failing to file a claim in a timely fashion. Lutz v. Township of Gloucester, 153 N.J. Super. 461, 466 (App. Div. 1977). And ignorance of the law is also no excuse. S.P. v. Collier High School, 319 N.J. Super. 452, 465 (App. Div. 1999). Although Arace explained why plaintiff might have been reluctant to bring an action, he did not opine that she was incompetent or psychologically unable to file a timely notice. Id. at 465. Moreover, by late June 2004, she had made a full disclosure to the prosecutor's investigators and had told Arace that she had been manipulated by Mandel. Therefore, we see no basis for interfering with the judge's exercise of discretion in denying the late notice.

For the first time on appeal, plaintiff argues that she was entitled to a testimonial hearing on equitable tolling. Since that argument was not made below, it need not be considered here. Moreover, there was no need for such a hearing since the judge accepted as true plaintiff's affidavit and Arace's report.

Affirmed.

 

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A-6265-04T1

May 23, 2006