ROBERT VOLKER v. OCEAN TOWNSHIP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0527-07T20527-07T2

ROBERT VOLKER,

Plaintiff-Respondent,

v.

OCEAN TOWNSHIP (OCEAN COUNTY),

Defendant,

and

OCEAN TOWNSHIP MUNICIPAL UTILITIES AUTHORITY,

Defendant-Appellant.

________________________________

 

Argued: September 24, 2008 - Decided:

Before Judges Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Ocean County, Docket No. L-2480-07.

Michael J. Gilmore argued the cause for appellant (Gilmore & Monahan, attorneys; Mr. Gilmore, on the brief).

Kathleen M. Dotoli argued the cause for respon dent (Kushinsky, Dotoli & Gans, attorneys; Ms. Dotoli, on the brief).

PER CURIAM

Defendant Ocean Township Municipal Utilities Authority (the MUA) appeals from an order entered on August 17, 2007, granting the motion of plaintiff Robert Volker for an extension of time to serve a notice of claim pursuant to N.J.S.A. 59:8-9 and to deem his notice of claim timely served. Because plain tiff failed to meet the prerequisites for serving a late notice of claim, we reverse.

The facts relevant to the issue before us were undisputed. Plaintiff was injured on August 25, 2006, as a result of a bicy cle accident in front of his house when his bicycle allegedly skidded on a patch of oil left on the roadway by the MUA during a pipe-replacement project. Plaintiff suffered a significant, extensive laceration to his scrotum with the entire left testi cle exposed. He was brought to the hospital on an emergent basis and underwent surgery the same day. The laceration was explored and the surgeon found that the laceration was "through the skin to the subcuticular layers with small islands of skin still attached as if a shearing injury had shredded the skin." Those "small islands of skin" were removed and the laceration was debrided. No additional findings were made and the lacera tion was closed with drains in place. Plaintiff remained in the hospital for three days, being discharged on August 28, 2006.

Plaintiff quickly retained counsel and signed medical release forms on September 12, 2006. That same day, his attor ney wrote to the municipal attorney advising him that the municipality was negligent in spilling oil on the street, which caused plaintiff's bicycle accident. Plaintiff's counsel asked the municipal attorney to consider her letter as a notice of claim. She also requested a copy of the police report that same day and wrote to the hospital and plaintiff's doctors seeking copies of his medical records.

On September 26, 2006, the municipal attorney advised plain tiff's counsel that she had to ask the municipal clerk for a notice-of-claim form, which she did the following week. After receiving the form, counsel sent it to plaintiff on October 24, 2006, with instructions to complete and return the form to her. On November 15, 2006, plaintiff signed and returned the notice-of-claim form and also executed a release of health-care infor mation to Scibal Associates, Inc. (Scibal), the insurance adjuster for the municipality. In the notice-of-claim form, plaintiff described those injuries he believed to be permanent as "frequent urge to urinate, incomplete flow, scrotum scarring (4 inches), disfigurement, asymmetrical testicles, internal pulling sensation, right wrist scar, road rash to right cheek, elbow and . . . shoulder, and chipped molar."

The next document in the record was created on March 9, 2007, when plaintiff's attorney sent the notice-of-claim form to Scibal together with a copy of the police report. Although that form required attachment of itemized bills for medical expenses, written reports of treating physicians, and a wage-loss verifi cation from plaintiff's employer, these documents were appar ently not sup plied at this time because plaintiff's attorney stated that she was "awaiting Dr. Feneran's complete file." Counsel then inquired whether Scibal would be handling the claims against the MUA. On March 22, 2007, Scibal wrote to plaintiff's counsel, confirm ing receipt of plain tiff's notice-of-claim form. However, the adjuster advised counsel that the MUA was a separate entity at the time of plaintiff's accident and was an insured member of the New Jersey Utility Authority Joint Insur ance Fund. She explained that plaintiff's counsel "would have to address the issue of a timely Notice of Claim with that entity . . . ."

Plaintiff spoke to his attorney's secretary on April 4, 2007, and sometime thereafter wrote to his attor ney, advising her that he had seen his physicians on three occasions in Sep tember, October, and November 2006. The letter indicates that during the November appointment, plaintiff's physician recom mended that he wait until March or April to give his injury time to heal before deciding whether he required further medical treatment. He also informed his attorney that he was still hav ing problems urinating, sex was difficult, and the cold weather was a problem, "due to size and effect."

On April 20, 2007, plaintiff's counsel corresponded with the MUA, enclosing a notice-of-claim form. She expressed that she believed that the claim was rightfully addressed to the munici pality, but wished to put the MUA on notice in the event discovery revealed that it had some liability.

On May 7, 2007, Scibal advised plaintiff's counsel that its March 7, 2007, denial of claim remained in effect. She also stated that "the Township had no constructive notice of an alleged oily substance at the loss site; thus affording it immunity," citing N.J.S.A. 59:4-3 and N.J.S.A. 59:3-2(d). On May 30, 2007, the municipal attorney advised plaintiff's counsel that the MUA had been dissolved in February 2007 and that the notice of claim was untimely and a nullity because it was filed more than ninety days after the August 25, 2006, accident.

About two months later, plaintiff filed a motion seeking leave to file a late notice of claim, which was made returnable on August 3, 2007. Plain tiff's counsel, not plaintiff, submit ted the only certification in support of the motion. She certi fied that she had advised plaintiff that it was not clear whether his injuries would give rise to a cause of action and that his medical records would be requested along with a notice-of-claim form. She explained that when plaintiff returned the notice-of-claim form to her, she had not yet received his medi cal records for review and, thus, could not assess the perma nency of his injuries. However, she stated that "[b]ased on [plaintiff's] complaints and the medical opinions, in February 2007, it became apparent that plaintiff's laceration may have resulted in causing sexual difficulties even after the wound had healed; specifically, he reported excessively prolonged inter course," although she acknowledged that his phy sicians had indi cated that plaintiff would not be fully healed until March or April 2007.

Counsel did not indicate what, if anything, she had done after September 12, 2006, to secure compliance with her requests for the hospital and physician records nor did she indicate when she actually received them. Counsel did not indicate how she learned at some unspecified time in February 2007 of plaintiff's complaints and of medical opinions that made it apparent that "plaintiff's laceration may have resulted in causing sexual dif ficulties even after the wound had healed." In fact, she did not indicate precisely what led her to file the notice of claim with Scibal on March 9, 2007, when she had still not received Dr. Feneran's complete file as she indicated in her transmittal letter to Scibal, although we might infer Scibal's March 7, 2007, denial of claim galvanized her into action. In fact, there is no evidence in the record that plaintiff and his coun sel ever communicated with each other between November 15, 2006, and April 4, 2007, when plaintiff called his attorney and spoke with her secretary. Counsel also did not explain why she waited a month to give notice to the MUA after Scibal advised that it could not accept service of the notice-of-claim form on its behalf. Finally, she did not explain why she waited over four months after the March 7, 2007, denial of claim before she filed the motion for leave to file a late claim.

The subject motion was decided without oral argument. The judge did not prepare a written decision at that time, but he placed the following statement on the August 17, 2007, record: "This is a motion. I've reviewed the documentation. It appears that there [are] exceptional circumstances concerning the inju ries of plaintiff. Therefore, I will grant the motion." The judge then provided a written decision that amplified his earlier insufficient oral decision.

In his February 6, 2008, written decision, the judge found that plaintiff's attorney received the completed, executed notice-of-claim from plaintiff by November 15, 2006. He then made the following findings of fact:

In February 2007, the Plaintiff sug gests that he became aware that the injuries may have caused him some sexual dysfunction and was advised by his physician that he would not be fully healed until March or April 2007.

On March 9, 2007, a Notice of Claim for Damages was sent to the adjuster for the [municipality], with corresponding medical documents.

Finally, on March 22, 2007, the adjust ing agency for [municipality] advised the Plaintiff that the claim should actually be sent to the [MUA]. This was completed on April 20, 2007. The Notice of Claim to the proper entity was served 127 days late.[]

The judge, ostensibly relying on Beauchamp v. Amedio, 164 N.J. 111 (2000), concluded that plaintiff's efforts to secure a proper claim form and to obtain his medical records constituted "an aggressive progression of undertak ings by the Plaintiff that reflects a diligent effort on her [sic] part to obtain the nec essary infor mation to provide a pub lic entity with the appropri ate notice." He also found that Scibal worked as an adjuster for both the municipal ity and the MUA and that the notice given to Scibal and the municipality was "sufficient notice to com mence whatever investigation they felt appropriate." Thus, he granted plaintiff leave to make a late claim upon the MUA.

The judge did not discuss the dissolution of the MUA in Feb ruary 2007, nor did he make any finding with respect to whether the April 20, 2007, service of the notice of claim was "sufficient notice" on the then-defunct MUA to commence an investigation. There also was no evidence in the record that the alleged oil spill in the roadway in front of plaintiff's home, as it existed at the time of the accident in August 2006, remained unchanged when notice was given to the MUA ten months later.

The New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, governs claims against public entities, including munici palities and municipal utility authorities, in this State. As a precondition to suit against a public entity, the TCA requires presentation of the claim in accordance with its provisions. N.J.S.A. 59:8-3. One of those provisions governs the time for presentation of a claim:

A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as pro vided in this chapter not later than the ninetieth day after accrual of the cause of action. . . . The claimant shall be forever barred from recovering against a public entity or public employee if:

 
a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9 . . . .

[N.J.S.A. 59:8-8.]

The stringency of this time requirement may, however, be relaxed in accordance with the TCA as follows:

A claimant who fails to file notice of his claim within 90 days as provided in sec tion 59:8-8 of this act, may, in the discre tion 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 seek ing leave to file a late notice of claim within a reasonable time thereafter; pro vided 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.

[N.J.S.A. 59:8-9 (emphasis added).]

Because a decision to permit a late claim is committed to the discretion of the court, we review the exercise of that dis cretion only for an abuse. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988); R.L. v. State-Operated Sch. Dist. of Newark, 387 N.J. Super. 331, 340 (App. Div. 2006); see gen erally Tarr v. Bob Ciasulli's Mack Auto Mall, 390 N.J. Super. 557, 563 (App. Div. 2007), aff'd, 194 N.J. 212 (2008). However, the exercise of such discretion is only triggered where the affiant has shown "suffi cient reasons constituting extraordinary circum stances for his failure to [timely] file." N.J.S.A. 59:8-9; Leidy v. County of Ocean, 398 N.J. Super. 449, 456 (App. Div. 2008).

The issue of whether the plaintiff's proofs satisfy the require ments of N.J.S.A. 59:8-9 presents a question of law sub ject to our ple nary review. See Ventola v. N.J. Veteran's Mem'l Home, 164 N.J. 74, 78 (2000) ("As a threshold requirement, [N.J.S.A. 59:8-9] requires a claimant seeking leave to file a late claim to establish 'sufficient reasons constituting extraordinary circumstances . . . .'"); S.E.W. Friel Co. v. N.J. Tpk. Auth., 73 N.J. 107, 118 (1977) ("[A] claimant may, in the discretion of the judge of the Superior Court and upon a showing of 'sufficient reasons'" be permitted to file notice.) (emphasis added); R.L., supra, 387 N.J. Super. at 340 (trial judge's dis cretion "limited to cases in which the claimant [first] shows 'sufficient reasons constituting extraordinary circumstances' for the delay and there is no 'substantial[] prejudice[]' to the public entity or employee"); Blank v. City of Elizabeth, 318 N.J. Super. 106, 110-11 (App. Div.) (discretion does not permit the court to ignore the req uisite statutory showing), aff'd as modified, 162 N.J. 150 (1999); Abel v. City of Atl. City, 228 N.J. Super. 360, 370 (App. Div. 1988), certif. denied, 114 N.J. 477 (1989); Lutz v. Twp. of Gloucester, 153 N.J. Super. 461, 468-69 (App. Div. 1977). We thus review the record to ascertain whether plaintiff made a sufficient showing to permit the judge in his discretion to grant leave to file a late claim. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

It is readily apparent that many of the judge's findings of fact had no support in the record. First, there was no compe tent evidence before the court respecting when plaintiff began to experience sexual dif ficulties and when he learned that his injury was permanent. The TCA requires that a motion seeking leave to file a late claim must be "supported by affidavits based upon personal knowledge of the affiant." N.J.S.A. 59:8-9. Here, there was no affidavit from plaintiff himself. Rather, his counsel certified to the relevant facts. We have long criticized the practice of attorneys certifying to facts related to them by their clients that are within the cli ent's primary knowledge, and thus objectionable hearsay. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 427 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004); Murray v. Allstate Ins. Co., 209 N.J. Super. 163, 169 (App. Div. 1986). We have rejected reliance on attorney certifications in applica tions for leave to file a late notice of claim under the TCA. S.P. v. Collier High School, 319 N.J. Super. 452, 465-66 (App. Div. 1999). As a consequence, the judge here should not have consid ered counsel's certified statements respecting plaintiff's sex ual difficulties and when he learned that his injury may be per manent. His findings in this respect are not supported by competent evidence in the record.

Second, there was no evidence supporting the judge's find ing that plaintiff's efforts to secure the proper claim form and obtain his medical records constituted "an aggressive progres sion of undertakings by the plaintiff." Plaintiff's counsel was advised on September 26, 2006, that she had to ask the municipal clerk for a notice-of-claim form, which she did the following week, and which she had in her possession by October 24, 2006 well within the ninety-day period. Additionally, the record is silent regarding plaintiff's efforts to obtain the medical records at any time after they were initially requested on Sep tember 12, 2006. Thus, the judge's determination that plaintiff made "a diligent effort . . . to obtain the necessary informa tion to provide a public entity with the appropriate notice" has no factual support in the record.

Last, the judge's finding that Scibal worked as an adjuster for both the municipality and the MUA was actually contradicted by the record. In response to plaintiff's counsel's inquiry in this respect, Scibal specifically advised her that she would have to give notice directly to the MUA because it was insured by the New Jersey Utility Authority Joint Insurance Fund. Thus, the MUA had no record notice of the claim until April 20, 2007, and could not have investigated it before that date.

The judge correctly observed that plaintiff com pleted and executed the notice-of-claim form and delivered it to his attorney on November 15, 2006; the claim form was sent to Scibal on March 9, 2007; that Scibal advised plaintiff's counsel on March 22, 2007, that the notice-of-claim form should be sent to the MUA; that the form was sent to the MUA on April 20, 2007; and that the notice given to Scibal was sufficient to commence an investigation. With these facts in mind, we must examine the record to determine whether there are exceptional circumstances concerning the plaintiff's injuries or otherwise that would support the judge's grant of leave to file late notice of claim.

Initially, we must ascertain the date on which plaintiff's claim accrued. Beauchamp, supra, 164 N.J. at 118 (holding that determination of the date of accrual is the first of three steps taken to decide whether late notice of claim should be allowed). "Accrual of the claim" pursuant to N.J.S.A. 59:8-9 is construed in accordance with the definition of that term in the TCA, Anaya v. Township of Vernon, 139 N.J. Super. 409 (App. Div.), certif. denied, 71 N.J. 494 (1976), which pro vides that "[a]ccrual shall mean the date on which the claim accrued and shall not be affected by the notice provisions contained herein." N.J.S.A. 59:8-1 (emphasis added).

As the Supreme Court observed, the TCA "does not define the date of accrual in any significant way," and thus we resort to private-sector law. Beauchamp, supra, 164 N.J. at 116. That law provides that a cause of action accrues upon the occurrence of "any wrongful act or omission resulting in any injury, how ever slight, for which the law provides a remedy." Ibid. (cita tions omitted). Although the discovery rule may toll the accrual of a cause of action, the Court firmly rejected Beauchamp's argument that her claim did not accrue until she obtained evidence of a permanent injury. Id. at 119.

The fact that Beauchamp was not yet pos sessed of evidence of the permanency of her injury "in no way affects the maintainabil ity of the action itself. It only limits the permissible extent of the recovery by eliminating one of the customary elements of common-law personal injury damages." Montag v. Bergen Bluestone Co., 145 N.J. Super. 140, 149 (Law Div. 1976).

[Id. at 119-20 (disapproving dictum in Ohl weiler v. Twp. of Chatham, 290 N.J. Super. 399 (App. Div. 1996), to the extent that it suggested otherwise).]

See also Lutz v. Sem cer, 126 N.J. Super. 288, 297 (Law Div. 1974), superseded by statute, N.J.S.A. 59:8-3, -8, L. 1994, c. 49, 2, 4, as recog nized in Serrano v. Gibson, 304 N.J. Super. 314, 315-16 (App. Div. 1997).

Plaintiff argues that he "did not have information yet that would amount to an accrual of his notice requirement." We understand this argument to be a contention that plaintiff was not required to give notice of claim until he learned that his injury was permanent. This is inconsistent with the plain lan guage of N.J.S.A. 59:8-1 that accrual "shall not be affected by the [TCA] notice provisions." Rather, plaintiff asserts the same argument, albeit in another guise, clearly rejected in Beauchamp, supra, 164 N.J. at 119-20. Notice must be given within ninety days of the accrual of the claim, N.J.S.A. 59:8-8, which occurs at the time of an initial injury caused by a wrong ful act. Beauchamp, supra, 164 N.J. at 121, 122 ("Although the full extent of an injury or loss may not be known, N.J.S.A. 59:8-4, the notice is triggered by the occurrence of injury," even if the injury is "a minor one."). Here, the cause of action accrued on August 25, 2006, when the accident happened and the laceration occurred.

We must next "determine whether a notice of claim was filed within ninety days," the second step in deciding an application for leave to file a late notice of claim. Beauchamp, supra, 164 N.J. at 118. Although plaintiff completed and signed a notice of claim on the eighty-second day after the accident, the claim form was not filed with the municipality or the MUA within the ninety-day statutory period prescribed by N.J.S.A. 59:8-9. Indeed, the MUA did not receive notice until 148 days after the expiration of that period.

Because the date of accrual and the failure to serve a notice of claim on the MUA within ninety days require plaintiff to secure leave to file a late claim, we must next "decide whether extraordinary circumstances exist justifying a late notice," Beauchamp, supra, 164 N.J. at 118-19, the third step in deciding whether plaintiff should be permitted to file a late notice of claim. In this respect, the TCA requires a claimant to show "sufficient reasons constituting extraordinary circum stances 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 seek ing leave to file a late notice of claim within a reasonable time thereafter." N.J.S.A. 59:8-9. Where the motion is not timely made, a claimant must at a minimum dem onstrate why he or she could not have moved within a reasonable time for leave to file a late notice. Wood v. County of Bur lington, 302 N.J. Super. 371, 380 (App. Div. 1997) (denying leave to file late notice in part because nine-month delay in filing motion was unexplained).

Here, the March 9, 2007, service of the notice-of-claim form on the municipality and the subsequent April 20, 2007, ser vice on the MUA were both null and of no effect because the plaintiff did not first seek leave to file a late notice of claim. See Priore v. State, 190 N.J. Super. 127, 130 (App. Div. 1983), overruled in part on other grounds by Moon v. Warren Haven Nursing Home, 182 N.J. 507 (2005). As a consequence, it is only the date of filing of the notice of motion that may be used to determine whether plaintiff has met his burden of proof under N.J.S.A. 59:8-9. We presume that the notice of motion was filed sixteen days before August 3, 2007, as required by Rule 1:6-3(a), which would have been July 18, 2007. Thus, we must examine the delay from the date of the accident on August 25, 2006, through July 18, 2007, a period of almost eleven months.

A showing of extraordinary circumstances is a "more demand ing" standard than the "sufficient reasons" test which existed until the TCA was amended in 1994. Lowe v. Zarghami, 158 N.J. 606, 625 (1999). The stat ute, however, does not "define 'extraordinary circumstances,' leaving to case-by-case determi nation the issue of whether that standard has been met." Blank, supra, 318 N.J. Super. at 110 (citing O'Neill v. City of Newark, 304 N.J. Super. 543, 553 (App. Div. 1997)).

The judge initially found that plaintiff's injuries consti tuted exceptional circumstances. In his written decision, he interpreted Beauchamp as permitting the late filing of a claim where a plaintiff does everything possible to protect a poten tial claim. He then concluded, without record support, that plaintiff made "a diligent effort . . . to obtain the necessary information to provide a public entity with the appropriate notice." Because he found no prejudice to the municipality or the MUA, he permitted the late filing of the notice of claim.

The judge misconceived the holding in Beauchamp. The Supreme Court only granted relief from the ninety-day notice provision because Beauchamp, who "did everything she could to protect a potential claim" by seeking immediate medical care and legal advice, "relied on legal advice that was derived from the confusion surrounding" the disapproved dictum in Ohlweiler. Beauchamp, supra, 164 N.J. at 122-23 (emphasis added). That reliance was an essential element to the Supreme Court's deter mination. Here, however, the language in Ohlweiler had been disapproved by the Beauchamp Court more than five years prior to this plaintiff's accident. His counsel's decision to withhold ser vice of the notice-of-claim form until she learned whether his injury was permanent could not have been based on "the confusion surrounding" that disapproved dictum.

We recognize, as did the judge on the motion, that, when ever possible, cases should be heard on their merits and that any doubts should be resolved in favor of permitting late notice. Lowe, supra, 158 N.J. at 629 (citation omitted). That preference, however, cannot trump the statutory requirements. In deciding whether sufficient reasons constituting extraordi nary circumstances exist, "courts consider a combination of fac tors." Ibid. (citing Lamb, supra, 111 N.J. at 149). "[B]ecause 'extraordinary circumstances' is an imprecise standard, each case will depend on its own circumstances." Ibid.

Extraordinary circumstances have been found where a plain tiff was incapacitated due to the severity of the injury, Maher v. County of Mercer, 384 N.J. Super. 182, 189-90 (App. Div. 2006); and where the plaintiff was justifiably unaware that the tortfeasor was a public employee, Lowe, supra, 158 N.J. at 630. On the other hand, extraordinary circumstances have not been found based on lack of knowledge respecting who owned the pipe in a public sidewalk when an inspection of the pipe readily revealed that it was an appurtenance to a water-supply system, Blank v. City of Elizabeth, 162 N.J. 150, 152-53 (1999); failure of a public entity to suggest that another public entity was responsible where the record was barren of any reasonable efforts undertaken by plaintiff to ascertain ownership, control and operation of the roadway, Leidy, supra, 398 N.J. Super. at 457, 461; delay in securing counsel to investigate the claim where the plaintiff was an attorney, Wood, supra, 302 N.J. Super. at 380; plaintiff's inattentive failure to file court documents on a religious holi day that was not a legal holiday, Epstein v. New Jersey, 311 N.J. Super. 350, 360 (App. Div.), certif. denied, 155 N.J. 589 (1998); and plaintiff's youth and ignorance of TCA notice requirements, Collier High Sch., supra, 319 N.J. Super. at 465-66. Even before the requirement to show "extraor dinary circumstances" was added to N.J.S.A. 59:8-9 in 1994, "sufficient reasons" were lacking where the claimant was ambivalent about pursuing the claim, Lutz, supra, 153 N.J. Super. at 467-68; where the claimant was ignorant of the sever ity of the injury, Semcer, supra, 126 N.J. Super. at 298; and where counsel was inadequate, Fuller v. Rutgers, The State Uni versity, 154 N.J. Super. 420, 424, 427 (App. Div. 1977), certif. denied, 75 N.J. 610 (1978).

Where no reasons are advanced for a failure to substan tially comply with the TCA notice requirements, a motion for leave to file a late notice of claim may be denied even though the motion with a fully compliant notice of claim was filed only six months after the accident. Newberry v. Twp. of Pemberton, 319 N.J. Super. 671, 674-75 (App. Div. 1999). Where a delay in filing the motion is unexplained, the motion may be denied. Leidy, supra, 398 N.J. Super. at 461 (eight-month delay); Epstein, supra, 311 N.J. Super. at 353, 358 (three-and-a-half-month delay in filing motion after the notice of claim was filed one day late); Wood, supra, 302 N.J. Super. at 380 (reversing order granting leave to file late claim where nine-month delay was unexplained and concluding that allowing the claim to proceed would render meaningless the requirement that extraordi nary circumstances be shown to justify delay in filing motion).

With these prior rulings in mind, we must determine whether, in light of all the factors present here, plaintiff was entitled to relief from the TCA's ninety-day notice provision. The only reasons advanced for withholding service of the com pleted and signed notice-of-claim form were outstanding medical records and the unresolved issue of permanency, although we note that plaintiff claimed a myriad of permanent injuries, including a four-inch scrotal scar, a wrist scar, and a broken molar in the claim form itself, which are cer tainly permanent injuries whether or not they would satisfy the TCA tort threshold. See N.J.S.A. 59:9-2(d).

As to the first reason, the claim form did not require inclu sion of the medical records, only itemized medical bills and a treating physician's report, but if none existed as of November 23, 2006, then that evidence certainly did not have to be attached. See Lamb, supra, 111 N.J. at 142 n.4 ("[N]otice of claim must contain, among other things, only a 'general descrip tion of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.'"); see also Guerrero v. City of Newark, 216 N.J. Super. 66, 72 (App. Div. 1987) (applying doctrine of substantial compliance to notice of claim requirements). In any event, there is no evidence of when the hospital records were received, when the phy sician's notes were obtained, or what efforts were made to promptly secure them. As to the second reason, the severity of an injury has no affect upon the notice provisions of the TCA. N.J.S.A. 59:8-1; Beauchamp, supra, 169 N.J. at 119-20. Thus, these two reasons do not constitute extraordinary circumstances.

Even had plaintiff established that there were sufficient reasons constituting extraordinary circumstances for withholding service of the notice-of-claim form prior to November 23, 2006, he did not meet his burden of proof with respect to the timeli ness of his motion for leave to file a late claim. His lack of knowledge respecting the involvement of the MUA is not an extraordinary circumstance. Blank, supra, 162 N.J. at 152-53. The municipality's failure to suggest that the MUA was involved cannot be considered an extraordinary circumstance where the record is barren of any reasonable efforts undertaken by plain tiff to ascertain the identities of all involved public entities. Leidy, supra, 398 N.J. Super. at 457, 461.

The initial denial of claim by Scibal on March 7, 2007, was not included in the record and there was no explanation respect ing the delay in moving to file a late claim as to the munici pality within a rea sonable time thereafter; there is no evidence of any actions taken between the execution of the claim form on November 15, 2006, and the service of the claim form on Sci bal on March 9, 2007; there is no explanation for the further one-month delay in service of the claim form on the MUA; and there is no explanation for the additional four-month delay in filing the motion for late service of the notice of claim. The absence of this evidence precludes an exercise of discretion to grant the motion for leave to file a late notice of claim. Leidy, supra, 398 N.J. Super. at 461; Epstein, supra, 311 N.J. Super. at 353, 358; Wood, supra, 302 N.J. Super. at 380.

This record compels us to conclude that the judge erred as a matter of law in granting plaintiff leave to file a late notice of claim. There is no record evidence to support his conclusion that the plaintiff was diligent in his efforts to secure the necessary information to provide to the public enti ties. Even if he had been diligent, the alleged uncertainty as to the permanency of his injuries was not, as a matter of law, a "sufficient reason[] constituting [an] extraordinary circum stance[]" under N.J.S.A. 59:8-9 that would justify giving late notice of a claim that accrued on August 25, 2006. Finally, plaintiff offered no reasons, much less "sufficient reasons con stituting extraordinary circumstances" under N.J.S.A. 59:8-9, justifying his eight-and-a-half month delay in filing a motion for leave to file a late claim. Thus, the statutory require ments were not as a matter of law established by any evidence before the court.

Reversed.

Such an order, "whether entered in the cause or by a separate action, shall be deemed a final judgment of the court for appeal purposes" pursuant to Rule 2:2-3(a).

Defendant Ocean Township (the municipality) did not appeal the judge's order and did not participate in this appeal.

The police report indicates that plaintiff stated he attempted to jump over an obstacle on his son's bicycle and crashed.

We note that plaintiff's counsel did not provide the informa tion required by N.J.S.A. 59:8-4(d) and (f). We need not address the issue of whether this letter would qualify as a notice of claim satisfying the requirements of N.J.S.A. 59:8-8 for presentation of claims because the municipality did not file an appeal. Cf. Newberry v. Twp. of Pemberton, 319 N.J. Super. 671, 679-80 (App. Div. 1999) (concluding that a notice which did not apprise the public entity of the asserted basis for liabil ity did not substantially comply with the notice requirements of N.J.S.A. 59:8-4(c)).

The March 7, 2007, denial of claim is not in the record on appeal. Presumably, Scibal took the position that either the attempted notice of claim served on the municipality's counsel was improper, some subsequent communication was not timely, or both. Otherwise, there would have been no reason to include the municipality as a defendant in this action.

This statement does not fulfill a judge's duty to make findings of fact and conclusions of law "on every motion decided by a written order that is appealable as of right." R. 1:7-4(a). "Failure to perform that duty constitutes a disservice to the litigants, the attorneys, and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quotations & citation omitted). Moreover, "[n]aked conclusions do not satisfy the purpose of R[ule] 1:7-4." Id. at 570.

It was actually 148 days late.

To demonstrate that plaintiff did not know that his injury was permanent until well after the ninety-day notice period, he at tached a report to his appellate brief that was from his treat ing physician dated February 7, 2008, one day after the judge's belated written decision. This report is not part of the record on appeal and will not be considered by us. See R. 2:5-4(a).

(continued)

(continued)

26

A-0527-07T2

January 28, 2009