PAULETTE FULTZ v. NEW JERSEY TRANSIT

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0656-07T30656-07T3

PAULETTE FULTZ,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT,

Defendant-Respondent.

________________________________________________________________

 

Submitted February 23, 2009 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1314-07.

Kochanski, Baron & Galfy, P.C., attorneys for appellant (Andrew M. Baron, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Cynthia Hall Miller, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff, Paulette Fultz, appeals from the April 25, 2007 order denying her motion to file a late notice of tort claim under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and from the August 24, 2007 order denying her motion for reconsideration. The trial court found that plaintiff failed to provide sufficient reasons constituting extraordinary circumstances to justify the late filing. We conclude that this determination constituted a mistaken exercise of discretion. Accordingly, we reverse and remand.

On December 6, 2006, while waiting at defendant's Rahway station for the 6:49 a.m. train to New York as part of her morning commute to work, plaintiff contends that the heel of her shoe got caught in a crevice in the platform, causing her to fall to the ground and sustain injuries. The platform was not staffed, as a result of which plaintiff could not report the incident to anyone at that time. She took the train to work and called defendant, reporting the incident and providing information. Two weeks later, she called again and spoke to the same person, repeating her report of the incident. By letter of December 18, 2006, defendant corresponded with plaintiff, acknowledging her telephone report with the claims department and furnishing her with a Notice of Claim. The letter advised that plaintiff was required to file the completed form within ninety days of the accident and that "[f]ailure to supply the information required in the time prescribed by the statute may result in your claim being forever barred."

At about the same time the letter was sent to plaintiff, the author of the letter called plaintiff and further discussed the incident with her. Plaintiff does not dispute receiving the letter or the claim form. She did not file the completed form within ninety days of her accident. She filed it, through counsel, on April 4, 2007, twenty-nine days past the ninety-day deadline.

On April 10, 2007, plaintiff moved for an order authorizing the late filing, supported by her certification and supplemental certification explaining the reasons. Plaintiff stated that upon receiving the letter from defendant containing the claim form, she "did not focus on the cover letter" because she "believed they were already aware of my claim through the three telephone conversations," and "[a]t no time during these conversations with New Jersey Transit Officials was I verbally told of the 90 day deadline." In January, plaintiff contacted the law offices of a Mr. Fenmore, a Rahway attorney, for potential representation. After several telephone calls to Mr. Fenmore's office, plaintiff was ultimately advised by his secretary that he was not interested in handling her case.

In late January, plaintiff met with her present counsel. The meeting was early in the morning before plaintiff had to go to work. Apparently, counsel was going to review the matter, and there was no extended discussion. Although plaintiff did not discuss it with the attorney, she was "leaving shortly" to travel to Ohio for several days to visit with her eighty-two-year-old mother, who was critically ill, and to participate, along with plaintiff's siblings, in end of life decisions. Plaintiff, who does not drive, was driven to Ohio for this purpose. She and her siblings made arrangements to transfer her mother from a hospital to a nursing home.

In the succeeding weeks, plaintiff's sister called her several times a day, updating her on their mother's condition and pressuring plaintiff to sign over their mother's house to the sister and to provide financial assistance for the nursing home expenses. At the same time, plaintiff continued working, but got behind in her work. Her work schedule involved twelve hour days, with her normal commute beginning at 6:30 a.m. and returning at 7:00 p.m. Plaintiff also got behind in her medical treatment, which included physical therapy, which she received during lunch hours. During this same time period, plaintiff learned that her son dropped out of college six months before his anticipated graduation. In addition to the great disappointment resulting from this news, plaintiff also realized a significant adverse financial consequence because her son's student loans, for which she was responsible, would now be accelerated.

All of these circumstances combined to cause plaintiff substantial emotional distress. She certified that she was taking 10 mg of Lexapro daily for anxiety and stress. She stated that, "[h]aving given notice to New Jersey Transit twice in December which was documented, I was unable to refocus on my case with [present counsel] until late March." At that time, the claim form was finally completed, signed and certified by plaintiff, and filed with defendant on April 4, 2007.

At the motion hearing on May 25, 2007, defendant conceded it would suffer no prejudice from the late filing. And, there has been no contention that the filing was not made within a reasonable time after expiration of the ninety-day deadline. The issue before the court was whether plaintiff made a sufficient showing of extraordinary circumstances. The judge was sympathetic to the personal problems plaintiff was experiencing and the stress she was under, but characterized the situation as "everyday stressors that we know -- ill parents, nuisance children -- I mean things that everybody has in their daily lives." The judge noted that defendant sent plaintiff the claim form and a letter telling her she was required to file it within ninety days of the accident. The judge also noted that this was not a situation where plaintiff had been in the hospital for an extended period of time or suffered "a psychotic episode." The judge denied plaintiff's motion.

Plaintiff moved for reconsideration. In support of the motion, plaintiff provided medical information, revealing that she suffered from post-traumatic stress disorder and depression, which existed prior to her accident, and for which she had been prescribed the Lexapro. A handwritten note from her physician, Dr. John D. Lupiano, was attached to plaintiff's certification. Dr. Lupiano confirmed his diagnosis and the prescription of Lexapro and stated that "[t]hese conditions interfere with her ability to complete paperwork in a timely fashion."

In her certification, plaintiff explained why she did not reveal this information sooner: "As a general nature, I am a proud and private woman who goes about my business. For those reasons, as well as embarrassment, I did not initially disclose to [my present attorney] or the Court the difficult emotional personal circumstances I was going through during the 90 day filing period." In light of the court's ruling denying her original motion because the stressors she was under were typical of ordinary life, plaintiff stated she was now submitting specific medical information, reluctantly and with embarrassment, but because it now seemed necessary to enable her to pursue her injury claim.

The matter came on for argument on July 20, 2007. After hearing oral argument, the judge acknowledged the significance of Dr. Lupiano's note. Wanting to give it further thought, the judge reserved decision. With leave of court, plaintiff's counsel filed a post-argument certification by Dr. Lupiano, expanding upon the matters set forth in his uncertified handwritten note previously filed. The doctor certified that plaintiff had been his patient for more than five years and that her post-traumatic stress disorder and depression existed prior to December 6, 2006. The doctor explained that when people with these conditions experience a stressful period in their lives, "their reaction to increased stress and anxiety can cause impaired concentration, inability to complete tasks such as routine paperwork[,] which can be manifested in any one of several areas including but not limited to work, home and social settings." He further explained that people with these conditions attempt to mask their symptoms, as a result of which "it is not obvious to the average layperson that such an individual is having difficulty in their life." Dr. Lupiano opined "within a reasonable degree of medical certainty that her symptoms and conditions which existed prior to December 6, 2006 were exacerbated by the personal problems she was going through."

The judge issued an oral decision on August 24, 2007. The judge did not reject the new information because it was available to plaintiff and could have been furnished with her original motion, but instead considered it in conjunction with the previously furnished information as if it "all came in at the same time." The judge equated Dr. Lupiano's certification to a sham affidavit as compared to plaintiff's prior certifications. See Shelcusky v. Garjulio, 172 N.J. 185, 201-02 (2002). In the judge's view, "He's saying she couldn't concentrate on paperwork, she's admitting she got the paperwork, she admits she just didn't read it carefully enough and she admits she was doing lots of other things at the time." The judge therefore discounted or disregarded Dr. Lupiano's certification under the sham affidavit doctrine and denied plaintiff's reconsideration motion.

We begin our analysis with consideration of the trial court's sham affidavit determination. The doctrine applies in the context of a summary judgment motion, where a party, in an effort to defeat summary judgment by raising a genuine issue of material fact, submits an affidavit contradicting that party's own deposition testimony. An evaluative function is required: "When not applied mechanistically to reject any and all affidavits that contain a contradiction to earlier deposition testimony, the doctrine requires a court to evaluate whether a true issue of material fact remains in the case notwithstanding an affiant's earlier deposition testimony." Id. at 201. The doctrine is thus limited: "Courts should not reject alleged sham affidavits where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement." Id. at 201-02.

The trial judge in this case applied this doctrine by analogy in comparing Dr. Lupiano's certification to plaintiff's certifications. The judge found that they were fatally contradictory. We do not agree. The apparent contradiction emanating from plaintiff's earlier silence regarding her underlying and longstanding psychological conditions was adequately explained. She was embarrassed to disclose it to her attorney or the court, and she did not know it was important to this application.

Further, plaintiff's description of the events during the critical ninety-day period and Dr. Lupiano's description of the effects of plaintiff's psychological conditions under the stressful circumstances she faced were not patently and sharply contradictory. We believe they are reconcilable. How much stress plaintiff was reasonably able to endure, based upon the totality of the circumstances superimposed on her underlying conditions, is not subject to precise measurement. That she did not read carefully the letter she received from defendant, which was the only source of information to her about the ninety-day filing requirement, while at the same time continuing to work, tend to her family problems with her ailing mother, and her medical treatment and problems with her son's situation, is not necessarily inconsistent with Dr. Lupiano's statement that impaired concentration and inability to complete routine tasks are a consequence of her underlying conditions. That she could do some things satisfactorily but not others is not contradicted by Dr. Lupiano's certification and is not inconsistent with human experience.

Finally, in support of her original motion, plaintiff disclosed that she was taking Lexapro for anxiety, but she did not elaborate further. Thus, Dr. Lupiano's certification provided reasonable clarification of plaintiff's earlier statement. Therefore, we conclude that Dr. Lupiano's certification should have been considered in the overall evaluation of plaintiff's motion.

The term "extraordinary circumstances" in N.J.S.A. 59:8-9 is not defined. Our Supreme Court has succinctly stated the criteria for judicial determination of whether sufficient reasons have been shown to meet the standard:

The notice provisions of the Tort Claims Act were not intended as "a trap for the unwary." Murray v. Brown, 259 N.J. Super. 360, 365, 613 A.2d 502 (Law Div. 1991). "Generally, we examine 'more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application.'" Feinberg, 137 N.J. at 135, 644 A.2d 593 (quoting S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107, 122, 373 A.2d 364 (1977)); Randazzo v. Township of Washington, 286 N.J.Super. 215, 668 A.2d 1083 (App. Div. 1995). Not any one factor constitutes "sufficient reasons," but courts consider a combination of factors. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 149, 543 A.2d 443 (1988). Likewise, because "extraordinary circumstances" is an imprecise standard, each case will depend on its own circumstances.

[Lowe v. Zarghami, 158 N.J. 606, 629 (1999).]

Applying these principles to the case before us, all of the circumstances must be considered in combination. Plaintiff suffered from documented underlying psychological conditions, for which she was under treatment for an extended period of time before this accident. A number of circumstances converged at about the time of the accident which, in combination, caused substantial emotional distress to plaintiff, which was superimposed on her underlying condition. Medical documentation was provided establishing that the underlying condition was exacerbated and the result was a diminished capacity to concentrate and properly complete tasks.

Notably, plaintiff was diligent in verbally reporting the accident to defendant, in seeking medical treatment for her alleged injuries, and in promptly seeking legal representation. She was not dilatory in pursuing her claim. Her failure to realize the importance of timely filing a written notice of claim, under all of the circumstances, is consistent with Dr. Lupiano's medical opinion.

What constitutes a sufficient showing of exceptional circumstances is indeed an imprecise standard that must be determined on a case-by-case basis. Although any one factor upon which plaintiff relies would be insufficient standing alone, all factors must be considered in combination.

The granting or denial of a motion to file a late claim is a matter left to the sound discretion of the trial court, which we will not disturb on appeal in the absence of a showing of a mistaken exercise of discretion. Lamb, supra, 111 N.J. at 146. However, our review is more stringent in cases in which leave to file a late claim has been denied than in those in which it has been granted, "to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application." Lowe, supra, 158 N.J. at 629. In addition to all of the circumstances personal to plaintiff, it is also noteworthy that defendant will suffer no prejudice from the late filing, and that the filing was within a very reasonable time (less than one month) beyond the expiration of the ninety-day deadline.

Although the question presented here is a close one, any doubt should be resolved in favor of allowing the application. We have concluded that the rejection or substantial discounting of Dr. Lupiano's certification was error. The information in that certification tips the scales in plaintiff's favor. Considering all of the circumstances, including Dr. Lupiano's medical information and opinion, we conclude that denial of plaintiff's motion to file a late claim was a mistaken exercise of discretion.

Reversed and remanded.

Although not certified to by either plaintiff or Dr. Lupiano, from correspondence in the record and colloquy before the trial court, it appears that plaintiff's psychological conditions may have emanated from the World Trade Center attacks of September 11, 2001.

(continued)

(continued)

13

A-0656-07T3

 

March 12, 2009