MARY DiNARDO v. THE CITY OF JERSEY CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0781-10T3

MARY DiNARDO, individually, MARY

DINARDO as Guardian ad litem for,

GWENDOLYN DiNARDO, a minor child,

MARC ANTHONY DiNARDO, II, a minor

child, and ELLA DINARDO, a minor

child, and MARY DINARDO as

Administratrix of the ESTATE OF

MARC ANTHONY DiNARDO,

Plaintiff-Appellant,

v.

THE CITY OF JERSEY CITY,

Defendant-Respondent.

____________________________________

August 10, 2011

Argued May 31, 2011 - Decided

Before Judges C.L. Miniman and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3406-10.

D. Gayle Loftis argued the cause for appellant.

Michael Dougherty, Assistant Corporation Counsel, argued the cause for respondent (William Matsikoudis, Corporation Counsel, attorney; Mr. Dougherty, on the brief).

PER CURIAM

Plaintiff is the widow and administratrix of the estate of Jersey City Police Detective Marc Anthony DiNardo, who was fatally wounded in the line of duty. She appeals from the August 30, 2010 order of the trial court denying her motion to file a late notice of tort claim against defendant pursuant to the Tort Claims Act, N.J.S.A. 59:8-1 to -11 (TCA). We affirm.

On July 16, 2009, Detective DiNardo was shot while attempting to apprehend a suspect in an apartment building in Jersey City. On July 21, 2009, he was declared brain dead and removed from life support. In addition to plaintiff, he is survived by three young children.1

On June 23, 2010, plaintiff moved for leave to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9. She certified that following her husband's death she was in a state of shock and "an extreme state of grief[,]" and was "in a fog and subject to constant unwanted media attention while trying to keep [her] children and [her]self from falling completely apart." Plaintiff documented the frequent therapy sessions she and the children attended, as well as the various emotional and medical problems the children developed as a result of their father's death.

Plaintiff further certified that starting in "late August or early September 2009," she attempted to obtain a copy of the investigative report of her husband's death from various members of the police department; her efforts, however, were unsuccessful. "As time passed[,]" plaintiff "began to have questions as to whether or not [her] husband had been properly trained," and whether proper procedures had been followed and proper equipment issued to the responding officers; she also "began to question the decision to enter the apartment in such an aggressive way."

Plaintiff was unaware that, should she have a tort claim based on any of these concerns, she had to meet a time limit "to give notice of such claim." As of the filing of her motion, plaintiff had still not received the investigative report she sought. She asserted that her requests for that investigative report should be considered as substantial compliance with the TCA's notice requirements.

Defendant certified in opposition that in the months following plaintiff's husband's death, she attended and participated in a number of public events including: "participation in a blood drive" in September 2009; "participation in the Jersey City Heritage Parade, which honored [her husband] in August"; and attendance at charity events in October and December 2009. Based on these activities, defendant asserted that "despite the significant emotional effect of the loss of her husband, . . . plaintiff was not incapacitated or otherwise prevented by her loss, from presenting a written [n]otice of [c]laim, if she had that intention within the statutory period."

Judge Maurice J. Gallipoli heard oral argument on August 27, 2010, and issued a written decision and order denying plaintiff's motion on August 30, 2010. First, the judge found that plaintiff's requests for the police department's investigative report did not constitute substantial compliance with the requirements of N.J.S.A. 59:8-4, which sets forth the required contents of a tort claims notice, including:

a. The name and post office address of the claimant;

b. The post-office address to which the person presenting the claim desires notices to be sent;

c. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;

d. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;

e. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and

f. The amount claimed as of the date of presentation of the claim including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.

[N.J.S.A. 59:8-4.]

The judge stated that the notice requirement of the TCA

serves four goals: (1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the [public entity] in advance as to the indebtedness or liability that it may be expected to meet.

The judge concluded that to accept plaintiff's position that her requests for the investigative report constituted substantial compliance with the TCA "would be to pay lip-service to the notice requirement . . . and the goals which such requirement was intended to achieve." Not only were her requests oral, made in telephone conversations with members of the police department, but they also "f[e]ll far short of imparting the requisite information to [defendant] vis- -vis a potential claim . . . ."

The judge distinguished the cases upon which plaintiff relied to support her claim of substantial compliance, noting that all of those cases "discusse[d] substantial compliance only after some form of a written notice had been given to the public entity." In sum, the judge concluded that "it cannot reasonably be said that [p]laintiff's oral communication to and with the [p]olice [d]epartment alerted the [c]ity that . . . [she] was contemplating filing a claim against it and members of the [d]epartment."

The judge then turned to plaintiff's claim that "extraordinary circumstances" warranted the late filing of her claim notice under N.J.S.A. 59:8-9, which provides in pertinent part:

A claimant who fails to file a notice of h[er] 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 h[er] claim provided that the public entity . . . has not been substantially prejudiced thereby. Application to the court . . . shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for h[er] failure to file [a timely] notice of claim . . . .

The judge noted that plaintiff's claim of extraordinary circumstances was

based [(1)] on her lack of knowledge as a layperson, before consulting her attorney, of the ninety[-]day notice requirement of the TCA, [(2)] on her grief following her husband's tragic death, and [(3)] upon the alleged "stonewalling" by the [p]olice [d]epartment in its refusal to furnish her with the investigative report of the events of July 16, 2009.

The judge concluded that to recognize the first claim as an extraordinary circumstance "would be to render the ninety[-]day notice requirement of the TCA meaningless and a virtual nullity." He rejected plaintiff's second claim noting that "[t]o hold otherwise would be to create an exception which would swallow the ninety[-]day notice requirement in virtually all TCA claims involving serious injury to the claimant and/or death to a family member."

Acknowledging that plaintiff "suffered emotional distress as a result of her husband's death and the tragic circumstances with which she was unexpectedly confronted," the judge nonetheless concluded that the record did not support "a finding that [p]laintiff's emotional distress was so severe and so prolonged that it totally incapacitated her from taking such action as was required to preserve the claim which she now seeks permission to prosecute." The judge referred to defendant's opposition papers documenting the various public events plaintiff attended in the months following her husband's death; this included a newspaper article of October 5, 2009, recounting plaintiff's attendance at an event where she received a $10,000 college scholarship fund for her children, and at which plaintiff commented that she had not yet received her first pension check since her husband's death two months earlier and that she thought that first check "should have been expedited." The judge noted that "[s]uch a statement simply fortifie[d his] determination that [p]laintiff was not prevented by emotional distress from the timely filing of a notice of claim."

Regarding plaintiff's "stonewalling" claim, the judge noted that she had submitted a proposed "Notice of Claim" with her motion, which had been "prepared without the benefit of the investigative report[,]" leading him to conclude that "presumably the same Notice of Claim could have been prepared long before it was and without the benefit of the investigative report, the absence of which is claimed to be a predicate for the grant of a filing extension based on extraordinary circumstances."

The judge, therefore, concluded that plaintiff had failed to demonstrate either substantial compliance or extraordinary circumstances warranting the relief sought. Based on those determinations, the judge found it unnecessary to address the issue of whether defendant had been "substantially prejudiced." N.J.S.A. 59:8-9.

On appeal, plaintiff contends that the judge abused his discretion in minimizing the evidence of her emotional distress and the "stonewalling tactics" of the police department. Having reviewed these contentions in light of the record and the controlling legal principles, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in Judge Gallipoli's written decision of August 30, 2010; we are satisfied those reasons are based on "findings of fact . . . adequately supported by [the] evidence." R. 2:11-3(e)(1)(A). We add only the following brief comments.

Pursuant to N.J.S.A. 59:8-9, the decision whether to grant a motion to file a late notice of claim rests within the sound "discretion of a judge of the Superior Court." Such a decision "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). Here, "[u]nder the totality of the[] circumstances, we cannot conclude that the [j]udge abused h[is] discretion." R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006). The judge duly "consider[ed] the collective impact of the circumstances offered as reasons for the delay" in this case, ibid., and properly concluded that plaintiff failed to demonstrate either substantial compliance or extraordinary circumstances to warrant relaxation of the TCA's notice requirements.2

Affirmed.

1 We summarize the pertinent factual background from the motion papers.

2 While plaintiff's motion was pending, the judge requested the parties to address the issue of whether the Workers' Compensation bar in N.J.S.A. 34:15-8 precluded plaintiff's tort claim. The judge noted that he would consider this issue as "incidental to the pending motion." In his decision, the judge concluded that "even if the late filing of a notice of claim was allowed, ultimately the claim . . . would be dismissed as being barred by the Workers' Compensation Act." As we have concluded that the judge properly denied plaintiff's motion on the basis of the TCA, we need not address this issue.