LUIS VEGA v. THE CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1749-10T3

LUIS VEGA,

Plaintiff-Respondent,

v.

THE CITY OF NEWARK,

Defendant-Appellant,

and

STATE OF NEW JERSEY,

Defendant-Respondent.

__________________________________________________

Argued May 10, 2011 Decided June 30, 2011

Before Judges Graves and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8010-10.

Gary S. Lipshutz, Assistant Corporation Counsel, argued the cause for appellant (Anna P. Pereira, Corporation Counsel, attorney; Mr. Lipshutz, on the brief).

Kenneth S. Javerbaum argued the cause for respondent Luis Vega (Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, attorneys; Mr. Javerbaum, on the brief).

Karen L. Jordan, Deputy Attorney General, argued the cause for respondent State of New Jersey (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Jordan, on the brief).

PER CURIAM

Defendant City of Newark (Newark) appeals from the October 29, 2010 order of the Law Division that granted plaintiff, Luis Vega, leave to file a late notice of claim under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the TCA). We have considered the arguments raised in light of the record and applicable legal standards. We affirm.1

Plaintiff was seriously injured in an automobile accident on Routes 1 & 9 in Newark during the early morning hours of February 6, 2010, when the car he was driving struck a vehicle driven by Rolondo N. Ibarra-Frere. Ibarra-Frere, who was subsequently charged with driving while intoxicated, had stopped his car in the left lane of travel without any lights or warning signals. Plaintiff had to be extracted from his car and suffered traumatic brain injury and fractures of his left arm that required repeated surgeries. He remained in a coma for some time and required significant post-accident rehabilitation. Plaintiff's passenger, Jeffrey Lopez, was killed in the accident, and, as a result, the Essex County Prosecutor's Office commenced a criminal investigation.

Plaintiff did not serve Newark with a notice of tort claim within the time required by the TCA. See N.J.S.A. 59:8-8 ("A claim relating to a cause of action for death or injury or damage to person . . . shall be presented . . . not later than the ninetieth day after accrual of the cause of action."). On September 23, 2010, plaintiff filed a motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9.

In support of the motion, plaintiff's counsel certified that approximately one month after the accident, he was contacted by plaintiff's cousin, Edna Pavan, who resided in Florida but who was in New Jersey visiting plaintiff. Plaintiff was still in a coma, and Pavan asked counsel to obtain a copy of the police report and inquire as to insurance coverage on the Ibarra-Frere vehicle. On April 13, 2010, counsel sent a letter of representation to State Farm Insurance, the carrier covering the Ibarra-Frere car.

In attempting to gather information from the police department, counsel was directed to the Prosecutor's Office and contacted the assistant prosecutor in charge of the investigation. He was advised that because the matter was to be presented to the Essex County grand jury, no information or reports would be released. Counsel was able to obtain, however, a redacted copy of the original police report listing only the names and addresses of the drivers and owners of the vehicles.

On May 12, counsel met with plaintiff, his mother, and a Spanish translator at the JFK Hartwyck Rehabilitation Center in Edison. Plaintiff was still unable to walk, his speech was impaired and his memory was limited. Counsel was satisfied, however, that plaintiff was sufficiently capable of retaining him, and, a retainer agreement was executed that day.

Counsel certified that he continued to conduct an investigation of the accident. He obtained a copy of a newspaper article that appeared in the Star Ledger on February 6 from plaintiff's relatives.2 The article revealed that a witness, Nelson Letra, had seen the Ibarra-Frere vehicle "'weav[e] all over the road'" and stop suddenly in the left lane. Letra called 9-1-1 at approximately 2:55 a.m. to report his observations, and, when no police responded to the scene, Letra claimed to have made a second call to 9-1-1 four minutes later. There was no police response prior to plaintiff's accident.

Counsel certified that he submitted a document request to Newark to obtain the 9-1-1 call logs and verify Letra's comments to the press, but he was unable to obtain them due to the prosecutor's investigation. He served similar information requests upon the State Police and the Port Authority Police and had not obtained any response from either agency.

Lastly, counsel cited our recent decision in Massachi v. City of Newark Police Dep't, 415 N.J. Super. 518 (App. Div. 2010) (Massachi II). He contended that our decision held "there is no longer an absolute immunity for 911 dispatcher[s] pursuant to N.J.S.A. 52:17C-10." In short, "[b]ased upon the unsubstantiated witness statements of Mr. Letra and the newly decided Massachi decision," counsel believed that plaintiff "may have a potential claim against the 911 dispatchers related to the accident."

Newark opposed plaintiff's motion. First, it argued that plaintiff was aware of the factual basis for his alleged claim on the very day of the accident via the Star-Ledger report of Letra's claims. Second, Newark contended that our earlier reported decision in Massachi v. AHL Servs. Inc., 396 N.J. Super. 486, 507 (App. Div. 2007) (Massachi I), certif. denied, 195 N.J. 419 (2008), held that 9-1-1 operators did not enjoy absolute immunity under the TCA. Therefore, plaintiff could not argue that there had been a change in the state of the law regarding Newark's potential liability.

In a written opinion that accompanied his order, the Law Division judge concluded that plaintiff's physical and neurological injuries were significant and "prevent[ed] him from retaining counsel." As a result, plaintiff demonstrated "'sufficient reasons constituting extraordinary circumstances' for his failure to timely file a late notice of claim." N.J.S.A. 59:8-9. The judge further determined that Newark had not suffered substantial prejudice by the late filing because it "kn[ew] about the accident since it occurred, and . . . anticipated litigation would arise from th[e] occurrence." Lastly, the judge concluded that plaintiff had moved within a reasonable time for leave to file his late notice of claim given the recent decision in Massachi II. He entered the order under review and this appeal followed.

It is well-settled that after expiration of the ninety-day period set forth in N.J.S.A. 59:8-8, a plaintiff may seek leave of court to file a late notice of claim but must do so within one year of the accrual of the claim. See N.J.S.A. 59:8-9. Such a request may be granted only if a plaintiff demonstrates "sufficient reasons constituting extraordinary circumstances for his failure to file [a timely] notice of claim . . . or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter[.]" Ibid. (emphasis added).

In considering a plaintiff's request to file a late notice of tort claim, "a sequential analysis must be undertaken." Beauchamp v. Amedio, 164 N.J. 111, 118 (2000).

The first task is always to determine when the claim accrued. The discovery rule is part and parcel of such an inquiry because it can toll the date of accrual. Once the date of accrual is ascertained, the next task is to determine whether a notice of claim was filed within ninety days. If not, the third task is to decide whether extraordinary circumstances exist justifying a late notice.

[Id. at 118-19.]

"Once a claim accrues and the ninety day period has elapsed, the only exception to the notice requirement is where extraordinary circumstances exist that justify late filing." Id. at 123.

We recently noted that "the decision to grant a plaintiff permission to file late notice of a tort claim is a matter left to the sound discretion of the trial court, [though] this discretion is limited to cases in which the claimant's affidavit shows sufficient reasons constituting extraordinary circumstances for the delay and there is no substantial . . . prejudice . . . to the public entity or employee." Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 456 (App. Div. 2008)(citations and quotations omitted).3 "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 v. Dep't of Envtl. Prot., 137 N.J. 126, 134 (1994) (quotation omitted); accord Lowe v. Zarghami, 158 N.J. 606, 629 (1999).

The TCA does not define what constitutes "extraordinary circumstances," leaving "for a case-by-case determination . . . whether the reasons given rise to the level of 'extraordinary' on the facts presented." Lowe, supra, 158 N.J. at 626 (citing Allen v. Krause, 306 N.J. Super. 448, 455 (App. Div. 1997)). The judge may consider a "combination of factors" in determining whether plaintiff has demonstrated "extraordinary circumstances." Id. at 629. As we recently noted, even if the reasons suggested for a plaintiff's delay "when offered individually, were inadequate, a judge must consider the collective impact of the circumstances offered." R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006).

In this case, Newark essentially conceded at oral argument before us that plaintiff demonstrated "extraordinary circumstances" for the delay in failing to file a notice of claim during the first ninety days following the accident. Independently, we would agree that plaintiff's significant physical and cognitive limitations resulting from the accident excused his failure to file a notice of claim by May 6, 2010. See, e.g., Maher v. Cnty. of Mercer, 384 N.J. Super. 182, 189-90 (App. Div. 2006) (finding that the plaintiff's initial hospitalization, induced coma, and repeated hospitalizations demonstrated extraordinary circumstances).

However, by May 12, 2010, plaintiff had retained counsel, and Newark's essential argument is that plaintiff's failure to file his motion prior to September 2010 was unreasonable and not otherwise excused by extraordinary circumstances. In this regard, Newark contends that plaintiff's counsel could have obtained a copy of the Star-Ledger's report of the accident, including Letra's assertion that he called 9-1-1 twice with no police response, on the day of the incident. Therefore, it was unreasonable for counsel to delay until September, four more months after he was retained, to bring the motion for leave.

Initially, we agree with Newark that the motion judge's characterization of our decision in Massachi II as "a change in the law" so as to excuse counsel's obligation to file a motion for leave was misplaced. In our view, our decision in Massachi I clearly placed all public entities and potential claimants on notice that liability for the negligence of 9-1-1 operators may not be immunized under the TCA. See Massachi, supra, 396 N.J. Super. at 490 (holding that N.J.S.A. 59:5-4 "does not immunize 9-1-1 operators and police dispatchers from the results of their negligently executed ministerial duties").

We disagree, however, that the judge mistakenly exercised his discretion by concluding the four-month delay in seeking leave was reasonable. Newark likens the delay in this case to that which we found unreasonable, for example, in Wood v. Cnty. of Burlington, 302 N.J. Super. 371, 378 (App. Div. 1997)(plaintiff's unexplained delay of nine months was deemed unreasonable), and Leidy, supra, 398 N.J. Super. at 462 (plaintiff's explanation for an eight-month delay before filing the motion was inadequate).

In this case, however, counsel attempted to ascertain whether Letra's comments to the Star Ledger were in fact true, that is, whether Letra actually made the calls he professed to have made to Newark's 9-1-1 operator. That was the only basis for any potential claim against Newark. Counsel served requests for the information upon Newark and the various police agencies in an attempt to verify Letra's claims. These requests were, however, universally denied as a result of the ongoing criminal investigation by the prosecutor's office. Indeed, when plaintiff filed his motion, no information corroborating Letra's account had in fact been obtained. Out of an abundance of caution, however, plaintiff moved to file a late notice of claim, fully recognizing that the bona fides of a reasonable claim of liability remained an open question.

We do not suggest that the circumstances presented here amount to an attempt by the public entity to obscure its identification as a potential party defendant. See, e.g., Leidy, supra, 398 N.J. Super. at 457-60 (discussing cases involving the public entity's attempt to mislead, thwart, or otherwise obscure the plaintiff's investigation of potential liability). However, in our view, plaintiff diligently attempted to ascertain whether a bona fide cause of action existed and moved for leave to file a late notice of claim within a reasonable time after retaining counsel. Under the totality of circumstances presented, we cannot conclude that the motion judge mistakenly exercised his discretion in permitting plaintiff to file his late notice of claim upon Newark.

A

1 The order under review also permitted plaintiff to file a late notice of claim against the State of New Jersey. However, at oral argument before us, plaintiff acknowledged that he failed to properly serve the State with his motion and also conceded that he has no viable claim for liability against the State. Therefore, we affirm only that portion of the Law Division's order permitting the filing of a late notice of claim against Newark.

2 It is unclear from his certification when counsel became aware of the article and when he obtained a copy.

3 Newark has not asserted that it was substantially prejudiced by plaintiffs' delay in filing a notice of claim.