NATALYA A. STAROSTENKO v. THOMAS H. GODFREY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5342-09T3

NATALYA A. STAROSTENKO,

Plaintiff-Respondent,

v.

THOMAS H. GODFREY,

Defendant.

______________________________________________________________

May 10, 2011

Argued February 1, 2011 - Decided

Before Judges Graves and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

L-2520-2010.

Alex Lyubarsky argued the cause for appellant

New Jersey Turnpike Authority (Wilentz, Goldman

& Spitzer, P.A., attorneys; Mr. Lyubarsky, of

counsel and on the brief).

Frederick E. Gerson argued the cause for

respondent (Feitlin, Youngman, Karas &

Youngman, LLC, attorneys; Mr. Gerson, on

the brief).

PER CURIAM

The New Jersey Turnpike Authority (the Turnpike Authority), appeals from an order denying its motion to vacate an order granting plaintiff Natalya Starostenko permission to file a late Notice of Tort Claim pursuant to N.J.S.A. 59:8-9. For the reasons that follow, we reverse.

On October 30, 2009, plaintiff was involved in an automobile accident with a vehicle driven by defendant Thomas Godfrey. The accident occurred on the Garden State Parkway, which is controlled, maintained, and operated exclusively by the Turnpike Authority. See N.J.S.A. 27:23-43 (stating that the Turnpike Authority "is hereby authorized to construct, maintain, improve, manage, repair and operate a project known as the 'Garden State Parkway'").

The police report completed in connection with plaintiff's accident stated that the vehicle operated by Godfrey "was registered to a company performing roadway construction on the [Garden State] Parkway which had been given permission by the N.J.T.A. to use the center 'cut-throughs' in the roadway." Based on the police report, plaintiff's attorney believed that the "N.J.T.A." was a potential defendant, and a notice of claim was served upon New Jersey Transit (NJT) within ninety days of the October 30, 2009 accident as required by N.J.S.A. 59:8-8. However, in an email dated February 8, 2010, NJT advised plaintiff's attorney that "N.J.T.A." referred to the New Jersey Turnpike Authority and there was "no evidence to implicate NJ Transit" because "NJ Transit does not have the authority over public roadways and therefore would not have given a third party permission to utilize the 'cut throughs' on the roadway." Plaintiffs claim for damages accrued on October 30, 2009, the date of the accident. She was therefore required, under N.J.S.A. 59:8-8, to file her notice of claim with the Turnpike Authority on January 28, 2010. On February 23, 2010, plaintiff filed a motion for leave to file a late notice of claim on the Turnpike Authority. In a letter memorandum in support of plaintiff's motion, her attorney stated that because "the accident occurred on the Garden State Parkway and not the New Jersey Turnpike, it was presumed that N.J.T.A. referred to the New Jersey Transit Authority." The court entered an order on April 1, 2010, granting plaintiff's motion. The order stated that the motion was "unopposed."

After the April 1, 2010 order was served on the Turnpike Authority, its attorney filed a motion to vacate the order and to deny plaintiff's motion. In a supporting certification, the Turnpike Authority's attorney stated that plaintiff's motion was never served on the Turnpike Authority, and plaintiff's attorney acknowledged that he had no proof of service. Accordingly, plaintiff's attorney agreed that the order dated April 1, 2010, should be vacated and that plaintiff's application should be considered on the merits.

On May 28, 2010, the court denied the Turnpike's Authority motion and it reaffirmed the April 1, 2010 order. The court's findings and conclusions, which were attached to the order, included the following: "[T]he Court finds that Plaintiff was unintentionally misinformed as to the identity of 'N.J.T.A.' by the police report of the accident."

On appeal, the Turnpike Authority argues that plaintiff's "assumption that 'N.J.T.A.' stood for 'New Jersey Transit Authority' was unreasonable on its face," because "[t]he only 'Transit' entity is the 'New Jersey Transit Corporation,' which is separate and distinct from the Turnpike Authority." See N.J.S.A. 27:25-3 (stating that "'Corporation' means the New Jersey Transit Corporation"). The Turnpike Authority also contends that the court abused its discretion by granting plaintiff's motion because her reasons for missing the notice deadline were not extraordinary.

Under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 14-4 (the Act), a claimant may not pursue a cause of action against a public entity or public employee unless a notice of tort claim is served upon the public entity no "later than the ninetieth day after accrual of the cause of action." N.J.S.A. 59:8-8. "Generally, in the case of tortious conduct resulting in injury, the date of accrual will be the date of the incident on which the negligent act or omission took place." Beauchamp v. Amedio, 164 N.J. 111, 117 (2000). However, the Act also provides an exception to the ninety-day time limit if a claimant can demonstrate "extraordinary circumstances" prevented the filing of a timely notice of claim:

A claimant who fails to file notice of his 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 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 seeking leave to file a late notice of claim within a reasonable time thereafter; provided 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.]

Prior to the amendment of the statute in 1994, the court was authorized to allow a late notice of claim beyond the ninety-day period upon a showing of "sufficient reasons" so long as the public entity was not substantially prejudiced. Blank v. City of Elizabeth, 318 N.J. Super. 106, 110 (App. Div.), aff d as modified, 162 N.J. 150 (1999). In Leidy v. Cnty. of Ocean, 398 N.J. Super. 449 (App. Div. 2008), we explained the significance of the 1994 amendment as follows:

The extraordinary circumstances requirement was not part of the original Act, and mere sufficient reasons sufficed to warrant relief from the statutory time bar. The extraordinary circumstances language was added by amendment in 1994 . . . to raise the bar for the filing of late notice from a fairly permissive standard to a more demanding one. The amendment may have signaled the end to a rule of liberality in filing. Notably, the 1994 amendment does not define what circumstances are to be considered extraordinary and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of extraordinary on the facts presented.

[Id. at 456 (internal quotation marks and citations omitted).]

In our judgment, the record in this case does not support the trial court's determination that plaintiff was "unintentionally misinformed" as to the identity of N.J.T.A. by the accident investigation report. In addition, plaintiff has failed to demonstrate that "extraordinary circumstances" prevented her from filing a timely notice of claim. See Leidy, supra, 398 N.J. at 461 (noting that the absence "of any reasonable efforts" undertaken by plaintiff during the ninety-day period to ascertain ownership, control or operation" of the roadway where the accident occurred precluded plaintiff from establishing the extraordinary circumstances required by N.J.S.A. 59:8-9 for the service of a late notice of claim); see also Iaconianni v. N.J. Tpk. Auth., 236 N.J. Super. 294, 297 (App. Div. 1989) (noting that "[r]easonable diligence required an investigation of the accident that went beyond a mere reading of the police report"), certif. denied, 121 N.J. 592 (1990).