FRANK MARENBACH v. COUNTY OF ATLANTIC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6288-09T1

FRANK MARENBACH,

Plaintiff-Appellant,

v.

COUNTY OF ATLANTIC,

Defendant-Respondent.

_________________________________

May 5, 2011

Submitted April 11, 2011 - Decided

Before Judges Sabatino and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3192-10.

Gerard J. Jackson, attorney for appellant.

James F. Ferguson, Atlantic County Counsel, attorney for respondent (James T. Dugan, Assistant County Counsel, on the brief).

PER CURIAM

Plaintiff Frank Marenbach appeals the trial court's denial of his motion for leave to file a late tort claims notice upon defendant, the County of Atlantic ("County"). We affirm.

According to his submissions, plaintiff, a vacationer from Pennsylvania, tripped and fell on the pavement on Ventnor Avenue in Margate on July 4, 2009. The fall apparently occurred on the east side of Ventnor Avenue at its intersection with Jefferson Street, a short distance from the curb. Plaintiff contends that the street location was in a dangerous condition. As a result of his fall, plaintiff injured his ankle and received medical treatment.

Plaintiff retained an attorney licensed in Pennsylvania to pursue recovery for his personal injuries. On September 30, 2009, the Pennsylvania attorney served a notice of tort claim upon the City of Margate ("City"), mistakenly assuming that the City was responsible for maintaining Ventnor Avenue. The notice was served upon the City within the ninety days prescribed by N.J.S.A. 59:8-8. The only other public entity that plaintiff apparently served with a notice was the State Department of Transportation.

The City's claims administrator, Scibal Associates, Inc. ("Scibal"), investigated plaintiff's claim and denied liability, advising him that he had served the wrong public entity. In a letter to plaintiff's Pennsylvania attorney dated January 14, 2010, Scibal advised him that the City has "no ownership, control and/or responsibility" over Ventnor Avenue. The letter further stated that the public entity "responsible for Ventnor Avenue is the County of Atlantic." In fact, Ventnor Avenue is officially designated as Atlantic County Road 629.

Plaintiff ultimately filed a tort claims notice with Atlantic County on February 2, 2010, almost seven months after his accident. The County denied liability because the notice was untimely. Plaintiff then filed a motion in the Law Division seeking leave to file a late notice, arguing that extraordinary circumstances warranted such relief.

Plaintiff supported his request with an affidavit from his Pennsylvania attorney. The attorney asserted that he was personally familiar with Ventnor Avenue where it passes through Margate, noting that he owns property nearby in Atlantic City and has driven on Ventnor Avenue on numerous occasions. Despite his asserted familiarity with the road, the attorney claimed that he had never previously observed signs indicating that Ventnor Avenue is a County highway. He alleged that he had "no reasonable means of knowing," during the statutory ninety-day notice period, that Ventnor Avenue is a County highway.

The County opposed plaintiff's motion and his contention of extraordinary circumstances. It reiterated that Ventnor Avenue is a County road, and refuted the contention of plaintiff's Pennsylvania attorney that the street is not clearly marked as such. As corroboration, the County submitted photographs of standard, pentagonal-shaped signs posted in Margate, indicating "Atlantic County 629." According to the County's submission, such a sign is posted on one of the main thoroughfares into and out of the City, as well as at the intersection of Jasper and Ventnor Avenue eastbound.

The County also argued that it would be substantially prejudiced if the court granted plaintiff leave to file a late claim concerning his July 2009 accident. It noted that the exact location of plaintiff's fall, and the specific nature of the alleged dangerous condition in the roadway, were still unclear more than a year after the accident. In the meantime, the road's condition could have been altered by weather, repairs, or maintenance activities.

Upon considering these arguments and submissions, Judge Nelson Johnson denied plaintiff's motion. In his oral opinion, the judge concluded that plaintiff "clearly was chargeable with knowing that this [roadway] was a County highway, failed to bring the notice before the County within the [statutorily-required] 90 days, [and] failed to move [to file a late claim] until many months afterwards[.]"

On appeal, plaintiff contends that the judge erred in denying his application and in not finding extraordinary circumstances here. We perceive no such error.

As amended, the applicable statute, N.J.S.A. 59:8-9, imposes a heavy burden on a claimant who wishes to file a tardy notice of tort claim after the ninety-day period mandated by N.J.S.A. 59:8-8 has expired. The statute requires the claimant to demonstrate "extraordinary circumstances" justifying such late service. Ibid. In addition, the public entity that the claimant wishes to sue cannot be "substantially prejudiced" by the delay in being served with notice. Ibid. The requirements of the statute have been enforced with considerable stringency. See, e.g., Blank v. City of Elizabeth, 162 N.J. 150, 152-53 (1999); Bayer v. Twp. of Union, 414 N.J. Super. 238, 259-60 (App. Div. 2010).

Our review is confined to whether the trial court abused its discretion in applying the statute. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 136, 146 (1988); Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 532-33 (App. Div. 2010). Plaintiff has not proven such an abuse here; to the contrary, the trial court's ruling was eminently sound.

The failure of plaintiff and his Pennsylvania attorney to appreciate that Ventnor Avenue is a County road until almost seven months after the accident does not amount to "extraordinary circumstances." The street is plainly marked as a County road by signs posted within the City of Margate. Moreover, plaintiff offers no reason why he could not have easily ascertained the road's status by consulting a map or an internet site, or through other diligent inquiry, within the ninety-day deadline.

Our opinion in Leidy v. County of Ocean, 398 N.J. Super. 449, 460-61 (App. Div. 2008), is instructive. In Leidy, we reversed an order granting leave to file a late notice under N.J.S.A. 59:8-9, in a situation where an injured motorcyclist had served his original notice on the wrong county. We noted that the identity of the county responsible for maintaining the road had not been "obscured," and that it was incumbent upon the plaintiff to have made diligent and reasonable efforts to verify the responsible county within the ninety-day period following his accident. Id. at 461-62. We further noted that the defendant county was prejudiced by the late notification, given the fact that the rut in the roadway of which the plaintiff complained had likely changed in the nearly one-year interval since the accident, due to the effects of time and weather. Id. at 463.

Similar logic applies here. The status of the roadway as an Atlantic County thoroughfare was not "obscured," and the delay in providing notification to the County is consequential. It is entirely conceivable that the condition of the street had changed from the time of plaintiff's summer mishap on the Fourth of July to the time of his service of notice upon the County the following winter.

The order denying leave to file a late notice is consequently affirmed.