ALBERT FORTNEY, JR v. BOARD OF EDUCATION OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ALBERT FORTNEY, JR.,

Plaintiff-Appellant,

v.

BOARD OF EDUCATION OF NEWARK

A/A STATE OPERATED SCHOOL

DISTRICT OF NEWARK (IMPROPERLY

PLED AS NJ STATE DEPARTMENT OF

EDUCATION NEWARK),

Defendant-Respondent.

________________________________

February 13, 2014

Submitted: February 5, 2014 Decided:

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-978-12.

Albert Fortney, Jr., appellant pro se.

Adams Stern Gutierrez & Lattiboudere, LLC, attorneys for respondent (Sandro Polledri, of counsel and on the brief; Erin M. Callahan, on the brief).

PER CURIAM

Plaintiff appeals from an order entered by the Law Division on July 27, 2012, denying his second motion for reconsideration of an April 27, 2012 order dismissing his complaint with prejudice pursuant to Rule 4:6-2(e). We affirm.

Plaintiff claims that he was subjected to racially discriminatory educational practices in 1953 while he was a student at Robert Treat Junior High School in Newark. Plaintiff was eleven years old when these incidents occurred. Plaintiff filed his complaint in the Law Division on February 3, 2012.

Plaintiff filed a motion seeking to enter default against defendant, which responded by filing a cross-motion to dismiss on the ground that plaintiff had not complied with the notice of claim requirement of the New Jersey Tort Claims Act, N.J.S.A. 59:8-8, and because the applicable statute of limitations had expired. After hearing oral argument, Judge Denise A. Cobham rendered a comprehensive oral opinion and dismissed plaintiff's complaint. The judge explained that N.J.S.A. 59:8-8 requires that a claim against a public entity be filed "not later than the 90th day after accrual of the cause of action." However, plaintiff had never filed a notice of claim. In addition, the judge found that, once plaintiff reached the age of majority, he had two years1 to file a complaint against defendant. Because plaintiff did not file his complaint for over fifty years after he was subjected to discrimination, the judge ruled that the complaint must be dismissed.

In so ruling, Judge Cobham thoughtfully considered plaintiff's argument that he was not aware that he had the right to bring his action until approximately 2011 and that he had previously "repressed" his memories of the events of 1953. However, citing our Supreme Court's decision in Lopez v. Swyer, 62 N.J. 267, 275-276 (1973), the judge found that the discovery rule could not be applied under the circumstances of this case. The judge noted that defendant would not be able to produce witnesses or documents from five decades ago and, therefore, it would "be seriously and substantially prejudiced in defending against [plaintiff's] claims."

The judge denied plaintiff's subsequent motions for reconsideration. This appeal followed. On appeal, plaintiff again argues that the notice of claim requirement of N.J.S.A. 59:8-8 and the statute of limitations should not apply to bar his claims because he had "repressed" his memories of what happened in 1953 and only recently realized that he could file an action against defendant.

We have thoroughly considered plaintiff's arguments. In light of the record and applicable legal principles, we conclude that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Cobham in her thorough oral opinion.

Affirmed.

1 N.J.S.A. 2A:14-2 provides that "[e]very action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued[.]" This statute of limitations also applies to claims brought under N.J.S.A. 10:5-13, the Law Against Discrimination, Montells v. Haynes, 133 N.J. 282, 292-95 (1993), and to civil rights actions filed pursuant to 42 U.S.C.A. 1983, O'Connor v. City of Newark, 440 F.3d 125, 126-27 (3d Cir. 2006). The statute of limitations does not begin to run until the individual reaches the age of majority. N.J.S.A. 2A:14-21.