ANNA ANTONINICH v. BIANCA HALLOWAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANNA ANTONINICH,

Plaintiff-Respondent,

v.

BIANCA HALLOWAY and

THE COUNTY OF ATLANTIC,

Defendants-Appellants.

______________________________________

April 4, 2014

 

Submitted March 5, 2014 Decided

 

Before Judges Fuentes and Fasciale.

 

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-5453-12.

 

James F. Ferguson, Department Head County Counsel, attorney for appellants (Donna M. Taylor, Assistant County Counsel, on the brief).

 

Bard L. Shober, attorney for respondent.

 

PER CURIAM

Defendant Atlantic County and its employee, Bianca Halloway, appeal from the order of the Law Division denying their motion to dismiss plaintiff's complaint for failure to serve the notice required under N.J.S.A. 59:8-4 of the Tort Claims Act within the ninety-day period provided for in N.J.S.A. 59:8-8, and granting plaintiff's cross-motion to file notice out of time. The court found plaintiff demonstrated "extraordinary circumstances" warranting the extension of the ninety-day deadline provided in N.J.S.A. 59:8-9. Defendants argue the record does not support the court's ruling. We agree with defendants' position, and reverse.

The following facts are undisputed. On August 9, 2011, plaintiff Anna Antoninich was allegedly injured in an accident while a passenger in a van owned by Atlantic County and driven by Halloway. By letter dated November 8, 2011, an attorney claiming to represent plaintiff wrote to "County of Atlantic" and provided certain information about the accident purporting to satisfy the requirements of N.J.S.A. 59:8-4. The envelope containing this letter was stamped as mailed on November 10, 2011 by the United States Postal Service. Although county offices were closed on November 8, 2011 for Election Day, the due date under N.J.S.A. 59:8-8 was November 7, 2011, because that was the ninetieth day from the date plaintiff's cause of action accrued. Thus, even assuming plaintiff's counsel mailed the notice on November 8, 2011, such an effort merely confirms the untimeliness of the service under the timeframe established in N.J.S.A. 59:8-8.

Plaintiff served defendants with a civil complaint on December 5, 2012, more than a year after the date of the accident. Defendants moved to dismiss the complaint on December 17, 2012 for plaintiff's failure to timely file the Tort Claims Act notice. Plaintiff cross-moved to file the notice out of time. Plaintiff's counsel filed a certification in support of the cross-motion in which he stated that he met with plaintiff on September 6, 2011, less than thirty days after the accident. At this meeting, plaintiff told her attorney that she had been involved in an accident while "she was being transported for medical treatment to take place at Bacharach Rehabilitation Hospital." Plaintiff was ninety-one years old at the time; she was born in Italy and spoke English with a strong Italian accent.

Counsel averred that after this initial meeting, "I later learned that Ms. Antoninich knew that the bus transportation was, in fact, provided by the County of Atlantic, it was only the misunderstanding at the initial meeting that led to the filing of a late notice of tort claim." (Emphasis added). Counsel asked plaintiff "to get a copy of the police report (which she advised she had at home) and provide it to my office." In his certification to the trial court counsel confirmed that he reviewed the police report at this second conference with plaintiff on November 7, 2011, and

. . . noted that a public entity was the probable defendant in this matter and immediately began drafting a notice of tort claim in compliance with the requirements of N.J.S.A. 59:8-4. Unfortunately, I was unable to complete the tort claims notice and deliver it, either in person at the offices of the County of Atlantic or to the post office, before the close of day.

 

On November 8[, 2011,] the letter/notice of tort claim was deposited in the mailbox in front of my office. No hand delivery was possible that day as November 8 was Election Day in 2011 and County offices were closed.

 

On November 9, 2011[,] a temporary employee of the office, Daniella Da Silva, was sent to the offices of the County of Atlantic located on Atlantic Avenue in Atlantic City to hand deliver the notice of tort claim. When she arrived at the reception desk she was advised that the individual who accepted claim notices was not available and that she would have to return another day. Ms. Da Silva advised me of this the following morning, November 10, 2011.

 

On November 10, 2011 I personally delivered the notice of tort claim to the County of Atlantic offices in Atlantic City. I too was advised that the individual who accepted the notice of tort claim was not present. It was only upon my insistence, that the notice of tort claim was accepted and a copy stamped received. (Emphasis added).

The trial court denied defendants' motion to dismiss the complaint and granted plaintiff's cross-motion to accept the notice out of time, finding plaintiff

demonstrated 'extraordinary circumstances' to warrant the late filing. The Tort Claims Notice was postmarked on November 8, 2011, which was the last day to timely file the Tort Claims Notice. November 8, 2011 was also Election Day, which is recognized as a holiday in the State of New Jersey. Due [to] the holiday, Plaintiff submits hand-delivery was not possible because the County Offices were closed. On November 9, 2011, Plaintiff attempted to hand-deliver the Tort Claims Notice. However, the County of Atlantic did not accept service. Actual delivery of the Notice was made on November 10, 2011. The [court] finds that service on November 9, 2011 would have been timely since the last day to file a timely notice was Election Day and the County Office was closed. The [c]ourt finds that Atlantic County's refusal to accept service of the Tort Claims Notice on November 9, 2011 was improper. Further, the [c]ourt does not find that there has been substantial prejudice to warrant dismissing Plaintiff's Complaint with prejudice. (Emphasis added).

 

We start our analysis by noting a material computational error that played a key role in the trial court's ruling. "In determining the timeliness of a Tort Claims Act notice of claim, the trial court's inquiry . . . begins with the date upon which the claim accrues." McDade v. Siazon, 208 N.J. 463, 475 (2011), (citing Beauchamp v. Amedio, 164 N.J. 111, 118-19 (2000)). Here, the ninety-day clock under N.J.S.A. 59:8-8 began to tick on August 9, 2011, the day plaintiff's cause of action accrued. Ninety days from August 9, 2011 was November 7, 2011, not November 8, 2011, as the trial court erroneously found.1

In D.D. v. University of Medicine and Dentistry of New Jersey, 213 N.J. 130, 151 (2013), the Court emphasized that "in engaging in the analysis of extraordinary circumstances, the court's focus must be directed to the evidence that relates to plaintiff's circumstances as they were during the ninety-day time period, because that is the time during which the notice should have been filed." Here, by plaintiff's counsel's own admission, the late filing was due entirely to events completely within his control.

Counsel met with his ninety-one-year-old, English language-limited client on September 6, 2011, twenty-nine days after the accident. Despite plaintiff's advanced age and heavy Italian accent, counsel certified she was lucid and able to communicate to him all of the material details of the accident without difficulty. This included conveying the clear indication that the accident involved a vehicle used by a public entity to transport elderly residents to medical appointments. To add even more clarity to the issue, plaintiff's counsel concedes that he did not take any steps to obtain a copy of the police report until November 7, 2011, the last day to serve the Tort Claims Act notice under N.J.S.A. 59:8-8. This dereliction is rendered even more egregious when considering that plaintiff had a copy of the police report in her possession on September 6, 2011, but had merely neglected to bring it with her when she met with her attorney. Thus, a simple request from counsel to have his client provide him with a copy of the police report would have dispelled any misconceptions about the applicability of the Tort Claims Act and the need to provide the notice required by N.J.S.A. 59:8-4 within the timeframe mandated in N.J.S.A. 59:8-8.

The record is equally clear that plaintiff's failure to meet the N.J.S.A. 59:8-8 deadline was not due to any physical or emotional impairment; neither her advanced age nor her linguistic limitations played any role in her failure to meet this statutory deadline. Plaintiff provided her attorney with all of the information necessary for him to file this notice in a timely manner. Plaintiff's attorney could have filed this notice at any time between September 6, 2011 and November 7, 2011. Counsel's last-minute, and ultimately futile, attempts to meet this statutory deadline were entirely due to his inattention to this key aspect of his client's case. Attorney inattention, however, does not constitute extraordinary circumstances within the meaning of N.J.S.A. 58:8-9. D.D., supra, 213 N.J. at 158.

We reach this conclusion mindful that this will preclude plaintiff from seeking relief from these defendants. However, as the Court noted in D.D.:

We do not leave this plaintiff without a remedy nor does the application of the standard chosen by our Legislature deprive her of justice. To the extent that the claim is barred by the attorney's failing, however, plaintiff's remedy, and her avenue to secure a just result, lies in an action against the attorney for malpractice.

 

[Ibid.]

 

Reversed and remanded for the Law Division to enter an order dismissing plaintiff's complaint with prejudice.

1 Notwithstanding this computational error, assuming November 8, 2011 was in fact not available to plaintiff because it was Election Day, plaintiff did not hand-deliver the Tort Claims Act notice until November 10, 2011, one day after the ostensible deadline.