MARUTA FRIEDLER v. NEW JERSEY DEPARTMENT OF TRANSPORTATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARUTA FRIEDLER,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT

OF TRANSPORTATION,

NEW JERSEY TRANSIT and

STATE OF NEW JERSEY,

Defendants-Respondents,

and

COUNTY OF UNION

and THE CITY OF SUMMIT,

Defendants.

____________________________

February 12, 2015

Argued January 29, 2015 Decided

Before Judges Reisner and Haas.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4324-11.

Leonard F. Rappa argued the cause for appellant.

Jeffrey S. Widmayer, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Widmayer, on the brief).

PER CURIAM

Plaintiff Maruta Friedler appeals from a December 4, 2012 order dismissing her complaint against defendant New Jersey Transit (NJT).1 She also appeals from a September 27, 2013 order denying her motion for reconsideration. We affirm for the reasons stated by the motion judge in her oral opinions issued on December 4, 2012 and September 27, 2013, and for the reasons stated in this opinion.

Plaintiff alleges that on November 13, 2009, she was injured when she fell on a defective stair at a train station operated by NJT. Through her attorney, plaintiff filed a Notice of Tort Claim (Notice or claim notice) on February 16, 2010, which was a few days beyond the ninety-day time limit set forth in the Tort Claims Act (TCA), N.J.S.A. 59:8-8. By letter dated February 22, 2010, a Claims Specialist for NJT wrote to plaintiff's attorney rejecting the Notice as untimely. Plaintiff's counsel did not respond to that letter asserting any reason for the late filing. Plaintiff also did not file a motion for permission to file a late claim notice, although pursuant to N.J.S.A. 59:8-9, she had one year from the date of the accident within which to file the motion. Instead, plaintiff waited until November 9, 2011, nearly two years after the accident, and then filed her lawsuit.

On April 5, 2012, NJT filed a motion to dismiss the complaint based solely on plaintiff's failure to comply with the notice provision of the TCA. In her opposition, filed July 9, 2012, plaintiff included a certification asserting, for the first time, that she had a reason for the late filing of her claim notice. She attested that immediately after she fell on the stairs, an NJT representative asked her for information about her accident. According to plaintiff, this representative told her that he needed the information about her accident and her injuries "in order to file the information with New Jersey Transit." Plaintiff attested that the representative wrote down the information she told him, and gave her a handwritten statement which she signed at his request. Plaintiff stated in her certification: "I understood from our conversation that if I gave him the information he requested, that would allow me to claim damages for my injuries if I decided to do so."

In support of her opposition, plaintiff also included several contemporaneous NJT accident reports, dated November 13, 2009, documenting her accident. One report was prepared by a female train conductor, Josie Cordero, and two were prepared by male NJT employees, Francis Bookstaver and Gary Curci. Plaintiff's counsel also filed a certification explaining that he filed the claims notices "on the date [he] was first able to communicate with plaintiff and obtain all the information necessary to complete those claims notices." Counsel also asked for more time to complete discovery concerning the date of plaintiff's fall, and noted that plaintiff might wish to add as defendants the entities that designed and constructed the train station, and might want to add a claim under 42 U.S.C.A. 1983.

On July 13, 2012, the motion judge heard oral argument. Plaintiff's counsel argued that plaintiff had substantially complied with the notice provision of the TCA, and had detrimentally relied on representations made to her by an NJT employee. Noting that defense counsel had stated she did not have time to file certifications in opposition to plaintiff's papers, which had been filed three days before the motion return date, the judge gave NJT time to file certifications responding to plaintiff's certification.

NJT filed a certification from Bookstaver, the Assistant Chief Dispatcher, attesting that his report was based on reports submitted by Cordero, and denying that Bookstaver spoke to plaintiff or made any "representations to plaintiff about the filing of a notice of claim." NJT also filed a certification from J. Gary Curci, the Manager of Rail Safety, similarly attesting that his report was based on Cordero's report, and denying that he ever spoke to plaintiff or made any representations to her about filing a claim notice. NJT further submitted a certification from Cordero, the train conductor who spoke with plaintiff right after the accident. Cordero attested that she did not see the accident, but stayed with plaintiff until the EMTs arrived, and made a report about the accident. Cordero denied making any representations to plaintiff about filing a claim notice. In response, plaintiff's attorney wrote a November 19, 2012 letter asking the motion judge to hold a testimonial hearing to resolve "any potential conflicts" between plaintiff's certification and those of the NJT employees.

In an oral opinion placed on the record on December 4, 2012, the motion judge reasoned that plaintiff's claim was barred because she neither filed her claim notice within ninety days after the accident nor sought leave of court to file a late notice of claim within one year of the accident. Relying on Iaconianni v. New Jersey Turnpike Authority, 236 N.J. Super. 294, 298 (App. Div. 1989), certif. denied, 121 N.J. 592 (1990), the judge concluded that after the one-year period expired, the court had no jurisdiction or discretion to grant plaintiff any relief. Alternatively, she found that the facts described in plaintiff's certification, and the information contained in the NJT reports, did not constitute substantial compliance with the notice requirement. The judge further noted that neither plaintiff nor her attorney had satisfactorily explained why plaintiff did not contact the attorney within ninety days after the accident, or why the attorney did not file a motion for permission to file a late claim notice within a year after the accident.

On December 26, 2012, plaintiff filed a motion for reconsideration, once again requesting an evidentiary hearing. She also filed a much more specific and detailed certification on April 11, 2013, attesting that the male NJT employee with whom she spoke had specifically told her "that if I gave him all of the information he requested [about the accident], that would allow me to claim damages for my injuries if I later decided to do so." Plaintiff also attested that she pointed out to this NJT representative the exact location of her fall and "pointed out to him that [the stair] was badly worn, and had ruts and ridges . . . and that I had caught my heel on that stair, and had fallen because of it." She also asserted that NJT had repaired the staircase shortly after her fall.

In response, the judge entered an order on July 12, 2013, directing NJT to produce additional discovery concerning repairs to the stairs, any security videos that might show the accident, and a copy of its entire file concerning the incident. There were no videos, and defendant's file did not contain any handwritten statement signed by plaintiff. In short, apart from plaintiff's two belated, self-serving certifications, there was no evidence to support her version of the relevant events. After hearing further oral argument, the trial judge issued an opinion and order denying reconsideration.

On this appeal plaintiff presents the following points of argument for our consideration

POINT I

SUPPLEMENTAL CERTIFICATIONS OF DR. FRIEDLER SHOULD BE CONSIDERED PART OF HER ORIGINAL MOTION.

POINT II

DOUBT RESOLUTION PRINCIPLE NOT PROPERLY APPLIED

POINT III

NEW JERSEY TRANSIT REPRESENTATIVE'S CERTIFICATIONS

POINT IV

TRIAL COURT DID NOT PROPERLY APPLY PRINCIPLES OF ESTOPPEL

POINT V

APPLICABLE LAW AND RULES

Except as addressed herein, those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Plaintiff argues that the information she allegedly provided to the NJT employee was sufficiently specific to constitute substantial compliance with the TCA notice provision. We cannot agree. Notably missing is any notice to NJT that plaintiff was asserting a tort claim against the agency or any estimate of her claimed damages. See N.J.S.A. 59:8-4. Providing that information is one of the important purposes of filing a tort claim notice, so the agency has timely notice that it needs to investigate the incident, can attempt to resolve the claim, and can prepare a defense. See Velez v. City of Jersey City, 180 N.J. 284, 290 (2004). Nor does her certification state that any NJT employee told her she did not need to file a notice of tort claim. Plaintiff's reliance on Murray v. Brown, 259 N.J. Super. 360 (Law Div. 1991), is misplaced. In that case, the plaintiff filed a timely notice, containing all of the statutorily required information. Id. at 362.

Further, plaintiff's description of her alleged oral complaint to a male NJT employee, which he allegedly memorialized in handwriting and had her sign, is questionable at best. Plaintiff knew, as early as February 22, 2010, that NJT was taking the position that her claim notice was filed untimely, yet she did not tell the agency then that an NJT employee had misled her into delaying the filing. Nor did she bringthat allegation to the attention of the agency or the court atany timeprior to the filing of NJT's dismissal motion in 2012.

However, even assuming the truth of plaintiff's certifications, and assuming that the information contained therein might have excused her failure to file her claim notice within ninety days, plaintiff still needed to file a motion for leave to file a claim notice out of time, within one year of the accident. See McDade v. Siazon, 208 N.J. 463, 468-69, 479-80 (2011). Her failure to do so is fatal to her claim. Id. at 469; Iannaconni, supra, 236 N.J. Super. at 298.2

Affirmed.

1 The State and its Department of Transportation are also respondents. However, we will henceforth refer to NJT as defendant.

2 Plaintiff's reliance on S.E.W. Friel Co. v. New Jersey Turnpike Authority, 73 N.J. 107, 122 (1977), for the principle that doubts should be resolved in favor of a plaintiff's application, is unavailing. The pertinent language referred to a motion for leave to file a late claim notice. Ibid. S.E.W. Friel was decided before N.J.S.A. 59:8-9 was amended to require a showing of extraordinary circumstances for filing a late claim notice. See D.D. v. Univ. of Med. and Dentistry of N.J., 213 N.J. 130, 147-48 (2013).