GREGORY PRESSLEY v. LUKE V. MANGARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GREGORY PRESSLEY,

Plaintiff-Appellant,

v.

LUKE V. MANGARO and BOROUGH OF

PINE HILL,

Defendants-Respondents.

___________________________________

November 22, 2016

 

Argued May 9, 2016 Decided

Before Judges Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0654-15.

Richard S. Seidel argued the cause for appellant (Kats, Jamison & Associates, attorneys; Marina Kats and Liberato P. Verderame, on the brief).

Gina M. Roswell argued the cause for respondents (Brown & Connery, LLP, attorneys; Ms. Roswell, on the brief).

The opinion of the court was delivered by

HIGBEE, J.A.D.

Plaintiff Gregory Pressley appeals from an April 24, 2015 order denying his motion to file a late tort claims notice. We affirm for the reasons stated by the motion judge in his oral opinion and for the reasons stated in this opinion.

On December 27, 2013, plaintiff was injured while driving alone in his girlfriend, Exia Monroe's vehicle, which was struck by a truck owned by defendant, Pine Hill Borough and driven by its employee, defendant Luke Mangaro. Thereafter, following a call from Monroe, the Borough sent a tort claim notice form to her. The single tort claim notice form provided by the Borough was completed and returned within ninety days of the accident.

Monroe is identified as the "claimant" on the first line of the form by both her name and address. Monroe's signature is the only signature on the form and only her social security number and birthdate are provided. However, the body of the form contains references to plaintiff by name, and information regarding plaintiff's role in the accident and his injuries are included. Both the personal injury claim box and the property damage claim box were checked on the form. Within the form plaintiff's claims of injury to his back, neck, and knees are set forth, as well as the name of the emergency room where he was treated. In response to question 3c, regarding how the accident occurred, the answer begins: "I, Gregory Pressley was traveling on Kayser . . . The County truck quickly back (sic) up (and) hit Ms. Monroe's truck." In response to question 3e the pronoun "I" is again used to describe the actions of plaintiff. The law firm that represented both plaintiff and Monroe was also listed on the form as a place to send future notices concerning the claim. The answer to question nine regarding whether anyone will receive compensation reads: "Ms. Monroe, No"; " Mr. Pressley, might."

After receiving the notice defendants' adjuster reached out to Monroe and her property claim was settled. Subsequently, on April 3, 2014, five days beyond the ninety-day period set forth in N.J.S.A. 59:8-8, plaintiff sent a tort claim notice solely on behalf of himself. The Borough responded with a letter asserting the notice of claim would not be accepted because it was filed beyond the statutory time limit.

Significantly, plaintiff did not apply to the court at that time to have the first notice deemed to be in substantial compliance with the statute or even write to the Borough claiming the first notice was within time. 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, he had one year from the date of the accident within which to file the motion. Instead, plaintiff waited until February 18, 2015, over a year after the accident, to file a motion seeking to file late claim.

Following oral argument on the motion, in an oral opinion placed on the record on April 24, 2015, the motion judge reasoned that plaintiff's claim was barred because he neither filed his 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 N.J.S.A. 59:8-8 and on N.J.S.A. 59-8-9, the judge concluded that after the one-year period expired, the court had no jurisdiction or discretion to grant plaintiff any relief.

Plaintiff's counsel did not raise before the trial court the argument that the first notice form was filed within ninety days and was in substantial compliance with the statute. Plaintiff raises that argument for the first time on appeal. Instead counsel argued that the Borough had actual notice of the accident, and the notice filed by counsel five days late demonstrated substantial compliance with the requirements of N.J.S.A. 59:8-4.

We agree with the trial judge, that based on what was presented to him, even if the five-day delay was excusable under the extraordinary circumstances standard set forth in N.J.S.A. 59:8-9, plaintiff still needed to file a motion for leave to file a claim notice out of time, within one year of the accident. Plaintiff's failure to do so is fatal to his claim. See D.D. v. Univ. of Medicine & Dentistry, 213 N.J. 130, 146-47 (2013); McDade v. Siazon, 208 N.J. 463, 468-69, 479-80, (2011); Iaconianni v. N.J. Tpk. Auth., 236 N.J. Super. 294, 297-98 (App. Div. 1989), certif. denied, 121 N.J. 592 (1990).

We next turn to plaintiff's newly raised claim that Monroe's original tort claim notice was also filed on behalf of plaintiff. Plaintiff asserts this notice was timely filed and in substantial compliance with the notice provisions of N.J.S.A. 59:8-4. Plaintiff, further argues the Monroe tort claim notice gave defendants actual notice of the accident and of the damages sustained by plaintiff, but the brief did not directly assert the first claim notice was filed on behalf of plaintiff as well as Monroe. During oral argument on appeal, plaintiff's counsel asserted plaintiff had filled out the first notice in his own hand. Thereafter, we reviewed short supplemental briefs, limited to the issue of the sufficiency of a joint claim notice signed by only one of two claimants.

Upon further consideration, we conclude the failure of plaintiff to raise this argument before the trial court precludes us from considering it on appeal. The standard by which we evaluate a trial court's denial of a right to file a late tort claim notice or a trial court's finding of no substantial compliance with the requirements of the applicable statutes is an abuse of discretion standard. SeeD.D., supra, 213 N.J.at 147 (citing Lamb v. Global Landfill Reclaiming, 111 N.J.134, 146 (1988)). Certainly the court did not abuse its discretion in not granting equitable relief based on a claim that was never presented. The Supreme Court has stated that "issues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest". N.J. Dept. of Envir. Prot. v. Huber, 213 N.J.338, 372 (2013); N.J. Div. of Youth and Family Services v. M.C. III, 201 N.J.328 (2010); County of Essex v. First Union Nat'l Bank, 186 N.J.46, 51, (2006). The issue raised here, for the first time on appeal, is not jurisdictional and does not implicate the public interest. It involves a unique set of alleged facts that were never presented to the trial court for a factual or legal determination. We decline to address the questions raised at this late date. Therefore, we affirm the trial court's decision. Affirmed.