SHIRLEY LYVAN v. CITY OF EAST ORANGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1851-04T51851-04T5

SHIRLEY LYVAN,

Plaintiff-Respondent,

v.

CITY OF EAST ORANGE,

Defendant-Appellant.

________________________________

 

Argued November 16, 2005 - Decided

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

No. ESX L 5387-04.

Ronald Kleckley, Assistant Corporation Counsel,

argued the cause for appellant (Jason Holt,

Corporation Counsel, attorney; Mr. Kleckley,

on the brief).

Barbara Ann Daniels argued the cause for

respondent.

PER CURIAM

Defendant City of East Orange appeals from a trial court order granting plaintiff's motion for leave to file a late notice of claim. After reviewing the record in light of the contentions advanced on appeal, we have concluded we are constrained to reverse.

Plaintiff tripped and fell on November 3, 2003, on a public sidewalk in East Orange. Plaintiff concluded that her fall was a result of protruding tree roots that had raised up a portion of the sidewalk, creating an uneven surface for walking. She discussed the matter with counsel shortly after the accident, but she was still undergoing treatment and did not then execute a retainer agreement. See Beauchamp v. Amedio, 164 N.J. 111, 119 (2000) (holding that a cause of action accrues under the Tort Claims Act at the time of the accident, without regard to a determination as to permanency).

Plaintiff met with counsel on Saturday, January 24, 2004, at the scene of the accident so the attorney could inspect the location of her fall. Plaintiff came to counsel's office a week later, on Saturday, January 31, 2004, and signed a retainer agreement. Two days later, on Monday, February 2, 2004, counsel prepared a notice of claim form to file with East Orange and deposited one copy of the notice into the regular mail. The following day, February 3, counsel took another copy of the notice to the post office and mailed it to the City by certified mail, return receipt requested. The City received the notice on February 4, 2004.

In March 2004, the City's claims administrator forwarded to counsel the notice of claim form East Orange had adopted for its own use. N.J.S.A. 59:8-6. In June 2004, counsel completed this form and returned it to the City. In the process of completing the form, however, counsel noted that she had incorrectly stated on the original claim form that plaintiff fell on November 7, 2003, rather than November 3, 2003. Counsel corrected this error and returned the completed form. The claims administrator rejected the notice of claim, contending the original notice was not timely served.

Plaintiff, in turn, filed a motion for leave to file a late notice of claim. N.J.S.A. 59:8-9. The trial court granted this motion and denied the City's motion for reconsideration. This appeal followed.

While this appeal was pending, the Supreme Court issued its opinion in Moon v. Warren Haven Nursing Home, 182 N.J. 507 (2005), in which it held that an order granting leave to file a late notice of claim is interlocutory and not appealable as of right. In light of the fact that the parties have fully briefed the merits of the question, we choose not to dismiss the appeal as interlocutory but to address the merits.

Plaintiff's claim against defendant City of East Orange for damages for her injuries is subject to the notice requirements of the Tort Claims Act, N.J.S.A. 59:8-1 to -11. We set forth those statutory provisions which guide our analysis. N.J.S.A. 59:8-8 provides in pertinent part:

A claim relating to a cause of action for . . . injury or damage to person . . . shall be presented . . . not later than the ninetieth day after accrual of the cause of action . . . . The claimant shall be forever barred from recovering against a public entity . . . if:

a. He failed to file his claim with the public entity within 90 days of accrual of his claim except as otherwise provided in section 59:8-9.

N.J.S.A. 59:8-9 provides in turn:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after accrual of his claim provided that the public entity . . . has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 . . . .

The manner in which a claim must be presented is governed by N.J.S.A. 59:8-10, which states in pertinent part:

a. A claim shall be presented to the public entity by delivering it to or mailing it certified mail to the office of the Attorney General or the office of the State agency allegedly involved in the action. A claim may be presented to a local public entity by delivering it or mailing it certified mail to the entity.

Plaintiff's claim for damages accrued on November 3, 2003, the date of her fall. She was required, under N.J.S.A. 59:8-8, to file her notice of claim with East Orange within ninety days, that is, by February 1, 2004. Because February 1, 2004, fell on a Sunday, plaintiff had until the following day, February 2, 2004, to present her notice of claim. If the notice had been delivered to defendant on February 2, it would have been timely. Similarly, if the notice had been mailed to defendant by certified mail on February 2, the notice would have been timely. Depositing it into the regular mail on February 2, however, did not constitute timely presentation. Mittra v. Univ. of Med. & Dentistry of N.J., 316 N.J. Super. 83, 93 (App. Div. 1998) (stating that "[n]otice which is neither delivered nor mailed by certified mail fails to comply with the statute, and there is no presumption of receipt on mailing by ordinary mail").

The significance of this one day was not discovered until plaintiff's counsel returned the completed claim form that had been supplied by defendant's claims administrator and corrected the date of plaintiff's accident from November 7, 2003 to November 3, 2003. In support of her subsequent motion for leave to file a late notice of claim, counsel submitted a certification that although plaintiff had given her the correct date, "when she came into my office to sign the retainer agreement and a file was set up, the date was written incorrectly on the file as November 7 (instead of the correct date of November 3)."

The trial court, in granting plaintiff's motion, entered an order stating that the notice of claim defendant had received on February 4, 2004, "shall be deemed to have been filed in the period permitted by N.J.S.A. 59:8-9." In the course of deciding the motion, the trial court noted that, whenever possible, cases should be heard on their merits and that any possible doubts in connection with the application should be resolved in its favor. It stated that it was allowing "that notice to be filed when it's . . . one day late[] No harm, no foul."

In moving for reconsideration, the City noted the three-month delay that occurred between its forwarding its own claim form to counsel and return of the completed form. It also stressed, as it had previously, that N.J.S.A. 59:8-8 required the existence of "extraordinary circumstances" to warrant permission to file a late notice of claim. The trial court denied the motion for reconsideration, finding the City had not been prejudiced by the three-month delay. It stated it considered it "inherently unfair to bar plaintiff's claim where, essentially, the information was provided" and that if counsel had taken the original form to the post office the evening of February 2, "instead of waiting till the morning it would have been timely filed. The mailing date is what governs, not receipt date."

While we can sympathize with the discomfit the trial court exhibited at the prospect of denying plaintiff's motion for leave to file a late notice of claim in this context, we are satisfied that the trial court erred in granting this relief to plaintiff. Zois v. N.J. Sports & Exposition Auth., 286 N.J. Super. 670 (App. Div. 1996), is instructive. Plaintiff in that case was injured on August 24, 1994, in a fall at the Meadowlands Sports Complex. Id. at 672. He contacted his attorney the following day, who allegedly sent, by regular mail, a handwritten letter asking for the medical report. Defendant never received this request. Id. at 672-73. A notice of claim was not presented within ninety days, and counsel moved for permission for leave to file a late notice. The trial court granted the motion, and we reversed. After noting that the statute had been amended to require a showing of extraordinary circumstances, we stressed:

The sole excuse offered by plaintiff was that his attorney's secretary had misplaced the file and had not called it to the attorney's attention. The attorney discovered the file months later when he left the firm and found it mixed with other matters . . . . Under the amended statute . . . if the sole basis for plaintiff's late notice was the misfiling by the secretary and the attorney's forgetfulness, the claim against the public entity has been lost.

[Id. at 674.]

In the course of our opinion, we noted the similarity between the requirement of extraordinary circumstances in the amended N.J.S.A. 59:8-9 and the need to show extraordinary circumstances to relax the thirty-day period within which a party may request a trial de novo under R. 4:21A-1. In the latter context, attorney error does not constitute extraordinary circumstances, Hartsfield v. Fantini, 149 N.J. 611 (1997); Wallace v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605 (1997). We concluded, similarly, that attorney error does not constitute extraordinary circumstances for purposes of N.J.S.A. 59:8-9.

The Supreme Court has noted that the purpose of the Legislature in adding the phrase "extraordinary circumstances" to the statute "was to raise the bar for the filing of late notice from a 'fairly permissive standard' to a 'more demanding' one." Beauchamp v. Amedio, supra, 164 N.J. at 118. We recognize that in that case, the Court did treat an erroneous opinion by plaintiff's counsel as to when her cause of action accrued to constitute "extraordinary circumstances." Id. at 123. It did so, however, in light of the existence of a published opinion from this court which supported that erroneous advice. Ibid.

Nothing so stark can be found in the present matter. Were we to treat the erroneous transcription of the date of the accident as "extraordinary circumstances," we would eviscerate the statute. This we are not free to do.

The orders under review are reversed.

 

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A-1851-04T5

December 22, 2005