JOHN OVERSTREET v. SENIOR HIGH RISE SENIOR CENTER, HOUSING AUTHORITY CITY OF BRIDGETON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1894-04T51894-04T5

JOHN OVERSTREET,

Plaintiff-Appellant,

v.

SENIOR HIGH RISE SENIOR CENTER,

HOUSING AUTHORITY OF THE CITY

OF BRIDGETON,

Defendants-Respondents.

________________________________________________________________

 

Argued December 5, 2005 - Decided

Before Judges Cuff and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. CUM-L-0948-02.

James Taylor argued the cause for Appellant (Chance & McCann, attorneys; Shirley Naylor, on the brief).

Renee E. Scrocca argued the cause for respondents (Basile & Testa, attorneys; Ms. Scrocca, on the brief).

PER CURIAM

Plaintiff, John Overstreet, appeals the Law Division's September 10, 2004 order denying plaintiff's motion to file a late notice of tort claim and the Law Division's November 5, 2004 order denying plaintiff's motion for reconsideration. We affirm.

On September 18, 2003, plaintiff was the victim of an unprovoked violent attack against him by a resident of the Senior High Rise Center (SHRC), who struck plaintiff in the head and face with a metal walking crutch causing him to sustain personal injuries. Plaintiff was a security officer employed by Iowa Security, a private security company, and was assigned to the SHRC. The SHRC is owned by The Housing Authority of the City of Bridgeton (HA), a public entity as defined in N.J.S.A. 59:1-3. See Bligen v. Jersey City Housing Auth., 131 N.J. 124, 131 (1993). Plaintiff intended to file a claim for damages against the HA for his personal injuries proximately caused by the attack.

Plaintiff, however, failed to file a tort claim notice within ninety days after the date of the incident as required by N.J.S.A. 59:8-8. On August 5, 2004, plaintiff filed a motion requesting leave to file a notice of late claim pursuant to N.J.S.A. 59:8-9. Judge Curio denied plaintiff's motion finding that plaintiff had failed to show sufficient reason constituting extraordinary circumstances for his failure to file a notice of claim within the ninety days after accrual of the cause of action, as required by N.J.S.A. 59:8-9. Thereafter, on November 5, 2004, Judge Curio denied plaintiff's motion for reconsideration. This appeal followed.

The New Jersey Tort Claims Act requires that notice of a claim be filed against a public entity within ninety days after accrual. N.J.S.A. 59:8-8. N.J.S.A. 59:8-9 provides:

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 the accrual of his claim provided that the public entity or the public employee 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 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim. (emphasis added).

In order to determine whether to permit a claimant to file a late notice of claim, the court is required to make a determination of whether sufficient reasons constituting "extraordinary circumstances" exist for the claimant's failure to file the notice of claim within ninety days after accrual of the cause of action as prescribed by N.J.S.A. 59:8-8. Beauchamp v. Amedio, 164 N.J. 111, 118-19 (2000).

"The sometimes harsh impact of the ninety day notice of claim requirement set forth in N.J.S.A. 59:8-8 is eased by the saving provision of N.J.S.A. 59:8-9 which authorizes the court, in its discretion, to extend the time for the filing of a notice of claim within a period not exceeding one year following accrual of the cause of action." Margolis and Novack, Claims against Public Entities, comment on N.J.S.A. 59:8-9 (2005). However, the court's discretion was substantially limited by the 1994 amendment to N.J.S.A. 59:8-9. Ibid. The 1994 amendment added the language that such reasons be shown to constitute "extraordinary circumstances" to the previous requirement that a claimant show "sufficient reasons" for filing a late notice of claim. Ibid. Our cases have stated that the statutory change "'suggested that the amendment may have signaled the end to a rule of liberality.'" Ibid. (quoting Lowe v. Zarghami, 158 N.J. 606, 626 (1999), quoting Zois v. New Jersey Sport & Exp. Auth., 286 N.J. Super. 670, 675 (App. Div. 1996)). Although the phrase "extraordinary circumstances" is not defined by the statute, the Supreme Court has acknowledged that the purpose of adding that language to the statute was to change the standard for the filing of a late notice from a "fairly permissive" standard to a "more demanding one." Beauchamp, supra, 164 N.J. at 118.

Our cases have found substantial reasons constituting extraordinary circumstances permitting the filing of a late notice of tort claim to include: the fact that the plaintiff did not know that the defendant, a state university clinical professor who performed surgery on the plaintiff at a private hospital, was a public employee; and the fact that a plaintiff did not know her injury was sufficiently serious to vault the tort damages threshold required by N.J.S.A. 59:9-2 prior to the expiration of the ninety day deadline. Lowe, supra, 158 N.J. at 629; Beauchamp, supra, 164 N.J. at 122.

Conversely, a non-English speaking pedestrian did not establish extraordinary circumstances in her claim against the City of Elizabeth and the City of Elizabeth Water and Sewer Utility arising out of a trip over a public utility shut-off valve because an inspection of the area within a reasonable time following the accident would have led promptly to the identification of the public entity defendants that were responsible for installation and maintenance of the shut-off valve. Blank v. City of Elizabeth, 318 N.J. Super. 106, 110-11 (App. Div.), aff'd as mod. 162 N.J. 150, 152-53 (1999). Factors such as youth, ignorance and attorney neglect have also not been considered to be sufficient reasons constituting extraordinary circumstances so as to permit the filing of a late notice of tort claim. S.P. v. Collier High Sch., 319 N.J. Super. 452 (App. Div. 1999); Zois, supra, 286 N.J. Super. at 675.

In this matter, plaintiff's motion brief initially argued that he only had to prove sufficient reasons and lack of prejudice to the public entity in order to prevail. Defendants opposed the motion, pointing out to the court that the statute and case law required plaintiff to prove not only "sufficient reasons" but "sufficient reasons constituting extraordinary circumstances" in order to permit the late filing of a notice of tort claim. In response to that assertion, plaintiff provided an affidavit indicating that at the time of his assignment to the SHRC, he did not know that it was a public entity. He further asserted that the public entity had notice of his accident, for it sent flowers and a card to him signed "The Housing Authority" shortly after the incident.

Plaintiff's assertion that he did not know that the HA was a public entity at the time of the incident is disputed by reports supplied by defendant in response to plaintiff's affidavit. The certification of James Howell, HA director, stated that plaintiff regularly filled out written security reports. Additionally, copies of two handwritten daily activity reports signed by plaintiff and identifying "Senior Highrise-Bridgeton Housing Authority" as the client to which plaintiff provided security services, dated September 1, 2003 and September 5, 2003, were supplied to the court by defendant in response to plaintiff's affidavit. These reports were executed by plaintiff just weeks prior to the incident and contradict plaintiff's assertion that he did not know that the High Rise Center was operated by a public entity.

We are convinced that even if plaintiff did not know on the date of the incident that the SHRC was operated by a public entity, he certainly knew that fact within ninety days of the attack against him, for he admitted that the HA sent him flowers and a card after the incident.

Plaintiff argues, however, that the public entity has not suffered any prejudice, and that it would be, therefore, appropriate to permit the late filing of the notice of tort claim in order to serve the interests of justice. Although we agree that the defendant has not shown that it would be prejudiced by a late filing of notice of tort claim, the lack of prejudice is not the only determinative factor in deciding a motion for late filing of a notice of tort claim. The statute and case law clearly require a claimant to prove, in addition to lack of prejudice, substantial reasons constituting extraordinary circumstances for the failure to file within the ninety day statutory period. In Escalante v. Township of Cinnaminson, 283 N.J. Super. 244, 249 (App. Div. 1995), this court held that in order for a claimant to receive permission to file a late notice of tort claim, the claimant must make two showings: (1) the trial court must find that there are sufficient reasons justifying the claimant's failure to file within the ninety day period; and (2) the claimant must prove that the public entity may not be substantially prejudiced by the granting of the request.

We are satisfied that based on the facts in this record that plaintiff has failed to satisfy as a matter of law the statutory requirement that would permit a court to permit the late filing of a notice of tort claim. Plaintiff simply has not demonstrated "sufficient reasons" constituting "extraordinary circumstances." On the contrary, the evidence produced to Judge Curio, including the daily security reports handwritten by plaintiff, showed that plaintiff knew or should have known, even before the incident and certainly immediately after his injury upon receipt of a card and flowers from the HA, that he was assigned to work in a building operated by a public entity. Plaintiff did not provide any reason for his delay in filing other than the statement in his affidavit that asserts without explanation that he simply did not know that the SHRC was a public entity on the date of the incident. Accordingly, Judge Curio correctly denied plaintiff's motion.

Plaintiff argues, however, that the court erred in its denial of his motion for reconsideration. The decision to deny a motion for reconsideration is addressed to the court's discretion. See Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). "'Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. . . .'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Rule 4:49-2 states, in pertinent part, "The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." This court in Cummings upheld the denial of a reconsideration motion of a new theory advanced in a second reconsideration motion finding, "No new facts had been uncovered by plaintiff which would warrant either the first or second motion for reconsideration. Nor did plaintiff point to decisions that the motion judge had overlooked or misapplied when he granted defendant summary judgment." Cummings, supra, 295 N.J. Super. at 384.

In plaintiff's motion for reconsideration, plaintiff did not present any new or additional evidence not available at the time of his original motion as to why the judge's decision should be modified or reversed. See D'Atria, supra, 242 N.J. Super. at 401-02. The only new or additional evidence offered by plaintiff as explanation for his being unaware that he worked for a public entity in his affidavit in support of his motion for reconsideration was that a sign reading "No Trespassing" hung in the SHRC building and that the SHRC hired private security instead of city police officers or county sheriffs to check the identification of anyone seeking entrance to the building. This explanation was clearly available to defendant at the time his original motion was filed and does not constitute new evidence. Plaintiff simply restated the facts and arguments he had made in his original motion. The judge, however, carefully considered the arguments advanced by plaintiff and the evidence presented in his affidavits in support of both motions and stated her reasons clearly as to why she denied each motion. The facts supported Judge Curio's decision on each occasion that plaintiff failed to demonstrate that extraordinary circumstances existed to justify permitting the filing of a late notice of tort claim. The judge properly exercised her discretion in denying reconsideration and

correctly applied the applicable standard for reconsideration contained in Rule 4:49-2.

 
Affirmed.

 

 

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A-1894-04T5

December 28, 2005