NA-IL JOHNSON v. HOUSING AUTHORITY CITY OF NEWARK et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0961-04T30961-04T3

NA-IL JOHNSON,

Plaintiff-Appellant,

v.

HOUSING AUTHORITY OF THE

CITY OF NEWARK and CITY OF

NEWARK,

Defendants-Respondents.

_____________________________

 

Argued September 27, 2005 - Decided February 7, 2006

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, L-6750-04.

Nishall N. Jairam argued the cause for

appellant Cohn, Bracaglia & Gropper, attorneys;

Ned M. Cohn, of counsel and on the brief).

James G. Serritella argued the cause for

respondent Housing Authority of the City of

Newark (Buttafuoco, Arce & Price, attorneys;

Mr. Serritella, of counsel and on the brief).

Gary S. Lipshutz argued the cause for

respondent City of Newark (Joanne Y. Watson,

attorney; Mr. Lipshutz, on the brief).

PER CURIAM

Plaintiff Na-il Johnson appeals from the denial of his motion for leave to file late notices of claim under the Tort Claims Act (TCA) against the defendants, the Housing Authority of the City of Newark and the City of Newark, asserting that there were "extraordinary circumstances" within the meaning of N.J.S.A. 59:8-9 to permit late filing. We affirm.

In his supporting certification defendant described a shocking criminal incident when he was victimized by four unknown assailants. He related that in the early afternoon of September 30, 2003, he was walking to his cousin's apartment in the Bradley Court Housing Complex in Newark when four masked men abducted him, dragged him into an apartment, held him at gunpoint and told to strip to his underwear. He was "hog-tied," gagged and repeatedly punched and kicked by the four men who demanded money while calling him "Ibn." He certified that he was hit with a gun over the eye, burned on the chest with a heated knife, and shot in the upper right arm. He managed to escape by jumping out a window and was then found by an employee of the complex. Both police and hospital emergency personnel responded and plaintiff was transported by ambulance to the emergency room at University Hospital, where he remained for five days. His discharge summary gave diagnoses of "multiple stab wounds to the right shoulder, right back, right eyebrow and abdomen; right pneumothorax; and hypovolemic/traumatic shock." Noting that plaintiff was "doing very well," the attending physician discharged plaintiff with a prescription for Percocet in case of severe pain and instructions not to lift anything heavier than twenty-five pounds or engage in sports or rough activity for four to six weeks. He was given a follow-up appointment for October 7, 2003, but nothing indicates he kept the appointment or received any medical attention due to his injuries.

The initial police report of September 30, 2003, listed plaintiff's as "John Doe" because he was rushed to the hospital before the officer obtained the identification. A supplemental report the following day correctly identified plaintiff, and related that he had been interviewed and told to give a statement to the investigating officer after his release from the hospital.

Plaintiff filed his TCA notice of claim with the City of Newark on July 12, 2004. He filed with the Housing Authority on August 18, 2004. The ninety-day limit of N.J.S.A. 59:8-8 expired on December 30, 2003. In plaintiff's late notices he stated that the injuries he suffered from the attack were the proximate result of the failure of the public entities to provide adequate protection in the common areas of the Bradley Court complex where the risk of criminal activity was well-known and reasonably foreseeable. Plaintiff filed a motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9 on August 20, 2004, nearly eleven months after the accrual of the claim, and submitted a certification in support of his contention that "extraordinary circumstances" prevented him from filing within the statutory period.

"The purpose of the 90-day limit [of N.J.S.A. 59:8-8] is to 'compel a claimant to expose his intention and information early in the process in order to permit the public entity to undertake an investigation while witnesses are available and the facts are fresh.'" O'Neill v. City of Newark, 304 N.J. Super. 543 (App. Div. 1997) (quoting from Lutz v. Tp. of Gloucester, 153 N.J. Super. 461, 466 (App. Div. 1977)). Late filing of a notice of claim is permissible if the requirements of N.J.S.A. 59:8-9 are met. As originally enacted, N.J.S.A. 59:8-9 permitting late filing upon a showing of "sufficient reasons" for failing to meet the deadline, but the 1994 amendment imposed the stricter standard of "extraordinary circumstances."

Newberry v. Tp. of Pemberton, 319 N.J. Super. 671, 680 (App. Div. 1999); Zois v. New Jersey Sports & Exposition Authority, 286 N.J. Super. 670, 675 (App. Div. 1996). While on review we interpret "extraordinary circumstances" on a case-by-case basis, Ohlweiler v. Tp. of Chatham, 290 N.J. Super. 399, 404 (App. Div. 1996), and give close scrutiny to those instances where permission to file a late claim is denied and we resolve doubts in favor of the permitting late filing. Lowe v. Zarghami, 158 N.J. 606, 629 (1999); Feinberg v. State D.E.P., 137 N.J. 126, 134 (1994).

In the instant case plaintiff sets forth the following reasons as "extraordinary circumstances" to justify a late filing: (1) his ignorance of the ninety-day limitation; (2) his physical injuries were so incapacitating that he could not be expected to comply with the ninety-day requirement; (3) he suffered psychological trauma so that he could not comply; and (4) he was unable to obtain necessary medical and police records required to file the claim notices.

Plaintiff states he was unaware of the ninety-day notice requirement and adds that it was reasonable for him to assume the public entities knew of the incident because a housing complex employee found him after the attack and the Newark police investigated the incident, which was reported in the press. He relies upon Randazzo v. Tp. of Washington, 286 N.J. Super. 215 (App. Div. 1995), in which we stated that ignorance of the law was a relevant consideration in allowing a late claim. However, Randazzo preceded the 1994 statutory amendment and was decided under the more lenient standard of "sufficient reasons." Id. at 218-19, n.1. Moreover, we held that ignorance of the statutory requirement without more did not constitute "sufficient reasons." Id. at 219. See also O'Neill, supra, 304 N.J. Super. at 552-53. ("We find no hint of a legislative intent that the time to give notice should be extended until the party discovers a public entity is involved.") See also Escalante v. Tp. of Cinnaminson, 283 N.J. Super. 244 (App. Div. 1995).

In O'Neill, the plaintiff was a Newark transit police officer who was shot in the line of duty, suffering nerve damage and post-traumatic stress disorder as a result. As in the instant case, he did not consult with an attorney until the ninety-day limitation period had expired. In language obviously applicable to the case at bar, we found that:

[P]laintiff was aware of the circumstances surrounding and the severity of his injury. As a result, there was no surprise as to the nature of his injury which would justify taking so long to contact an attorney. [Citation omitted.] It was his obligation to seek legal advice as to his remedies, as long as he was physically and psychologically capable. We are convinced that his physical incapacitation and confinement to his home in the days before and after his October surgery cannot be said to have prevented him from contacting an attorney or otherwise acting to protect his rights.

[O'Neill, supra, 304 N.J. Super. at 553.]

 
Nothing in plaintiff's certification indicates that he was physically or psychologically unable to call an attorney or go to an attorney's office. Moreover, his argument that the ninety-day deadline should be extended due to his inability to obtain medical records also lacks merit. The notice of claim requires only basic general information: the claimant's name and address, the date and place of accident, the name of the public entities, a description of the injury or damage so far as known, and the estimate of damage, if known at that time. N.J.S.A. 59:8-4. See Guerrero v. City of Newark, 216 N.J. Super. 66, 72-73 (App. Div. 1987).

Affirmed.

We note that the University Hospital emergency room staff confirmed to the responding police officer that plaintiff suffered stab wounds but "no bullet holes." Similarly, the discharge summary describes plaintiff's physical injuries as multiple stab wounds with no mention of any bullet wounds.

A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter 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 or public employee if:

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

[N.J.S.A. 59:8-8.]

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 public employer has not been substantially prejudice 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.

[N.J.S.A. 59:8-9.]

In his certification plaintiff says that the delay in locating and obtaining his medical reports was because University Hospital personnel elected to protect his identity. These statements are obviously hearsay rather than the "first hand knowledge" as required by N.J.S.A. 59:8-9. Also the contention that the hospital acted to conceal his identity is belied by the discharge summary, which states his name and bears his signature.

(continued)

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A-0961-04T3

February 7, 2006