JAMAR DEMBY v. STATE OF NEW JERSEY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5572-04T25572-04T2

JAMAR DEMBY,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, OFFICER C.

CAMBELL #1196, DETECTIVE R. PEREZ

#229, CAMDEN COUNTY PROSECUTORS

OFFICE, and CAMDEN POLICE DEPARTMENT,

Defendants-Respondents.

_________________________________

 

Submitted February 6, 2006 - Decided February 17, 2006

Before Judges Cuff and Lintner.

On appeal from the Superior Court of

New Jersey, Law Division, Camden County,

L-4083-05.

Jamar Demby, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Christina M. Glogoff, Deputy Attorney General, on the brief).

PER CURIAM

On May 11, 2005, plaintiff, Jamar Demby, moved for leave to file a late notice of claim, pursuant to N.J.S.A. 59:8-9, against defendants, State of New Jersey, Camden County Prosecutors Office, Camden Police Officer C. Cambell, and Detective R. Perez. Plaintiff asserted in his motion that on July 18, 2004, defendants wrongfully arrested and incarcerated him, without probable cause, for robberies reported on July 15, and 17, 2004, for which he was later indicted in December 2004. The Law Division judge denied plaintiff's application. Plaintiff appeals, and we affirm.

N.J.S.A. 59:8-8 requires a claimant to file a notice of claim no later than the ninetieth day after accrual of the cause of action. N.J.S.A. 59:8-9, pertaining to late notice of claim, 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.

The language of N.J.S.A. 59:8-9 came about as the result of a 1994 amendment that sought "to raise the bar for the filing of late notice from a 'fairly permissive standard' to a 'more demanding' one." Beauchamp v. Amedio, 164 N.J. 111, 118 (2000) (quoting Lowe v. Zarghami, 158 N.J. 606, 625 (1999)). In order to succeed on a motion to file a late notice of claim, a plaintiff must show (1) that sufficient reasons constituting "extraordinary circumstances" exist for the failure to file a notice of claim within ninety days or to file a motion seeking leave to file a late notice "within a reasonable time thereafter," and (2) that the public employee or entity has not been substantially prejudiced by the delay. Wood v. County of Burlington, 302 N.J. Super. 371, 379 (App. Div. 1997). The statute does not define "extraordinary circumstances" so the determination is dependant on the facts of each case. Allen v. Krause, 306 N.J. Super. 448, 455 (App. Div. 1997); O'Neill v. City of Newark, 304 N.J. Super. 543, 551 (App. Div. 1997).

The notice provisions of the Tort Claims Act are not intended as "'a trap for the unwary.'" Lowe, supra, 158 N.J. at 629 (quoting Murray v. Brown, 259 N.J. Super. 360, 365 (Law Div. 1991)). Generally, an appellate court examines "'more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application.'" Id. at 629 (quoting Feinberg v. State Dept. of Envtl. Prot., 137 N.J. 126, 134 (1994)). Despite the 1994 amendments, the standard for appellate review of the trial court's disposal of such an application remains abuse of discretion. O'Neill, supra, 304 N.J. Super. at 550.

 
Defendant claims that he was unaware of the circumstances surrounding his arrest until he reviewed the discovery related to the criminal case, specifically, the incident report filed by Officer Cambell on July 16 and 17, 2004. His motion papers, however, failed to provide any information shedding light on when he first received those reports. Further, defendant failed to provide an explanation establishing extraordinary circumstances for his failure to file a notice of claim within ninety days, or to seek leave to file a late notice within a reasonable time thereafter. His supporting papers did not address the lack of substantial prejudice to defendants by his failure to file within the statutory period. Accordingly, we affirm.

(continued)

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A-5572-04T2

February 17, 2006