JEAN COLLINS v. EDISON TOWNSHIP HOUSING AUTHORITY, A Division of EDISON TOWNSHIP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3776-06T13776-06T1

JEAN COLLINS,

Plaintiff-Appellant,

v.

EDISON TOWNSHIP HOUSING

AUTHORITY, A Division of

EDISON TOWNSHIP,

Defendant-Respondent.

___________________________________

 

Submitted October 23, 2007 - Decided

Before Judges Fuentes and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-9944-06.

Slavin & Morse, attorneys for appellant

(Anthony Fazioli, on the brief).

Greenberg Minasian, attorneys for respondent

(Lawrence D. Minasian, on the brief).

PER CURIAM

Plaintiff Jean Collins appeals from an order entered by the Law Division dismissing her complaint with prejudice for failure to file a timely notice of claim as required by the Tort Claims Act (TCA), N.J.S.A. 59:8-8. Plaintiff argues that there are sufficient circumstances to explain or otherwise justify her failure to file a notice of claim within ninety days of her incident, and that Edison Housing Authority (EHA) was under constructive notice of her claim when she filed a late notice of claim with Edison Township.

The trial court found that the EHA was not served with a TCA notice of claim within the statutory period, and that plaintiff's filing of the notice of claim on Edison Township did not place the EHA on constructive notice of her claim. We agree and affirm.

These are the salient facts. On June 29, 2005, plaintiff Jean Collins slipped and fell on a drainage pipe near the sidewalk of her residence, located at 5K Willard Dunham Drive, Edison, New Jersey. The EHA owns that property. Soon after the incident, plaintiff met with an attorney and was eventually referred to her current counsel in November 2005. On December 19, 2005, plaintiff's counsel mailed a TCA notice of claim to the administrator of Edison Township.

On July 10, 2006, QualCare, Inc., the third party administrator for Edison Township, contacted plaintiff's counsel, stating that the accident was subject to the TCA, that a notice of claim must be filed within ninety days of the incident, and that an order from the Superior Court allowing for a late filing could only be granted within one year of the incident. Enclosed with the letter was a form, entitled "Claim Form," to be completed by plaintiff and forwarded to QualCare. Plaintiff completed the claim form on September 11, 2006.

On September 22, 2006, QualCare denied plaintiff's claim for damages due to the failure to file the notice of claim within ninety days of the incident. On October 26, 2006, plaintiff's counsel wrote QualCare advising it that even though the notice of claim was filed after the ninety-day requirement, he believed there were circumstances which permitted the case to go forward. It was thus his intention to file suit against Edison Township within the timeframe provided in the relevant statute of limitations.

On December 11, 2006, plaintiff filed a complaint against EHA "as a division of Edison Township," alleging that EHA's failure to maintain its premises was the direct and proximate cause of the injuries sustained by plaintiff. On January 24, 2007, EHA moved before the Law Division to dismiss plaintiff's complaint with prejudice for failure to file a timely TCA notice of claim. An accompanying certification by Madeline Cook, the executive director for EHA, stated that: (1) EHA is independent and separate from Edison Township; (2) the Township is not EHA's registered agent; (3) the Township is not authorized to accept service on EHA's behalf; and (4) EHA was never served with a notice of claim for this matter.

In response to EHA's motion to dismiss, plaintiff's counsel acknowledged that the ninety-day deadline to file the notice of claim was September 27, 2005. Counsel also advised the court that his firm had not been involved in the law suit until November 2005; and that plaintiff, an elderly woman, was not personally aware of the TCA's requirements. Finally, counsel asserted that his initial investigation had revealed that EHA was a division of Edison Township.

In response, the EHA emphasized that, despite these allegations: (1) plaintiff never sought leave from the court to file a late notice of claim; (2) a simple inquiry to the municipal tax assessor would have revealed that the EHA owns the property; and (3) as a longtime tenant of the EHA, plaintiff should have been aware of EHA's status as a separate entity, independent from the Township.

Given the record developed by the parties, Judge Happas viewed EHA's application to dismiss as a motion for summary judgment. In this context, Judge Happas held that EHA had not been served with a notice of claim within the statutory period. The court also found that EHA was not a subordinate branch of Edison Township. The court thus held that plaintiff's filing of the notice of claim on Edison Township was legally insufficient to satisfy the notice requirements of the TCA.

We review the grant of summary judgment using the same standards used by the trial court. Kramer v. Ciba-Geigy Corp., 371 N.J. Super. 580, 602 (App. Div. 2004). Summary judgment is warranted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

In determining whether there is a genuine issue of fact, the motion judge is required to consider whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Under the TCA, a claim of the type involved here cannot be brought against a public entity or public employee unless the procedural requirements of the Act have been followed. N.J.S.A. 59:8-3. The Act provides that "[a] claim for injury or damages . . . against a local public entity shall be filed with that entity." N.J.S.A. 59:8-7. Regarding the time in which a claim must be presented, N.J.S.A. 59:8-8 provides:

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. After the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. 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 90 days of accrual of his claim except as otherwise provided in section 59:8-9 . . . . (Emphasis added.)

Regarding the filing of notice of late claim, 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.

The underlying purpose of the notice requirement set forth in N.J.S.A. 59:8-8 is to "expedite investigation with the hope of reaching a nonjudicial settlement and to allow the public entity prompt access to information about the claim so that it may prepare a defense." Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 533 (App. Div. 1989). Specifically, the goals of the notice of claim provisions of the TCA are:

(1) "to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit"; (2) "to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense"; (3) "to afford the public entity a chance to correct the conditions or practices which gave rise to the claim"; and (4) "to inform the [public entity] in advance as to the indebtedness or liability that it may be expected to meet."
 
[Henderson v. Herman, 373 N.J. Super. 625, 634 (App. Div. 2004) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)).]

We have emphasized that "[t]he filing of a notice of claim more than 90 days after the accrual of a claim without leave of court is a nullity." Priore v. State, 190 N.J. Super. 127, 130 (App. Div. 1983), overruled on other grounds, Moon v. Warren Haven Nursing Home, 182 N.J. 507 (2005). The filing of a notice of claim after the ninety-day period without leave of the court "does not confer jurisdiction upon the court to grant leave to file a late notice of claim beyond the one year period." Ibid. Thus,

it is clear that a judge is powerless under the statute to exercise any discretion or to act after a period of one year has elapsed from the date on which the cause of action accrued, where application to the court by motion for permission to file a late notice of claim has not been made within the year.

[Fuller v. Rutgers, State Univ., 154 N.J. Super. 420, 423 (App. Div. 1977), certif. denied, 75 N.J. 610 (1978).]

Here, the ninety-day deadline was September 27, 2005. Plaintiff did not file a notice of claim until December 19, 2005. It is thus incontestable that plaintiff did not file the notice of claim within ninety days of the date of her accident. She also did not seek leave of the court to file a late notice of claim pursuant to N.J.S.A. 59:8-9. Under Priore and Fuller, the trial court did not have jurisdiction over a complaint against a public entity where a notice of claim was not filed within ninety days and leave to file a late notice of claim was never sought. Furthermore, by that time plaintiff filed the complaint against EHA on December 11, 2006, the one-year period for seeking leave to file a late notice of claim under N.J.S.A. 59:8-9 had passed.

Against these facts, and in light of the prevailing legal standards discussed, we are satisfied that the trial court correctly dismissed plaintiff's cause of action with prejudice. Affirmed.

 

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9

A-3776-06T1

November 9, 2007