ELLEN HEINE v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5739-11T1

ELLEN HEINE,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

Defendant,

and

CITY OF GARFIELD,

Defendant-Respondent.

______________________________________

April 25, 2013

April 25, 2013

 

Argued April 16, 2013 Decided

 

Before Judges Waugh and Leone.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3268-12.

 

Ellen Heine, appellant, argued the cause pro se.

 

Daniel R. Bevere argued the cause for respondent City of Garfield (Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys; Mr. Bevere, of counsel and on the brief).

PER CURIAM

Plaintiff Ellen Heine appeals from the trial judge's June 29, 2012 order. That order denied her motion to reconsider the judge's May 11, 2012 order. In the May 11 order, the court denied her motion to allow her to file nunc pro tunc a notice of tort claim against the City of Garfield and other entities.1 We affirm.2

Plaintiff is an experienced litigant in our court concerning her property on Van Bussum Avenue in Garfield.3 Indeed, after three Municipal Court trials in 2010 relating to the property, we overturned her convictions for refusing to allow construction officials to enter the property in 2009, holding that a city ordinance requiring homeowners to admit construction officials was unconstitutional as applied. State v. Heine, 424 N.J. Super. 48, 52-53, 59, 64-65, 67 (App. Div.) (Heine), appeal dismissed as moot, __ N.J. __ (Apr. 2, 2013).

This action also concerns the property on Van Bussum Avenue, which plaintiff alleges she was forced to vacate on September 14, 2010. Plaintiff, again representing herself, initiated this action by submitting and filing, on April 11 and 24, 2012, respectively, a motion to allow late filing of a notice of tort claim. She did not file an affidavit and failed to identify any tort claim that had accrued within one year of the filing of the motion.

The trial judge denied plaintiff's motion. The judge ruled that "[t]his notice of claim is not only outside of the 90 days as set forth in N.J.S.A. 59:8-8, but outside the extended period of one year as set forth in N.J.S.A. 59:8-9." Plaintiff filed a motion for reconsideration, asserting that "[t]here are events which have accrued during the past year," but not specifying what actions or dates she was referencing.

The trial judge denied plaintiff's motion for reconsideration. The judge acknowledged plaintiff's claims "that the municipal and governmental defendants have allegedly encroached on plaintiff's property, and are allegedly exerting custody and control over the property," and discussed a tax lien and condemnation proceedings. The judge emphasized that plaintiff did not "pinpoint when these actions occurred" or "state when her claims actually accrued."

Plaintiff appeals, claiming that N.J.S.A. 59:8-9 allows for late filing of a notice of tort claim here, that the trial judge misapprehended that the events were more than three years old, that there was no prejudice to the City of Garfield or Bergen County, and that tolling must be given consideration with respect to liability.

"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." N.J.S.A. 59:8-8. The only exception is provided by N.J.S.A. 59:8-9:

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 . . . .

 

This statute commits the authority to grant a plaintiff's motion for leave to file late notice "to the sound discretion of the trial court, and [its decision] will be sustained on appeal in the absence of a showing of an abuse thereof." Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988). Furthermore, we must uphold a trial court's denial of reconsideration absent an "abuse of discretion." Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). We must hew to those standards of review.

Plaintiff here failed to meet any of the requirements of N.J.S.A. 59:8-9. Her motion was not "supported by affidavits based upon personal knowledge of the affiant." Ibid. In S.P. v. Collier High School, 319 N.J. Super. 452, 465 (App. Div. 1999), we found a motion inadequate where the plaintiff submitted no affidavit based upon personal knowledge, but instead relied on an attorney's affidavit. Here, plaintiff submitted no affidavit at all with her motion.

Moreover, plaintiff's motion did not detail any tort claim which had accrued during the one-year period prior to her filing of the motion. N.J.S.A. 59:8-9 "permits a court to allow a plaintiff to file a late notice of a claim under 'extraordinary circumstances,' if the motion is made within one year of the accrual of the claim." Lowe v. Zarghami, 158 N.J. 606, 613 (1999); Maher v. Cnty. of Mercer, 384 N.J. Super. 182, 186 (App. Div. 2006). A motion thus must demonstrate that the tort claim accrued within one year of the filing of the motion. Indeed, the whole premise of the motion is that, if granted, the plaintiff will immediately provide all the information required for a notice of tort claim, including "[t]he date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted." N.J.S.A. 59:8-4(c). Without an allegation detailing that a tort claim accrued during the one-year period, the trial judge could not grant the motion. See N.J.S.A. 59:8-8, -9; Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 532 (App. Div. 1989).

Both the city and the trial judge tried unsuccessfully to identify the tort claims plaintiff was seeking to notice. Her motion referred to Heine and her federal lawsuit, Heine v. City of Garfield, 2:11-cv-2655 (ES-CLW). Stating that "it is unclear as to what claims she is seeking to file a Tort Claim," the city "presum[ed]" that she was seeking "to preserve whatever state law causes of action she believes that she has arising out of the facts alleged in the Federal Civil Rights Complaint," and argued that she had not shown extraordinary circumstances. After plaintiff's reply brief focused more on Heine, the judge presumed that plaintiff was seeking to preserve tort claims relating to the 2009 attempts to search involved in Heine. The judge found that her "claim accrued when the government entities completed their alleged illegal actions," that she "knew of her claim in March 2010 when a third municipal trial addressing the underlying incidents occurred," and that she had failed to show extraordinary circumstances for waiting so long to file her motion.

On appeal, plaintiff states that the actions we addressed in Heine, and the claims raised in her federal complaint, "are not the ills complained of in the Motion" to file a late notice of tort. Plaintiff faults the trial judge and the city for not realizing what tort claims she was raising in her motion. However, plaintiff herself is to blame, because her motion failed to identify any tort claim that accrued within one year of the motion.

In her appellate brief, plaintiff claims that "[t]he actions that are the subject of the motion are within one year" of the motion. She states that those claims "include property that was converted," but gives no other details. She adds that those claims also include "a dwelling that was boarded up without any decommissioning permits," and later states that "the City of Garfield and the County of Bergen . . . . [i]n May 2011 . . . boarded up the building without notice." She also mentions, but does not specify as claims included in the motion, that "[i]n April of 2011, the City of Garfield and the County of Bergen went onto the property and into the house without warrants or permission," and "[i]n May 2011 they removed pets," apparently referring to cats allegedly removed by the city or "the Bergen County Prosecutor's Office SPCA." In her appellate reply brief, plaintiff alleges that two friends were cited or removed for approaching the property in April and May, 2011.4

Plaintiff failed to detail these alleged tort claims in her motion to the trial judge, however. In her motion, she stated that "[m]ost of my claims arise out of unauthorized entry into my home," but provided no dates or other details. In her motion reply brief, she mentioned that at some unspecified time after September 7, 2010, Garfield "boarded-up the building with none of the required decommissioning permits," but she did not identify boarding-up as a tort claim she was seeking to notice, let alone state that it accrued within one year of her April 2012 motion. In her motion for reconsideration, plaintiff mentioned that "within the last year, the City '[b]oarded up' the building," but again failed to state that was a tort claim she wished to notice.

Plaintiff apparently attached a number of documents to her motion for reconsideration. The trial judge stated that "[a]ll the exhibits attached to plaintiff's moving papers reflect landlord-tenant and condemnation actions from the fall of 2010." In her appellate appendix, she attaches a document relating to animal control and boarding up the house.5 Even if this document was attached to her reconsideration motion, neither it nor plaintiff in any way alerted the judge that these events were the tort claims she sought to notice. Moreover, plaintiff does not claim that she was unaware of and unable to include these facts in her original motion, so she cannot show that those facts were matters that the judge "overlooked." R. 4:49 2; Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010).

Not only did plaintiff fail to identify in her motion the tort claims that had accrued in the last year, but she also failed to show "extraordinary circumstances" as required by N.J.S.A. 59:8-9. In her April 2012 motion, plaintiff claimed that she was not aware of the tort claims that had been accrued within one year of her motion. However, in her federal complaint filed in May 2011, plaintiff alleged: that the city's police entered the property and "removed items that they refused to return;" that "[i]n September through November of 2010 and April through May of 2011, the City's inspectors and agents of the City came to the property and entered the building at will even when the doors were locked and 'No trespassing' signs were displayed;" and that "[d]uring April 2011, the City . . . voic[ed] restrictions on talking or walking near the property."6 Plaintiff has offered neither the trial judge nor us any extraordinary circumstances why, armed with this knowledge, she did not act "to file notice of claim within the [ninety-day] 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." N.J.S.A. 59:8-9. Instead, she filed her motion eleven months after her federal complaint. See Wood v. Cnty. Of Burlington, 302 N.J. Super. 371, 380 (App. Div. 1997) (nine months is not a "reasonable time").

Plaintiff does not claim to have been ignorant that her property was boarded up or pets removed in May 2011. Even assuming plaintiff was unaware of these events when they occurred, she failed to show when those claims accrued under the discovery rule. "The discovery rule tolls the commencement of the [one-year] period only '[u]ntil the existence of an injury (or, knowledge of the fact that a third party has caused it) is ascertained.'" McDade v. Siazon, 208 N.J. 463, 475 (2011) (citation omitted). "The test for the application of the discovery rule is 'whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another.'" Ibid. (same). Plaintiff has failed to show that a reasonable person exercising ordinary diligence would not know that her home had been boarded up, or pets removed, far more promptly than the eleven months it took plaintiff to file a motion. See id. at 477-79 (extraordinary circumstances do not exist when "'an inspection of the area within a reasonable time'" would have revealed the needed information (quoting Blank v. City of Elizabeth, 162 N.J. 150, 151-52 (1999))).

Thus, plaintiff has not met the "strict standard" of extraordinary circumstances. Zois v. New Jersey Sports & Exposition Auth., 286 N.J. Super. 670, 673 (App. Div. 1996). The Supreme Court has recently emphasized that "[t]he Legislature has commanded that relief be granted only in circumstances that are extraordinary." D.D. v. Univ. of Med. & Dentistry of New Jersey, 213 N.J. 130, 158 (2013) (citations omitted). This is a "more demanding" and "more exacting" standard than previously applied. Id. at 148. "Courts faced with applications for leave to file a late notice of claim, therefore, must proceed with their evaluation mindful of the Legislature's direction that the proofs demonstrate circumstances that are not merely sufficient, but that they instead be extraordinary." Id. at 149.7

P

laintiff's motion failed to identify the tort claims that accrued in the year before the motion, let alone to show extraordinary circumstances for waiting eleven months to raise them.8 Accordingly, we hold that the trial judge did not abuse his discretion in denying her motions.

Affirmed.

1 Plaintiff's filings, the judge's orders, and the notice of appeal asserted that the action was against the "State of New Jersey et al.," without ever naming the other entities. Only the City of Garfield and the Bergen County Prosecutor's Office filed briefs in the trial court, and only the city has filed a brief before us.

 

2 We assume for purposes of this opinion that the appeal addresses both orders. See Fusco v. Board of Ed., 349 N.J. Super. 455 (App. Div.), certif. denied, 174 N.J. 544 (2002).

 

3 State v. Heine, No. A-2804-08 (App. Div. Dec. 7, 2009); In re Gilbert, No. A-1119-09 (App. Div. Oct. 26, 2010), certif. denied, 209 N.J. 233 (2012); State v. Heine, No. A-0087-10 (App. Div. Jan. 20, 2012), certif. denied, 211 N.J. 608 (2012); State v. Heine, No. A-0925-10 (App. Div. Feb. 6, 2012), appeal dismissed as moot, __ N.J. __ (Apr. 2, 2013); State v. Heine, No. A-4022-10 (App. Div. Oct. 29, 2012).

4 Plaintiff has not suggested how actions against friends, outside a building in which plaintiff no longer lived, could constitute a tort against plaintiff.

5 The document appears to be a computer "screen shot," on which "from Garfield tax office 5/31/12" is handwritten, and appears to state that: on May 17, 2011, the City paid a contractor hired to "board up" the property; and on May 26, 2011, the City paid for "animal control." Plaintiff on appeal claims that the document is a city tax lien.

6 Plaintiff also alleged that there had been "a public meeting about pets at City Hall."

7 Prior to D.D., the Supreme Court had adopted the approach that courts should "examine[] 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.'" S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107, 122 (1977) (quoting California cases). Plaintiff's claim fails even under that approach.

 

8 Because plaintiff failed to meet the above requirements of N.J.S.A. 59:8-9, we need not determine whether defendants could be substantially prejudiced by the granting of plaintiff's motion to file a late notice. See Rogers v. Cape May Cnty. Office of Public Defender, 208 N.J. 414, 427-28 (2011).