RITA GILMARTIN v. PATROLMAN JASON KREIG PEMBERTON TOWNSHIP BURLINGTON COUNTY

`1NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RITA GILMARTIN,

Plaintiff-Appellant,

v.

PATROLMAN JASON KREIG,

PEMBERTON TOWNSHIP,

BURLINGTON COUNTY and

THE STATE OF NEW JERSEY,

Defendants-Respondents.

_______________________________________________

May 7, 2014

Before Judges Ashrafi and St. John.

On appeal before Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2770-12.

Kalish Law Group, attorneys for appellant (Jared I. Kalish, on the briefs).

Gluck Walrath, LLP, attorneys for respondents Patrolman Jason Kreig and Pemberton Township (David A. Clark, of counsel and on the brief; Brett E. Halpern, on the brief).

PER CURIAM

Plaintiff Rita Gilmartin appeals from a November 12, 2012 order denying her motion for leave to file a late notice of tort claim. We affirm.

In her motion papers and at oral argument before the motion judge on November 12, 2012, plaintiff contended that defendant Jason Kreig, a Pemberton Township police officer, responded to an accident that plaintiff was involved in on October 2, 2011. He brought plaintiff to the police station and asked her to submit to a breathalyzer, which she refused. Plaintiff was issued several summonses, including driving while intoxicated. N.J.S.A. 39:4-50. Plaintiff contends that while at the police station, Kreig sexually assaulted her, and also that he harassed her during the time period from October 2, 2011 to February 28, 2012. She contends that on October 3, her father telephoned the police department of defendant Pemberton Township to express that "there was a funny set of circumstances that went down with the police officer that attended to her at the accident." Plaintiff also stated that she and her father consulted with their family lawyer, but that he declined to take the case due to a conflict; that she and her father reported these allegations to the Attorney General's Office; and that the Burlington County Prosecutor's Office conducted an investigation into the allegations. She further represents that as of October 2, 2012, she had not been advised of the results of the prosecutor's investigation.

Plaintiff claims that the reason that she did not file her tort claims notice in a timely manner was that she had never heard the outcome of the investigation of Kreig by the prosecutor and that she had been waiting months for the results, "but they will not talk to me or tell me what I am to do."

At oral argument, plaintiff also offered as justification for not filing her notice, "Just I didn't know what to do." Plaintiff did not represent that she had filed at any time a written tort claim notice with any defendant, but that her father did notify the Pemberton Police Department by telephone shortly after the October 2 incident of the accusations against Kreig. In addition, she and her father contacted both the Office of the Attorney General and the prosecutor.

In denying plaintiff's motion for leave to file a late notice of tort claim, the motion judge, in an oral opinion, determined that plaintiff had not met her burden and, therefore, "I can't find any extraordinary circumstances to allow me to grant your application."

On appeal, plaintiff argues that she "has shown sufficient reasons constituting extraordinary circumstances for the late filing." She further contends that "defendants should be estopped from asserting plaintiff's non-compliance with the torts claim act."

In New Jersey, the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, governs claims against a public entity for money damages. "'[T]he Act establishes the procedures by which claims may be brought,' including a mandatory pre-suit notification of [the] claim." Rogers v. Cape May Cnty. Office of the Pub. Defender, 208 N.J. 414, 420 (2011) (quoting Beauchamp v. Amedio, 164 N.J. 111, 116 (2000)). N.J.S.A. 59:8-8 requires that:

A claim relating to a cause of action . . . for injury or damage to person or to property shall be presented . . . 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) The claimant failed to file the claim with the public entity within 90 days of accrual of his claim except as otherwise provided in N.J.S.A. 59:8-9 . . . .

Plaintiff filed her motion for leave to file a late notice of claim in the Law Division on October 2, 2012. In support of her motion, she stated in a certification that her father reported the accusations to Pemberton Township, the prosecutor, and the Attorney General's Office and that, "I have been waiting for months for the results, but they will not talk to me or tell me what I am to do." In response to plaintiff's motion to file a late notice of claim, defendant Pemberton Township, essentially argued that she had not shown "extraordinary circumstances" for the relief she sought, as required by N.J.S.A. 59:8-9. That statute 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.

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

The statute expressly grants the Law Division discretion to determine what facts justify a late notice of claim. N.J.S.A. 59:8-9. "Although deference will ordinarily be given to the factual findings that undergird the trial court's decision, the court's conclusions will be overturned if they were reached under a misconception of the law." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013) (citing McDade v. Siazon, 208 N.J. 463, 473-74 (2011)).

A misconception of the law was found by the Supreme Court in the lower courts' decisions in D.D. granting a claimant leave to file a late notice. If there was any question previously that the circumstances must be truly "extraordinary" to warrant a late notice, D.D. laid that doubt to rest. The Court held that the claimant's assertions of medical problems and her attorney's failure to follow up on her claims and file a timely notice did not justify permitting her to file a notice about two months after the deadline had passed. Id. at 149, 157. The claimant's assertion of inability to address the issue personally because of psychological and emotional trauma caused by defendant's conduct did not warrant relaxing the deadline. Id. at 149-51. Nor was it a sufficient reason that the claimant had received poor legal representation from her attorney. Id. at 156-57. The Court emphasized the Legislature's "strong message" by enacting the 1994 amendment that leave to file a late notice of claim "should be granted less frequently." Id. at 157.

Here, the Law Division made its ruling before the Supreme Court's opinion was issued in D.D. However, the motion judge's decision is clearly consonant with the Court's decision in D.D. Because plaintiff offered the motion judge no justifiable reason for her failure to file a timely claim, much less one constituting extraordinary circumstances, the court was precluded from granting her motion. Ibid. ("The Legislature's waiver of sovereign immunity remains a limited one and we are not free to expand that waiver beyond its statutorily-established boundaries.").

Plaintiff also argues that defendants should have been equitably estopped from seeking dismissal of her complaint. In support of that contention, plaintiff relies upon Hill v. Bd. of Educ. of Middletown, 183 N.J. Super. 36 (App. Div.), certif. denied, 91 N.J. 233 (1982). In that case, the plaintiff failed to provide the public entity with notice as required by the TCA. Id. at 38-39. The public entity had not, however, specifically pled the lack of compliance with the TCA's notice requirements in its answer. Id. at 40-41.

Moreover, the public entity waited more than two and one-half years to file a motion raising the issue and, in the interim, had "obtained complete discovery in the form of answers to interrogatories, depositions and a physical examination." Id. at 41. We held that the public entity was estopped from asserting that the plaintiff's action was barred due to the failure to comply with the TCA's notice requirements. Id. at 41. The court noted that the public entity's "conduct created the objective impression that it was waiving the notice requirements, especially in view of its failure to properly plead this defense." Ibid.

We are satisfied that, under the circumstances, no defendant did "create[] the objective impression that it was waiving the notice requirements[.]" Ibid. We conclude that the motion judge correctly determined that defendants could not be estopped from asserting that plaintiff's failure to comply with the TCA's notice requirements barred her from pursuing the claims against them in this lawsuit.

Affirmed.