R.B., Sr. v. STATE OF NEW JERSEY

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

R.B., Sr.,1 and

N.R.B., Jr. I.,

Plaintiffs-Appellants,

v.

STATE OF NEW JERSEY, THE NEW JERSEY

DEPARTMENT OF YOUTH AND FAMILY

SERVICES,2 LAURA DAVIS, Head

Supervisor of DYFS, ANNDRIA

CALDWELL, Supervisor, Family

Specialist II, and LASHONDA DRAKE,

Case Worker, Family Service

Specialist, II,

Defendants-Respondents.

___________________________________

February 28, 2014

Argued September 18, 2013 Decided

Before Judges Waugh, Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-889-12.

R.B., Sr., appellant, argued the cause pro se.

Benjamin E. Bryant, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Bryant, on the brief).

PER CURIAM

Plaintiff R.B., Sr. appeals from a March 2, 2012 order denying his motion for leave to file a late notice of tort claim. We affirm.

Just prior to a scheduled guardianship trial in which the Division sought to terminate his parental rights to his son N.R.B., Jr. I. (N.R.B.), plaintiff filed a motion for leave to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9. In the January 24, 2012 affidavit in support of the motion, plaintiff alleges that the State filed a guardianship complaint against him; failed to provide him with services; and inappropriately placed his son in foster care, causing plaintiff to suffer "great emotional and psychological stress and abuse." The only date referenced in the affidavit is February 7, 2011, the date plaintiff claims that the judge presiding over the guardianship matter told plaintiff that he would release N.R.B. into his custody if he took a DNA test to confirm he was the child's father. The guardianship complaint of which plaintiff complains was filed on January 11, 2011.

N.J.S.A. 59:8-8 requires that claims for damages against public entities must be filed within ninety days of their accrual. Beauchamp v. Amedio, 164 N.J. 111, 116 (2000) (discussing the procedural requirements of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3). Although the period for filing is short, any harshness is alleviated by N.J.S.A. 59:8-9, which allows for the filing of late claims. Rogers v. Cape May Cnty. Office of the Pub. Defender, 208 N.J. 414, 420 (2011). That statute provides in pertinent part:

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 . . . .

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

Although plaintiff styled his motion as one for permission to file a late notice of tort claim, thereby acknowledging that he was beyond the ninety-day period, and submitted an affidavit on personal knowledge, he failed to address the reasons for his failure to file a timely claim. As the Supreme Court has recently reiterated, "[t]he Legislature has commanded that relief be granted only in circumstances that are extraordinary." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 158 (2013). Because plaintiff offered the trial court no reason for his failure to file a timely claim, much less one constituting extraordinary circumstances, the court was precluded from granting his 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.").

Affirmed.

1 We refer to appellant, R.B., Sr., by his initials because his claims relate to A-3353-11T4, which is impounded. Because of that connection, we have likewise impounded this case. The facts giving rise to this claim are more fully set forth in our opinion in that related matter.

2 In June 2012, the Department of Children and Families was reorganized and the Division (mischaracterized as the "Department" of Youth and Family Services in the caption) was renamed the Division of Child Protection and Permanency. L. 2012, c. 16. We refer to it as the Division in this opinion.